Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 59825 

This direct final rule is not a 

significant regulatory action for the 

purposes of E.O. 12866 and has been 

reviewed by the Office of Management 

and Budget (OMB). The proposed 

amendment is also not a major rule as 

defined in 5 U.S.C. Chapter 8, 

Congressional Review of Agency 

Rulemaking. As required by the 

Regulatory Flexibility Act, we certify 

that this rule will not have a significant 

impact on a substantial number of small 

entities because it makes changes only 

to methods of payment for those using 

NARA services. 

List of Subjects in 36 CFR Part 1258 

Archives and records. 

For the reasons stated in the 

preamble, NARA amends Title 36 of the 

Code of Federal Regulations, part 1258, 

as follows: 

PART 1258—FEES 

■ 1. The authority citation for part 1258 

continues to read as follows: 

Authority: 44 U.S.C. 2116(c) and 2307. 

§ 1258.14 [Removed] 

■ 2. Remove § 1258.14. 

§ 1258.18 [Amended] 

■ 3. In § 1258.18(a), add two commas 

and the words ‘‘, methods of payment,’’ 

after the words ‘‘NARA’s fee schedule.’’ 

Dated: September 25, 2013. 

David S. Ferriero, 

Archivist of the United States. 

[FR Doc. 2013–23904 Filed 9–27–13; 8:45 am] 

BILLING CODE 7515–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2010–0954 and EPA–RO5– 

OAR–2010–0037; FRL9901–31–Region 5] 

Approval and Promulgation of Air 

Quality Implementation Plans; States 

of Michigan and Minnesota; Regional 

Haze 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: In this notice of final 

rulemaking, EPA is disapproving in part 

the Michigan and Minnesota regional 

haze State Implementation Plans (SIPs) 

for failure to mandate best available 

retrofit technology (BART) for taconite 

facilities within these states. This final 

rule supplements a February 6, 2013, 

action that established Federal emission 

limits representing BART for these 

facilities. 

DATES: This final rule is effective on 

October 30, 2013. 

ADDRESSES: EPA has established dockets 

for this action under Docket ID Numbers 

EPA–R05–OAR–2010–0954 and EPA– 

RO5–OAR–2010–0037. All documents 

in the dockets 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 Steven 

Rosenthal, Environmental Engineer, at 

(312) 886–6052 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Steven Rosenthal, Environmental 

Engineer, Attainment Planning and 

Maintenance Section, Air Programs 

Branch (AR–18J), Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 886–6524, 

rosenthal.steven@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 is the background for this action? 

II. What are EPA’s responses to the public 

comments it received? 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. What is the background for this 

action? 

Minnesota submitted its regional haze 

SIP on December 30, 2009, a draft 

supplement on January 5, 2012, and a 

final supplemental submission on May 

8, 2012. EPA proposed approval of the 

Minnesota regional haze SIP on January 

25, 2012 (77 FR 3681). Among other 

actions, the proposed rule proposed to 

conditionally approve Minnesota’s 

regional haze SIP as satisfying the BART 

requirements of the Clean Air Act (CAA 

or the ‘‘Act’’) section 169A(b)(2)(A) and 

40 CFR 51.308(e) for the State’s six 

taconite plants, provided that Minnesota 

submit emission limits representing 

BART prior to EPA’s final action. 

During the comment period on EPA’s 

proposed rule, EPA received comments 

providing evidence that better, costeffective technology for the control of 

taconite plant emissions was available 

that Minnesota (and Michigan) failed to 

adequately consider in the SIP revision. 

Therefore, EPA published a final rule 

approving other aspects of the 

Minnesota regional haze SIP on June 12, 

2012 (77 FR 34801), but deferred action 

on BART for Minnesota’s taconite 

facilities. 

Michigan submitted its regional haze 

SIP on November 5, 2010. EPA 

proposed action on the Michigan 

regional haze SIP on August 6, 2012 (77 

FR 46912). In this action, EPA proposed 

to approve several aspects of Michigan’s 

regional haze SIP, and proposed to 

disapprove Michigan’s BART 

determinations for a Portland cement 

plant and a paper mill and proposed 

Federal limits for those two facilities. 

EPA published final action pursuant to 

this proposal on December 3, 2012 (77 

FR 71533). However, similar to 

Minnesota, EPA deferred action on 

BART for the Tilden Mining taconite 

facility in Michigan. 

On August 15, 2012 (77 FR 49308), 

EPA published a proposed partial 

disapproval and Federal 

Implementation Plan (FIP) for BART for 

taconite plants in Minnesota and 

Michigan. In that action, EPA reviewed 

relevant information regarding the 

technical feasibility of various options 

for the control of emissions from 

taconite plants and reviewed other 

information relevant to determining 

BART for these plants. On February 6, 

2013 (78 FR 8706), EPA published a 

final rule establishing a FIP to 

implement BART for the taconite 

facilities in Minnesota and Michigan. 

Also on February 6, 2013 (78 FR 

8478), EPA supplemented its proposed 

partial disapproval of the Minnesota 

and Michigan SIPs for failure to require 

BART for taconite facilities within these 

states. EPA published this notice in 

response to comments that EPA had not 

adequately explained its rationale for 

proposing to disapprove the States’ 

BART determinations for taconite in its 

August 15, 2012 proposed action. 

II. What are EPA’s responses to the 

public comments it received? 

In response to its supplemental 

proposed rulemaking, EPA received 

comments from ArcelorMittal Minorca 

Mine, Incorporated (ArcelorMittal), 

Cliffs Natural Resources, Inc. (Cliffs), 

U.S. Representative Richard M. Nolan, 

the Minnesota Pollution Control Agency 

mstockstill on DSK4VPTVN1PROD with RULES

59826 Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 

(MPCA), the National Mining 

Association (NMA), and the Michigan 

Department of Environmental Quality 

(MDEQ). The following discussion 

provides a summary of the comments 

and EPA’s responses. The comments by 

ArcelorMittal are essentially identical to 

the comments from Cliffs, except that 

they do not refer to taconite-related 

issues in Michigan. Unless a comment 

by Cliffs is regarding taconite-related 

issues in Michigan, a comment ascribed 

to Cliffs is also from ArcelorMittal. 

A. Comments by Cliffs and/or 

ArcelorMittal 

Comment: The CAA gives primary 

authority for regional haze 

determinations to the states. States are 

responsible for developing and 

implementing the regional haze 

program. States are responsible for 

identifying BART-eligible sources, 

defining BART for each source, 

establishing reasonable progress goals, 

and developing long-term strategies to 

reduce regional haze in class I Federal 

areas. 

The D.C. Circuit affirmed the primacy 

of states in implementing the regional 

haze program in American Corn 

Growers Ass’n v. EPA, 291 F.3d 1 (D.C. 

Cir. 2002). There, the court confirmed 

the primacy of state authority in this 

area by invalidating EPA’s regulations 

on the grounds that they impermissibly 

constrained state authority. EPA has 

only a limited role in evaluating 

regional haze SIPs because the CAA 

calls for states to play the lead role in 

implementing the regional haze 

program. EPA has conceded as much by 

acknowledging that states retain the 

primary responsibility of developing a 

viable visibility program and states must 

determine the appropriate level of 

BART control for each source subject to 

BART. 

Response: Section 110 of the CAA 

requires states to develop SIPs with 

enforceable emission limitations and 

other control measures to meet the 

applicable requirements of the Act. A 

state must then submit its SIP to EPA for 

approval. Congress crafted the Act to 

provide for states to take the lead in 

developing SIPs, but balanced that 

decision by requiring EPA to review the 

SIPs to determine whether a given SIP 

meets all applicable requirements of the 

Act. See CAA sections 110(k)(3) and (l). 

The D.C. Circuit’s decision in 

American Corn Growers did not alter 

this balance. The court’s decision there 

was limited to a holding that EPA could 

not require states to evaluate the first 

four BART factors on a source-specific 

basis, while requiring states to evaluate 

visibility improvement on a group-wide 

basis. In contrast, the Tenth Circuit 

recently affirmed EPA’s authority to 

evaluate regional haze SIPs for 

compliance with all requirements of the 

Act, including the visibility protection 

provisions in section 169A and EPA’s 

implementing regulations at 40 CFR 

51.300–51.309 and 40 CFR pt. 51, app. 

Y. See Oklahoma v. EPA, _ F.3d _ (10th 

Cir. 2013). As discussed in our February 

6, 2013, supplemental proposed 

disapproval, and in the response to 

comments in this final disapproval, EPA 

has determined that, while it agrees 

with Minnesota and Michigan’s 

identification of BART-eligible sources, 

we find that the states did not satisfy the 

requirements for BART for the taconite 

facilities. 

Comment: EPA rushed to issue a FIP, 

apparently leaving EPA without enough 

time to explain to the states how their 

SIPs were deficient. Only now, after 

finalizing its FIP, does EPA stop to ‘‘take 

comments’’ on the basis for its proposed 

disapproval of the SIPs, which is a sham 

that offers no real opportunity for 

commenters to influence the outcome of 

the regional haze process already 

determined by the FIP. EPA should stay 

the FIP until it properly considers 

public comments on its basis for 

disapproving the SIPs. 

Response: In its comments dated 

September 28, 2012, addressing EPA’s 

August 15, 2012, proposed action, Cliffs 

commented that ‘‘EPA’s Proposed Rule 

does not discuss the validity of the 

extensive factual information and 

technical analysis underlying 

Minnesota’s and Michigan’s BART 

determinations,’’ and that ‘‘EPA was 

forcing the public and the States to 

guess at what EPA believes was wrong 

with Minnesota’s and Michigan’s SIP 

submittals.’’ In other words, Cliffs 

commented in September 2012 that EPA 

needed to provide a more extensive 

explanation of its basis for proposing to 

disapprove Minnesota and Michigan’s 

BART determinations for taconite 

facilities, but now believes that the 

opportunity EPA has provided is 

rendered meaningless by the 

promulgation of EPA’s FIP in February 

2012. 

We disagree. As explained in the final 

rule promulgating the FIP, EPA’s FIP 

obligation following a finding of failure 

to submit remains in effect, irrespective 

of a subsequent state SIP submittal, 

unless and until EPA approves the SIP. 

See CAA section 110(c). A FIP is a gapfilling measure only, however. See CAA 

section 302(y). As a result, a FIP 

promulgated by EPA remains in place 

only until a state submits a SIP 

correcting the inadequacy and that SIP 

is approved by EPA. In this instance, 

Cliffs and other commenters had a 

meaningful opportunity to comment on 

EPA’s supplemental proposed 

disapproval and explain why EPA’s 

proposed action was incorrect. Had EPA 

agreed with Cliffs or other commenters 

and approved the Minnesota and 

Michigan BART determinations for 

taconite facilities instead, EPA’s FIP 

would have been replaced. Therefore, 

Cliffs’ assertions are incorrect. 

Nevertheless, we note that Cliffs’ 

request for a stay is now moot because 

the Eighth Circuit has already granted 

such a stay. 

Comment: EPA has a limited role in 

the regional haze process and therefore 

must defer to state determinations that 

meet minimum requirements. EPA’s 

role in the regional haze program is 

limited to approving or disapproving 

SIPs submitted by the states, and EPA 

has limited discretion to disapprove a 

SIP, as outlined by CAA section 110(k). 

The Minnesota SIP was deemed 

complete on June 30, 2010, and the 

Michigan SIP was deemed complete on 

May 5, 2011. Once a SIP is deemed 

complete, EPA has 12 months to act on 

it and ‘‘shall approve such submittal as 

a whole if it meets the applicable 

requirements . . .’’ EPA’s role is limited 

to the ministerial function of reviewing 

SIPs for consistency with the Act’s 

requirements. 

Response: The commenters are correct 

with respect to the schedule in CAA 

section 110(k). However, nothing in this 

section states, or even implies, that EPA 

must automatically approve a SIP 

within 12 months after a SIP is deemed 

complete. Further, this section states 

that EPA shall only approve a SIP if it 

meets all of the applicable requirements 

of the Act. While Congress intended 

states to take the lead in developing 

regional haze SIPs, it balanced that 

decision by requiring EPA to review the 

states’ SIPs to determine whether they 

meet the applicable requirements of the 

Act. EPA’s review is not limited to the 

ministerial function of rubber-stamping 

a state’s decisions. Rather, in reviewing 

regional haze SIPs in general and BART 

determinations in particular, EPA must 

consider not only whether the state 

considered the appropriate factors, but 

also whether the state acted reasonably 

in doing so. In undertaking such a 

review, EPA does not ‘‘usurp’’ the 

state’s authority, but ensures that such 

authority is reasonably exercised. 

Comment: Contrary to EPA’s belief, 

the Ninth Circuit’s decision in Sierra 

Club v. EPA, 671 F.3d 955 (9th Cir. 

2012), does not authorize the Agency to 

disapprove a complete SIP every time 

new information becomes available. The 

Ninth Circuit’s decision rests heavily on 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 59827 

CAA section 172(c)(3)’s requirement 

that nonattainment plans include a 

comprehensive, accurate, current 

inventory of actual emissions. No such 

provision exists in CAA section 169A, 

which governs regional haze. Rather, 

EPA is on record instructing states 

conducting BART determinations that 

‘‘technologies should be considered if 

available before the close of the State’s 

public comment period’’ and that they 

‘‘need not consider technologies that 

became available after this date.’’ That 

is precisely what Minnesota and 

Michigan did, and EPA cannot use a 

decision from a different jurisdiction 

based on different statutory language to 

change course now that it prefers a 

different result. Rather, as the D.C. 

Circuit has held, ‘‘[t]o require states to 

revise completed plans every time’’ new 

information arises ‘‘would lead to 

significant costs and potentially endless 

delays in the approval process.’’ Sierra 

Club v. EPA, 356 F.3d 296, 08 (D.C. Cir. 

2004). 

Response: EPA disagrees about the 

scope of the Ninth Circuit’s decision, 

which states that EPA should evaluate 

any new information available and 

‘‘may not simply ignore it without 

reasoned explanation or choice.’’ Sierra 

Club, 671 F.3d at 967. The Ninth Circuit 

does not couch this statement narrowly 

in the context of EPA’s review of 

nonattainment plan inventories, but 

rather presents it broadly as a principle 

of administrative law. Indeed, the Ninth 

Circuit’s full holding states: ‘‘But we 

should not silently rubber stamp agency 

action that is arbitrary and capricious in 

its reliance on old data without 

meaningful comment on the 

significance of more current compiled 

data. We hold that EPA’s failure to even 

consider the new data and to provide an 

explanation for its choice rooted in the 

data presented was arbitrary and 

capricious.’’ Id. at 968. 

Irrespective of the significance of 

Sierra Club v. EPA, however, Cliffs 

mischaracterizes the technical 

feasibility provisions of the BART 

Guidelines. The statement there that a 

state need not consider technologies 

that are not commercially available by 

the end of the state’s public comment 

period for its SIP bears no relation to the 

question of whether a technology that 

has been commercially available for 

decades, such as low NOX burners, is 

applicable to a specific source. 

Furthermore, even if Cliffs’ incorrect 

reading of the BART Guidelines were 

correct, both Minnesota and Michigan 

were aware that low NOX burners had 

been successfully applied to taconite 

furnaces before the ends of their 

respective public comment periods. In a 

June 23, 2010, letter to Michigan 

regarding the state’s draft regional haze 

SIP, EPA commented that ‘‘a low NOX

main burner firing solid fuels’’ had been 

installed at Minntac and that ‘‘work 

done by other companies had 

demonstrated that burner designs that 

lower flame temperature can reduce 

NOX formation in taconite furnaces.’’ 

Similarly, in a February 10, 2012, letter 

to Minnesota responding to the state’s 

draft regional haze SIP supplement for 

taconite facilities, EPA explained in 

detail that ‘‘U.S. Steel has demonstrated 

the development and use of low NOX

main burners that achieve 70 percent 

NOX reduction on its indurating lines.’’ 

Therefore, both States were well aware 

that low NOX burners had been 

successfully applied to indurating 

furnaces. The states did not provide 

reasonable explanations for dismissing 

this information and instead continued 

to rely on the taconite facilities’ cursory 

and unsupported determinations from 

2006 that low NOX burners were 

technically infeasible. 

Comment: Even if EPA legitimately 

determines that a SIP does not meet the 

minimum criteria for approval after 

giving states appropriate deference, 

EPA’s actions remain proscribed by the 

Act. Section 110(c) permits EPA to issue 

a FIP ‘‘unless the state corrects the 

deficiency’’ EPA identified. Had EPA 

followed the procedure required by the 

Act and addressed the States’ SIPs prior 

to issuing a FIP, any perceived issues 

could have been resolved. 

Response: This comment addresses 

EPA’s final rule promulgating the FIP 

and not EPA’s supplemental proposed 

disapproval and is therefore not relevant 

to this rulemaking. Nevertheless, we 

point out that Cliffs fails to cite the full 

text of CAA section 110(c)(1), which 

states that EPA ‘‘shall promulgate a 

[FIP] at any time within 2 years . . . 

unless the State corrects the deficiency, 

and the Administrator approves the 

plan or plan revision, before the 

Administrator promulgates such [FIP].’’ 

Thus, the plain language of the Act 

requires SIP approval, not merely SIP 

submission, before EPA’s FIP authority 

is tolled. 

Comment: EPA can disapprove a SIP 

only where it fails to meet minimum 

CAA requirements. In the case of 

regional haze, the CAA required 

Minnesota and Michigan to weigh the 

five statutory factors and arrive at 

reasonable BART technology 

determinations. 

Minnesota conducted a 

comprehensive rulemaking process to 

develop its regional haze program, 

beginning with its analysis of taconite 

sources in 2003. Minnesota began 

rulemaking efforts shortly after EPA 

promulgated its revised regulations in 

2005 and invested ‘‘thousands and 

thousands of hours’’ over the next four 

years collecting and analyzing technical 

data, assessing ground-level operating 

information to make BART 

determinations that properly weighed 

the five statutory factors from its unique 

local perspective. After carefully 

reviewing all comments and analyzing 

all available information, on December 

31, 2009, Minnesota submitted a 

detailed SIP to EPA that contained a 

determination of the technology that 

was BART for each taconite furnace in 

the state and for each regional haze 

pollutant. This SIP was supported by 

more than 1,000 pages of analysis. 

Similarly, Michigan began working to 

meet its regional haze obligations soon 

after the finalization of EPA’s revised 

regional haze regulations and its state 

guidelines for BART determinations. 

After reviewing all comments and 

analyzing all available information, on 

November 5, 2010, Michigan submitted 

a detailed SIP to EPA with extensive 

technical support totaling 1,187 pages 

that identified BART for taconite plants. 

Those submittals demonstrate that 

both states met their statutory regional 

haze SIP burden, including for BART 

determinations. EPA must give the 

states’ findings the very same deference 

that EPA so often claims it should 

receive when it holds the primary role 

in developing a substantive standard. 

Response: EPA addressed these very 

general comments in our February 6, 

2013 supplemental proposed 

disapproval and addresses these them 

further in our responses to the more 

specific comments that follow. The 

commenters fail to note that the states’ 

(December 31, 2009 and November 5, 

2010) SIPs that included thousands of 

pages lacked, among other things, actual 

NOX emission limits for taconite 

facilities. The States are not entitled to 

deference in this instance because of the 

numerous gaps and inadequacies in 

their SIPs, as described in the 

supplemental proposed disapproval and 

in the responses to comments that 

follow. 

Comment: Minnesota and Michigan 

properly concluded that low NOX

burners were not available or 

technically feasible for taconite furnaces 

at the close of the public comment 

periods. Pursuant to the BART 

Guidelines, Minnesota and Michigan 

identified low NOX burners as an 

available control technology at Step 1 of 

the BART analysis. ‘‘Available’’ at Step 

1 means that the technology has a 

‘‘practical potential for application to 

the emissions unit.’’ At Step 2 of the 

mstockstill on DSK4VPTVN1PROD with RULES

59828 Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 

BART analysis, the technologies in Step 

1 are evaluated for technical feasibility. 

To be considered technically feasible, 

technology that has not been installed 

and operated on the source type in 

question must be both ‘‘available’’ and 

‘‘applicable.’’ Availability under Step 2 

is defined differently than it is under 

Step 1. Under Step 2, ‘‘availability’’ 

means commercial availability. A 

technology is only considered 

commercially available if it is past 

bench scale and pilot testing stages and 

has reached the licensing and 

commercial sale stages. ‘‘Applicability’’ 

is a technical determination that takes 

into account the technical difficulties 

that may prevent application of 

available technology to the source in 

question, such as size and space 

constraints, reliability, and operating 

problems. The ability to secure vendor 

guarantees is also relevant to the 

applicability determination. 

EPA attempts to argue that the general 

existence of low NOX burner technology 

in other, dissimilar applications means 

they are technically feasible for the 

combustion zones of taconite furnaces 

under Step 2 of the BART analysis. On 

the contrary, the BART Guidelines 

identify the close of a state’s public 

comment period as the cut-off point 

after which newly ‘‘available’’ 

technologies need not be considered by 

the states. The public comment period 

for Minnesota’s BART technology 

determinations closed on May 16, 2008, 

and its supplemental comment period 

on other aspects of the proposed SIP 

ended September 3, 2009. Michigan’s 

public comment period on its non-EGU 

BART technology determinations closed 

on June 23, 2010. Thus, based on 

Minnesota and Michigan’s reasoned 

decisions to follow the BART 

Guidelines, only technologies that were 

‘‘available’’ on May 16, 2008, and June 

23, 2010 (respectively) could be 

considered. 

EPA also implies that the States did 

not evaluate low NOX burners at all in 

their BART determinations when in fact 

both States did identify low NOX

burners as ‘‘available’’ at Step 1 for 

every taconite facility. Minnesota and 

Michigan acknowledged that low NOX

burners had been used in other 

applications such as boilers, but 

properly determined that low NOX

burners were ‘‘available’’ under Step 2 

only for the preheat sections of the 

furnaces. None of Cliffs’ facilities 

operate preheat burners, so low NOX

burners were not technically feasible for 

any of its indurating furnaces. 

Furthermore, EPA’s statement that 

Minnesota possessed information 

suggesting that low NOX burners were 

‘‘likely to be a successful technology’’ 

for the main burners of taconite furnaces 

in 2009 is wholly without support. The 

record demonstrates that Minnesota and 

Michigan properly determined that low 

NOX burners were not ‘‘available’’ for 

the combustion zones of taconite 

furnaces by the end of the public 

comment periods. At the time 

Minnesota was developing its SIP, low 

NOX burners had never been installed in 

an application comparable to a taconite 

main burner. The Minntac studies EPA 

cites to in support of its claim of 

commercial availability only further 

support the States’ positions. Minntac 

did not even begin pilot testing a new 

low NOX burner for its grate-kiln 

furnaces until May 2010. That leaves no 

doubt that low NOX burners in the 

combustion zone were unavailable at 

the time Minnesota was making BART 

technology determinations because its 

public comment period closed months 

before pilot testing even began. That 

testing began four months after the close 

of Michigan’s public comment period 

and continued through 2011. Minntac’s 

status reports from May and December 

2011 further confirm that low NOX

burners were still in the development 

stage through 2011. Further, Minntac 

identified a number of problems that 

required modifications to the initial 

burner and other adjustments. Despite 

all of these adjustments, Minntac never 

achieved the desired emission rates 

while combusting coal. The Essar low 

NOX burner studies for straight-grate 

furnaces were even further behind in 

the testing stages than the Minntac 

studies at the time of both SIP 

submissions. The 1⁄4-scale test facility 

was not built until 2011 and final 

results were not submitted until August 

2011. 

Finally, the information on low NOX

burners discussed above was available 

to EPA at the time it proposed approval 

of Minnesota’s regional haze SIP in 

January 2012. EPA cannot now claim 

that it ‘‘did not have the relevant 

information’’ on low NOX burners until 

after it initially proposed approval of 

Minnesota’s regional haze SIP. 

Response: Due to the complexity of 

Cliffs’ lengthy comment and the 

interconnectedness of its constituent 

arguments, it is being addressed by a 

single response. However, each of the 

four major points raised by Cliffs are 

specifically identified and addressed 

accordingly. 

EPA agrees with Cliffs that a 

technology that is both ‘‘available’’ and 

‘‘applicable’’ is technically feasible 

under Step 2 of the case-by-case BART 

analysis required under the BART 

Guidelines. Cliffs is also correct that the 

term ‘‘available’’ has somewhat different 

meanings under Step 1 and Step 2. 

Under Step 1, ‘‘[a]vailable retrofit 

control options are those air pollution 

technologies with a practical potential 

for application to the emission unit and 

the regulated pollutant under 

evaluation.’’ EPA interprets this use of 

the term ‘‘available’’ broadly to include 

all potential control options, even those 

that are cutting-edge or are not currently 

in use at the source type in question. 

Under Step 2, ‘‘[a] control technique is 

considered available . . . if it has 

reached the stage of licensing and 

commercial availability.’’ EPA’s 

interpretation of this use of the term 

‘‘available’’ is slightly less broad, and 

includes only those control options that 

can be obtained through ordinary 

commercial channels. 

However, EPA strongly disagrees with 

Cliffs attempts to conflate the concept of 

‘‘availability’’ under Step 2, with the 

separate concept of ‘‘applicability.’’ 

While it is true that control technologies 

that are not ‘‘available’’ through 

ordinary commercial channels by the 

end of a state’s public comment period 

need not be considered as BART, the 

same is not true with regards to the 

question of ‘‘applicability.’’ In regards to 

this latter question, states ‘‘need to 

exercise technical judgment in 

determining whether a control 

alternative is applicable to the source 

type under consideration.’’ Moreover, ‘‘a 

commercially available control option 

will be presumed applicable if it has 

been used on the same or a similar 

source type.’’ 

In the instant context, low NOX

burners are an ‘‘available’’ control 

technology under Step 2 because they 

can be obtained through ordinary 

commercial channels. Indeed, Fives 

North American and other low NOX

burner manufacturers would 

presumably dispute the notion that their 

products, which have been on the 

market for decades, are not 

commercially available as Cliffs 

contends. As a result, Minnesota and 

Michigan were required to exercise their 

technical judgment as to whether low 

NOX burners were ‘‘applicable’’ to 

taconite furnaces. In light of the 

successful installation of low NOX

burners at Minntac and Essar, which 

both states were aware of prior to the 

ends of their respective public comment 

periods, Minnesota and Michigan were 

further required to presume the 

applicability of low NOX burners for 

taconite furnaces because they were in 

use not just at a similar source type, but 

at the same source type. Since neither 

Minnesota nor Michigan adequately 

rebutted this presumption or responded 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 59829 

1The comment period for Michigan’s regional 

haze SIP closed on June 23, 2010. The comment 

period for the Minnesota’s regional haze SIP 

supplement regarding BART at taconite facilities 

closed on February 3, 2012, but EPA was granted 

an extension to submit comments. EPA’s comments 

were submitted on February 10, 2012, and were 

received and considered by MPCA. 

2See Michigan Regional Haze plan: EPA Letter to 

Michigan Department of Environmental Quality 

Regarding BART, May 24, 2012 (Docket # EPA– 

R05–OAR–2010–0954–0008). 3See MN Haze plan, EPA 2–10–12 comments to 

MPCA in MN May 8,2012, Suppl. Regional Haze 

SIP submittal (Docket # EPA–R05–OAR–2010– 

0037–0028). 

to comments, but instead relied 

primarily on cursory technical 

feasibility analyses performed by the 

taconite companies and their 

contractors in 2006, the states did not 

comply with the BART Guidelines or 

reasonably ‘‘take into consideration the 

technology available’’ or determine the 

‘‘best system of continuous emission 

reduction.’’ See 40 CFR 51.301 and 

51.308(e)(1)(ii)(A). 

Contrary to the commenters’ 

assertions, both states were aware that 

low NOX burners had been successfully 

installed on two lines at U.S. Steel’s 

Minntac facility prior to the end of their 

respective periods for public comment.1

In a June 23, 2010, letter to the Michigan 

Department of Natural Resources and 

Environment (now the MDEQ) regarding 

the state’s draft regional haze SIP, EPA 

commented that ‘‘a low-NOX main 

burner firing solid fuels’’ had been 

installed at Minntac and that ‘‘work 

done by other companies had 

demonstrated that burner designs that 

lower flame temperature can reduce 

NOX formation in taconite furnaces.’’ 2

Similarly, in a February 10, 2012, letter 

to the Minnesota Pollution Control 

Agency responding to the state’s draft 

regional haze SIP supplement for 

taconite facilities, EPA explained in 

detail that ‘‘U.S. Steel has demonstrated 

the development and use of low NOX

main burners that achieve 70 percent 

NOX reduction on its indurating 

lines.’’ 3 In addition to these comments, 

both states received comments regarding 

the technical feasibility of low NOX

burners from the Forest Service as well. 

Therefore, both Michigan and 

Minnesota were aware that low NOX

burners had been successfully applied 

to indurating furnaces, and the 

commenters’ arguments that the results 

of these studies somehow constitute 

‘‘new’’ information are without merit. 

Finally, even if information regarding 

the technical feasibility of installing low 

NOX burners to indurating furnaces was 

not available to Minnesota or Michigan, 

EPA nonetheless had a duty to consider 

any new information that subsequently 

arose when reviewing the states’ SIPs. 

The Ninth Circuit recently held that ‘‘if 

new information indicates to EPA that 

an existing SIP or SIP awaiting approval 

is inaccurate or not current, then, 

viewing air quality and scope of 

emissions with public interest in mind, 

EPA should properly evaluate the new 

information and may not simply ignore 

it without reasoned explanation of its 

choice.’’ Sierra Club v. EPA, 671 F.3d 

955, 967 (9th Cir. 2012). Thus, EPA is 

required, at a minimum, to take new 

information into account during the SIP 

approval process and, if necessary, alter 

its final decision accordingly. 

EPA also disagrees with the 

commenters’ assertions that low NOX

burners are only commercially available 

for the preheat sections of indurating 

furnaces. The commenters statement 

that ‘‘Minnesota and Michigan 

acknowledged that low NOX burners 

had been used in other applications 

such as boilers, but properly determined 

that low NOX burner technology was 

‘available’ only in the preheat sections 

of the furnaces’’ again confuses the 

concepts of availability and 

applicability. A control technology 

cannot be commercially available for 

one application, such as the preheat 

sections of the indurating furnaces, but 

not commercially available for another. 

Rather, the question is whether the 

commercially available control 

technology can be applied to the 

different situations. 

In regards to the installations at 

Minntac and Essar, a January 30, 2009, 

report prepared by Hatch for U.S. Steel 

strongly recommended that U.S. Steel 

pursue all available technology and 

potential options pertaining to reducing 

the amount of NOX emissions generated 

by the rotary kiln at the Minntac facility, 

including the use of a low NOX burner. 

The feasibility of low NOX burners on 

straight-grate kilns is documented in a 

September 19, 2011 summary of 

findings presented to the Minnesota 

Pollution Control Board by Fives North 

American Combustion, Inc. (Fives) for 

Essar. Also, reports on the success of 

U.S. Steel’s efforts to use low NOX

burners were submitted to Minnesota in 

2010 and 2011, well before the close of 

the State’s comment period on its 

supplemental regional haze SIP in 

February 2012. These reports, coupled 

with the comments both Minnesota and 

Michigan received regarding the 

applicability of low NOX burners to 

taconite facilities, put the States on 

notice that the cursory technical 

infeasibility determinations in their 

regional haze SIPs were not only 

inadequate, but inconsistent with a 

documented installation. 

Finally, EPA acknowledges that it was 

aware that low NOX burners were being 

installed at U.S. Steel’s Minntac facility 

in 2010, two years before EPA initially 

proposed conditional approval of 

Minnesota’s BART determinations for 

taconite facilities. However, EPA only 

became aware of the U.S. Steel test 

reports from Minntac confirming the 

successful implementation of low NOX

burners from comments received in 

response to the January 2012 proposed 

rulemaking. Moreover, commenters 

urged EPA to take a harder look at the 

technical feasibility of low NOX burners 

and the adequacy of Minnesota’s BART 

determinations for taconite facilities. 

EPA considered the comments and 

performed additional analysis, which is 

exactly the purpose of the public notice 

and comment period. Agencies are not 

required to finalize proposed decisions 

in the face of public comments that 

present compelling evidence that an 

agency’s proposed course of action was 

incorrect. 

Comment: Minnesota and Michigan 

properly determined that Good 

Combustion Practices (GCP) are BART 

for taconite furnaces. After identifying 

all technically feasible control options, 

the states performed cost-effectiveness 

analyses for each furnace and 

determined that no other controls would 

result in cost-effective NOX reductions. 

GCP will ensure that furnaces are 

running at their most efficient 

capabilities to complete combustion 

while consuming as little fuel as 

possible, which will reduce fuel-based 

NOX emissions and minimize thermal 

NOX by producing only the heat needed 

to make quality pellets. The states 

performed a proper BART analysis, 

weighing the five statutory factors to 

arrive at this control option, and EPA 

has no grounds for questioning that 

judgment. 

EPA cannot credibly attack the 

legitimacy and enforceability of GCP, as 

EPA itself already requires taconite 

furnaces to employ GCP as part of the 

Taconite MACT, which requires all 

sources to ‘‘identify and implement a set 

of site-specific GCP for each type of 

indurating furnace’’ that ‘‘correspond to 

. . . standard operating procedures for 

maintaining the proper and efficient 

combustion within each indurating 

furnace.’’ GCP includes maintaining 

minimum combustion temperatures and 

maximum CO concentrations in the 

furnace exhaust gases, and ensuring 

proper burner alignment and fuel-air 

distribution and mixing. GCP also 

requires routine inspections, 

preventative maintenance, and 

performance analyses. The requirement 

to employ and demonstrate compliance 

mstockstill on DSK4VPTVN1PROD with RULES

59830 Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 

with GCP is a federally enforceable 

requirement that has been incorporated 

by reference into the Title V permits for 

each facility. The operation and 

maintenance plans containing these 

GCP requirements were submitted to the 

state for each facility to ensure that they 

satisfied the GCP requirements set forth 

by EPA. 

All of Cliffs’ facilities were required to 

employ GCP as part of their Taconite 

MACT compliance obligations by 

October 2006, and were necessarily 

employing GCP when they were later 

required by Administrative Order (AO) 

to conduct NOX testing to establish 

numeric NOX BART emission limits. 

There is no merit to EPA’s contention, 

therefore, that sources failed to use GCP 

while testing under a ‘‘worst-case’’ 

scenario to establish NOX BART 

emission limits. BART limits apply at 

all times, and therefore it is important 

to establish a limit that sources can meet 

under all operating conditions. As such, 

the state AOs required extended testing 

to gather over 150 data points that 

reflected GCP under a full range of 

normal operating conditions. The GCPbased NOX limits act as further 

assurance that sources will continue to 

employ GCP to remain in compliance. 

EPA may not make an about-face on 

its approval of GCP and the emission 

limits reflecting these controls when 

nothing has changed since its proposed 

approval. EPA has no basis for changing 

its position and claiming that the new 

federally enforceable practices and 

emission limits it had already found 

acceptable are no longer satisfactory. 

Contrary to EPA’s claims, the amended 

state SIPs continue to require GCP along 

with process modifications, and 

continue to contain emission limits (or 

plans to develop emission limits) based 

on those controls. 

Even if EPA could demonstrate that 

additional NOX reduction technologies 

were available during the states’ 

assessment of BART for taconite 

furnaces, NOX BART demonstrations 

will not materially change because 

availability is just one of the criteria for 

a BART determination. Low NOX burner 

technologies also fail as BART because 

they will not produce any discernible 

visibility improvement. 

Response: EPA does not agree that 

Minnesota and Michigan properly 

determined that GCP is BART for 

taconite furnaces and that it identified 

all technically feasible control options. 

In its one-size-fits-all approach to 

establishing BART, with an essentially 

identical analysis for each taconite 

facility, Minnesota dismissed low NOX

burners in the indurating section of the 

furnace based on speculation that they 

would adversely affect pellet quality. 

However, not only was this position 

unsupported by corroborating data, but 

U.S. Steel has demonstrated the 

technical feasibility of low NOX burners 

and documented that they do not 

adversely affect pellet quality. 

EPA also disagrees that GCP 

underwent a five factor analysis as 

required by the Act and the Regional 

Haze Rule. In appendix 9.3 of its 2009 

BART Determinations, MPCA states: 

‘‘However, the MPCA believes that 

neither ArcelorMittal nor the MPCA has 

sufficient operating parameter data or 

emissions data to be able to assess 

whether current combustion practices 

constitute ‘good’ combustion practices. 

. . .’’ MPCA basically established an 

undefined concept, with no specified 

emission reduction potential, as BART. 

Without identification of a specific and 

quantifiable control requirement, there 

is no basis for a five factor analysis. 

There is similar language for 

Minnesota’s other taconite facilities. 

Michigan also identified an unspecified 

GCP, without a NOX emission limit, as 

BART. In addition, Minnesota’s 2012 

regional haze SIP supplement failed to 

provide any indication of what GCP is 

and what effect it has on emissions. 

The commenters’ support of GCP 

lacks merit for several reasons, 

especially because GCP is not defined 

by Minnesota or Michigan. Neither 

State’s regional haze SIP contained an 

assessment of combustion practices, an 

analysis of operating parameters in 

relation to emissions, or a definition of 

operating practices that constitute GCP. 

Such an assessment would be needed to 

establish GCP, and the lack thereof 

further diminishes GCP as being a 

meaningful control measure for the 

taconite furnaces. In addition, GCP is 

not typically considered to be a NOX

reduction technique. As a relevant 

example, the January 30, 2009, NOX

Reduction Analysis performed by Hatch 

for U.S. Steel’s Minntac facility fails to 

list GCP as a potential NOX reduction 

technology for an indurating furnace. As 

another example, the 2008 BACT 

analysis for JEA—Greenland Energy 

Center Units 1 and 2 also fails to list 

GCP as a potential NOX control. This 

analysis goes on to state that measures 

taken to minimize the formation of NOX

during combustion inhibit complete 

combustion, which increases the 

emissions of carbon monoxide (CO). In 

other words, GCP, which seeks to 

promote complete combustion rather 

than inhibit it, would tend to increase 

NOX emissions. The ‘‘September 2010 

We Energies Biomass Energy Project 

Revised Control Technology Review for 

Carbon Monoxide Emissions for the 

Biomass-Fired Boiler’’ also discusses the 

inverse relation between NOX emissions 

and CO emissions, indicating how 

improving combustion efficiency can 

increase NOX emissions. In conclusion, 

the basic principles of combustion do 

not vary according to the nature of the 

burner application and GCP is not an 

accepted approach to reduce NOX

emissions. 

The commenters state that GCP is 

already required under other Federal 

regulations, including the Taconite 

MACT rule. However, GCP for the 

MACT is not the same as GCP for NOX. 

GCP for the MACT is to control 

products of incomplete combustion 

(PIC). To minimize PIC, the operating 

conditions targeted are generally the 

opposite of those that would be targeted 

for reducing NOX. The Taconite MACT 

explains at 68 FR 61883: ‘‘The basic 

method used in reducing NOX

emissions is a reduction in combustion 

temperature, which is the opposite 

strategy needed for minimizing PIC (i.e. 

increasing combustion temperature).’’ 

Therefore, the operation and 

maintenance plans referred to by the 

commenters to ensure that they satisfied 

the GCP requirements in the Taconite 

MACT would therefore specify 

conditions that would increase NOX

emissions, not reduce them. 

Finally, the commenters’ statement 

that ‘‘[l]ow NOX burner technologies 

also fail as BART because they will not 

produce any discernible visibility 

improvement’’ is not germane to this 

rulemaking. Minnesota and Michigan’s 

regional haze SIPs did not assess the 

visibility improvement associated with 

low NOX burners, or conduct a five 

factor analysis at all, because the States 

improperly rejected the technology as 

technically infeasible. To the extent that 

Cliffs is attempting to comment once 

again on EPA’s visibility analysis for 

low NOX burners that was conducted as 

part of the FIP, that rulemaking has been 

finalized. 

Comment: Michigan modeling 

adequately demonstrates that SO2

emissions from Tilden do not cause 

visibility impairment. Michigan 

conducted source-specific modeling 

using CALPUFF to justify its conclusion 

that SO2 emissions from Tilden Mining 

do not cause visibility impairment in 

Class I areas. When Cliffs’ consultant 

conducted the proper CAMx modeling 

for Tilden, the results fully supported 

Michigan’s conclusion that SO2

emissions do not cause visibility 

impairment. On the 98th percentile 

most impacted day, the visibility 

improvement at Isle Royale, when 

isolating the sulfate impact, was just 

0.14 deciviews. Cliffs’ updated visibility 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 59831 

modeling fully supports Michigan’s 

determination that SO2 reductions at 

Tilden Line 1 will not create sufficient 

visibility improvement to justify the 

expense of controls. 

Response: This comment is of limited 

relevance because the issue raised by 

this comment was not a basis for 

disapproval. However, Cliffs’ own 

modeling shows a combined impact of 

0.24 deciviews at Isle Royale, 

Voyageurs, and Boundary Waters. In the 

discussion of the modeling results, 

Cliffs’ report provides visibility impact 

thresholds to provide context for these 

results. The report states that a 0.10 

deciview difference was defined by 

other states, such as the northeastern 

states’ MANE–VU Regional Planning 

Organization, as the degree of visibility 

improvement below which additional 

controls would not be justified. Under 

such a threshold, even the 0.14 

deciview improvement Cliffs’ modeled 

for Isle Royale (if proven to be accurate) 

would be sufficient to require costeffective controls. 

Comment: CEMS are not required by 

the CAA, EPA’s regulations 

implementing the Regional Haze 

program, or the BART Guidelines. The 

states instead have flexibility to choose 

an appropriate compliance 

demonstration method as long as it is 

sufficient to show compliance or 

noncompliance, contains a reasonable 

averaging period consistent with 

established reference methods, and 

provides adequate recordkeeping and 

reporting for the agency to confirm the 

source’s compliance status. Also, 

consistent with the monitoring 

flexibility authorized under the BART 

Guidelines, MPCA accepted CEMS data 

or a ‘‘comparable method of emission 

estimation’’ from each BART-affected 

source for purposes of establishing 

BART emission limits. 

Response: This comment fails to 

acknowledge or address the primary 

concern identified in EPA’s 

supplemental proposed disapproval, 

namely that absent a CEMS 

requirement, EPA did not find the 

emission limits in Minnesota’s regional 

haze SIP to be enforceable. Even with a 

30-day stack testing option in the SIP, 

EPA believes (as discussed in the 

supplemental proposed disapproval) 

that the results from this method could 

be challenged at any time as not 

representative. Minnesota’s regional 

haze SIP lacked clarity as to the method 

to be used to determine compliance, 

while Michigan had no relevant 

emission limits whatsoever addressing 

BART requirements. 

Comment: EPA does not require 

CEMS in many of its rules, implicitly 

acknowledging that CEMS are not 

necessary to demonstrate continuous 

compliance with emission limits. EPA 

has adopted parametric monitoring 

systems for other regulatory 

requirements that are designed to ensure 

compliance with health-based emission 

limits, including the Taconite MACT. 

Response: EPA does acknowledge that 

not all regulations published in the 

Code of Federal Regulations require a 

CEMS. However, EPA stresses that SIPs 

are approvable only if the emission 

limits contained therein are enforceable, 

which requires some method(s) to 

demonstrate compliance. EPA continues 

to believe that Minnesota failed to 

require appropriate methods to 

demonstrate compliance, while 

Michigan’s SIP contained no NOX BART 

limit at all. Minnesota’s limits are 

expressed as 30-day rolling averages and 

CEMS are needed to determine 

compliance with a 30-day rolling 

average on a continuing basis, but 

Minnesota in many cases does not 

require CEMS to provide data for 

evaluating compliance. In the absence of 

CEMS, Minnesota requires ‘‘stack 

testing . . . for 30 hourly data points.’’ 

Even if the average of the 30 data points 

exceeds the emission limit, the data can 

be contested as not necessarily 

representative of the 720 hours that are 

in a 30-day average. Minnesota has not 

addressed whether 720 consecutive 

hours of stack testing is even 

practicable, though none of the data 

used to develop emission limits appears 

to have been collected in this manner. 

Comment: Minnesota and Michigan 

were aware of numerous operating 

difficulties that have been experienced 

with CEMS usage at taconite furnaces. 

Unlike EPA, the states understood that 

installing CEMS on a taconite furnace is 

significantly more complex than 

installing CEMS on a boiler. United 

Taconite found it necessary to seek 

multiple approvals from MPCA to 

extend its CEMS certification deadline 

due to CEMS maintenance difficulties, 

and U.S. Steel’s Minntac facility, which 

uses CEMS for NOX monitoring, 

experienced similar problems with its 

original CEMS installation for lines 6 

and 7. 

Response: Comments regarding the 

difficulties of operating CEMS are not 

germane to the question of whether the 

limits adopted by Minnesota can be 

properly enforced without them. In any 

case, the initial problems faced by U.S. 

Steel’s Minntac facility were resolved 

shortly after they occurred and have not 

reoccurred since then. EPA continues to 

believe that Minnesota’s SIP failed to 

require appropriate methods for 

assessing compliance with its taconite 

plant emission limits. 

Comment: Minnesota and Michigan 

sensibly concluded that requiring CEMS 

would add an unnecessary additional 

cost to their BART determinations that 

was not warranted. This conclusion is 

further supported by updated cost 

analyses for CEMS at Cliffs’ taconite 

furnaces, which indicate capital costs of 

$1 million to $1.4 million per furnace 

for CEMS installation, plus hundreds of 

thousands of dollars in additional 

operating costs for each emission unit. 

Response: Again, this comment 

appears to be an untimely comment on 

EPA’s FIP and is not germane to EPA’s 

proposed finding that Minnesota did not 

provide suitable methods for enforcing 

its emission limits. Cliffs provides a 

table in attachment B to its comments 

that lists installed capital costs of 

CEMS. As one example, the installed 

capital cost for Hibbing Line 1 is listed 

at $1.2 million dollars. The table also 

lists additional costs associated with 

this line’s CEMS, including: (1) Annual 

labor at $311,250 and (2) parts and 

equipment at $97,600 per year, 

estimating the net present value (NPV) 

of installed CEMS to be $4,430,922. EPA 

used the number of CEMS that Cliffs 

specified it would need for Hibbing Line 

1, as well as some additional costs (like 

scaffolding and platforms for brand new 

installations), in its standard CEMS cost 

spreadsheet (available at: http://

cfpub.epa.gov/oarweb/mkb/

contechnique.cfm?ControlID=26). Under 

this spreadsheet, EPA was unable to 

come close to duplicating the costs 

claimed by Cliffs. EPA is confident that 

the installation of CEMS at Cliffs’ 

facilities will be substantially less than 

$1.0 to $1.4 million dollars/furnace. 

Even under very extreme circumstances, 

costs for multiple CEMS would barely 

reach one-third of the costs claimed by 

Cliffs. 

Comment: Minnesota made all 

pertinent aspects of the BART 

determinations enforceable through 

Administrative Orders (AOs). First, EPA 

questions Minnesota’s decision to 

express the SO2 limits as lbs SO2/long 

ton of pellets produced for Northshore 

and Hibbing, claiming that ‘‘pellet 

production is not routinely measured’’ 

and that the AOs do not require 

recordkeeping of pellet production. 

However, pellet production must be 

routinely measured for business 

purposes, as finished pellets make up 

the entire sales business of each plant. 

Production tonnage is measured and 

cross-checked by a series of calibrated 

conveyer belt scales on a continuous 

basis. 

mstockstill on DSK4VPTVN1PROD with RULES

59832 Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 

4As indicated in an 11–29–12 email exchange, 

Cliffs agreed to use lower sulfur fuels with the 

result of reducing its SO2 emissions by half. 

5As indicated in an 11–29–12 email exchange, 

Cliffs agreed to switch to natural gas, thereby 

reducing its SO2 emissions by at least 80 percent. 

Second, EPA questions the 

enforceability of NOX emission limits 

for Hibbing because the AO for that 

facility provides Hibbing an opportunity 

to demonstrate the NOX limits in the AO 

are not feasible. Enforceable NOX limits 

apply to Hibbing at all times. 

Finally, EPA’s concerns over the 

enforceability of the CEMS requirement 

for Hibbing are similarly groundless. 

The AO requires Hibbing to submit a 

plan to install a CEMS on Line 2 within 

60 days of the effective date of the AO, 

and installation and certification of the 

CEMS no later than one year from the 

due date of the plan. 

Response: EPA is not suggesting that 

Cliffs fails to measure pellet production 

sufficiently for sales and other business 

purposes. However, there is no 

indication that Cliffs measures the 

quantity of finished pellets produced 

each day on each line. Such daily 

measurements on each line would be 

necessary to establish compliance with 

a limit measured in lbs SO2/long ton of 

pellets, on a 30-day rolling average, as 

specified in the AOs. Although the AOs 

contain a general requirement for 

retaining records of operational 

parameters related to emissions, there is 

no explicit requirement for maintaining 

daily records of the finished production 

from each line. Such records would be 

necessary for determining compliance 

with the lbs SO2/long ton limits. 

With respect to the commenters’ 

second point, EPA agrees that 

Minnesota set a NOX limit that will 

apply to Hibbing’s line 2. However, 

there are no specific criteria in the 

Minnesota SIP or the AO for Hibbing to 

ensure that an alternative limit, were it 

to be established, would be set in such 

a manner so as to satisfy BART. Also, 

the AO did not provide that the 

alternative limit had to be in the form 

of a SIP revision so as to be Federally 

enforceable as required by the Act. 

Finally, EPA understands that the AO 

requires Hibbing to submit a plan to 

install a CEMS on Line 2, and possibly 

on Lines 1 and 3. Although there is an 

explicit requirement for a plan that 

provides for installation of the CEMS, 

there is not an actual requirement that 

the CEMS be installed. 

Comment: Michigan and Minnesota 

appropriately determined BART for SO2

after conducting a case-by-case 

evaluation of taconite pelletizing 

furnaces. Minnesota concluded that 

existing wet scrubbers for particulate 

control used at the Hibbing, Northshore, 

and United Taconite Line 1 furnaces 

would constitute BART when operated 

to also control SO2 emissions. 

Minnesota’s BART determination for 

United Taconite Line 2 was complicated 

by an intervening expansion project that 

relied on fuel blending to reduce 

emissions. Minnesota set the numeric 

BART limits for United Taconite at a 

level more stringent than the level the 

wet scrubbers alone were expected to 

consistently achieve. Cliffs retained the 

flexibility under the SIP to meet this 

SO2 limit by installing a polishing 

scrubber or by adjusting the sulfur 

content in its fuel blend. 

EPA claims that Minnesota’s BART 

determination for United Taconite is not 

approvable because it did not reconsider 

the cost-effectiveness of flue gas 

desulfurization (FGD) after the 

expansion project. However, EPA 

cannot reject the SIP on this basis 

because EPA’s own BART 

determination, in the final taconite FIP, 

also concluded that FGD is not costeffective for United Taconite. Given 

United Taconite’s ability to blend 

existing fuels, United Taconite’s 

anticipated actual baseline SO2

emission rate will be low enough to 

render a reduction from FGD not costeffective. EPA reached the same 

conclusion that Minnesota reached in 

its SIP that BART for SO2 at United 

taconite was an emission limit, not a 

control device. The FIP emission limit 

reflects a significant SO2 reduction that 

can be accomplished through fuel 

blending or polishing controls, which is 

precisely the BART technology 

determination that EPA claims to object 

to in the SIP. The 0.6-percent sulfur 

content that EPA adds in the FIP does 

not reduce emissions and does nothing 

to advance regional haze goals. EPA’s 

objection to Michigan’s SO2 BART 

determination for Tilden Line 1 must 

fail on the same basis. Tilden has also 

indicated that it will adjust fuels to 

ensure that baseline SO2 emissions 

cannot justify FGD as a cost-effective 

control. Therefore, Michigan 

appropriately set an SO2 limit for Tilden 

that did not reflect expensive add-on 

controls. 

Response: EPA’s FIP did not require 

FGDs because in November, 2012, EPA 

agreed that FGDs would not be 

necessary at United Taconite and Tilden 

because Cliffs stated an intention at that 

time to switch to lower sulfur fuels that 

would result in lower SO2 emissions. 

However, Minnesota and Michigan’s 

BART analyses were based upon the use 

of high sulfur fuels. 

Therefore, this comment is largely 

misdirected because it is based upon 

EPA’s FIP and not on the adequacy of 

Minnesota and Michigan’s BART 

determinations. The commenter’s 

assertion that EPA reached the same 

conclusion that Minnesota reached in 

its SIP is irrelevant because EPA made 

its determination based upon United 

Taconite’s anticipated use of low sulfur 

fuels (with much lower SO2 emissions) 

than the high sulfur coal in use by 

United Taconite currently, and upon 

which Minnesota’s determination of 

BART was based.4 EPA agreed that 

FGDs are not BART at this anticipated 

lower emission rate, but does not agree 

that FGDs are not BART when United 

Taconite is burning high sulfur coal. 

The commenter goes on to object to the 

0.6-percent sulfur content limit in the 

FIP. This sulfur content restriction is 

also not relevant to whether or not 

Minnesota’s SIP is approvable because it 

was neither suggested as a control 

option by the commenter at the time of 

Minnesota’s rulemaking, nor considered 

by Minnesota. 

EPA therefore maintains its position 

that Minnesota improperly rejected the 

use of FGD as a cost-effective 

technology for reducing SO2 emissions 

from United Taconite’s two lines. Also, 

as discussed in the August 15, 2012, 

proposed action, EPA believes that flue 

gas scrubbing, particularly in 

combination with proper fuel blending, 

is considerably more cost-effective than 

the cost-effectiveness estimates in 

Minnesota’s regional haze SIP. 

Furthermore, subsequent to Minnesota’s 

initial BART analysis, United Taconite 

switched to using high sulfur fuels on 

both of its lines, thus making FGD a 

more appropriate control measure to be 

considered. 

Similarly for Michigan, EPA agreed 

that if Tilden switches to 100-percent 

natural gas,5 the use of an FGD would 

not be cost-effective. However, 

Michigan’s BART determination was 

based upon the use of high sulfur coal. 

As indicated in EPA’s August 15, 2012 

proposed action, EPA determined that 

an FGD would be more cost-effective 

than indicated by the Michigan regional 

haze SIP, and an FGD was therefore 

proposed as BART. 

Comment: MPCA’s statistical analysis 

establishing SO2 limits for the Hibbing 

facility is correct because the data is 

normally distributed. Barr Engineering 

provided an analysis showing that the 

data is normally distributed. The 

approach Minnesota used to establish 

emission limits for each facility was 

well within the discretion afforded to 

states to identify BART emission limits. 

Response: Non-parametric SO2

emissions data appear to be typical 

across the industry. EPA agrees, 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 59833 

6 It should be noted that the Barr Engineering 

analysis combined the data from the different lines. 

Because even lines of the same size can function 

differently, it would be more appropriate to 

consider the lines separately. 

however, that the available data for the 

majority of Hibbing’s lines appear to be 

normally distributed.6 However, as 

discussed in greater detail in the 

supplemental proposal, MPCA did not 

correctly apply the upper predictive 

limit (UPL) equation for normally 

distributed data. See 78 FR 8482–8483. 

If that equation were applied properly, 

the resulting limit for Hibbing would be 

significantly lower than the limit set by 

MPCA. In addition, the limits set by 

MPCA were expressed in terms of lbs 

SO2/long ton of pellets produced. As 

discussed in the supplemental proposal, 

pellet production is not routinely 

measured at the end of an indurating 

furnace. Further, the AOs do not specify 

methods for determining pellet 

production by indurating furnace and 

do not specify any requirement to keep 

records of pellet production. 

Comment: The SO2 emission limits 

set by EPA in the FIP are identical to the 

emission limits set by Minnesota for 

Northshore and similar to the emission 

limits set for Hibbing. Therefore, even if 

EPA has legitimate technical 

corrections, the resulting changes are 

not substantive and should not result in 

wholesale rejection of the Minnesota 

regional haze SIP. These issues should 

have been resolved in discussions with 

Minnesota before EPA issued a FIP. 

Response: EPA disagrees. The SO2

emission limits set by Minnesota were 

expressed in terms of lbs SO2/long ton 

of pellets produced, while the limits set 

by EPA are expressed in terms of lbs 

SO2/hour. No demonstration has been 

made that the limits are equivalent. 

Furthermore, the emission limit set by 

EPA in the FIP for Northshore is 

temporary and must be recalculated 

after CEMS data has been collected. 

Comment: Minnesota and Michigan 

were not required to reopen the BART 

technology determinations to 

accommodate EPA’s unreasonably 

lengthy SIP review, and EPA may not 

reject the SIPs on this basis. EPA must 

approve SIPs that satisfy all applicable 

regulatory requirements pursuant to 

CAA section 110(k)(3). The public 

comment periods on Minnesota and 

Michigan’s BART determinations closed 

on May 16, 2008, and June 23, 2010, 

respectively. Only technologies that 

were commercially available under Step 

2 of the BART analysis at that time 

could be considered by the states in 

making BART technology 

determinations. EPA may not 

disapprove a state SIP because the states 

did not include information in their 

analyses that was not in existence at the 

time the technology determinations 

closed. 

While the state’s determinations were 

awaiting EPA action, Minnesota was 

engaged in an extensive process of 

collecting emissions data and 

performing analyses to set emission 

limits that reflected those technology 

determinations. The states must be able 

to rely on their BART determinations as 

they proceed to convert them to 

emission limits. 

Response: As discussed previously, 

and contrary to the commenters’ 

assertions, low NOX burners were 

‘‘available’’ at the end of both states’ 

public comment periods and have been 

for decades. As such, both states were 

required to determine whether low NOX

burners were applicable to taconite 

furnaces, a task which they failed to do 

as neither state adequately considered 

the installation at U.S. Steel’s Minntac 

facility or other available information. 

While immaterial, EPA notes that the 

commenters provide no support for 

their assertion that the States were 

entitled to rely on their prior BART 

determinations as they ‘‘proceeded to 

convert them to emission limits.’’ On 

the contrary, the Act explicitly requires 

that all BART determinations be in the 

form of enforceable emission limits. See 

CAA sections 110(a)(2)(A) and 

169A(b)(2). Neither the Act nor the 

BART Guidelines contemplate a 

scenario in which states are permitted to 

select a technology as BART, walling off 

that decision from further public 

scrutiny and comment, and then wait 

several years before setting emission 

limits to complete the BART process, 

ignoring any new information brought 

to their attention in the process. 

Comment: The information that 

became available after the close of the 

states’ public comment periods only 

further supports Minnesota and 

Michigan’s initial BART determinations. 

Serious concerns continue to exist over 

the feasibility of low NOX burner 

technology on a case-by-case basis, and 

current cost and modeling information 

suggest that application of this 

technology would be both more 

expensive and less impactful from a 

visibility standpoint than EPA 

presumes. Furthermore, the most 

current cost information on FGD 

technology confirms that FGD 

technology is not a cost-effective control 

option for United Taconite or Tilden. 

Minnesota and Michigan made proper 

BART determinations in 2008 and 2010, 

and none of the information EPA cites 

provides grounds for changing these 

determinations. 

Response: EPA published the 

February 6, 2013, supplemental 

proposed disapproval to provide 

additional information regarding EPA’s 

views on Minnesota and Michigan’s 

regional haze SIPs and to solicit 

additional comment regarding the 

proposal to disapprove the SIPs for 

failing to require BART at the applicable 

taconite plants. EPA is not soliciting 

further comment on its FIP as the 

supplemental proposal only addresses 

whether the states’ SIPs should be 

disapproved for failing to provide an 

adequate analysis and require BART for 

applicable taconite plants. The 

commenters specifically raise the 

following points: (1) Low NOX burner 

technology is not technically feasible for 

straight-grate furnaces; (2) low NOX

burner technology is not technically 

feasible for grate-kiln furnaces; (3) 

updated cost analyses demonstrate that 

low NOX burner technology is not costeffective in light of limited visibility 

improvements; and (4) updated cost 

analyses demonstrate that FGD 

technology is not cost-effective for 

Tilden or United Taconite in light of 

limited visibility improvements. These 

points are not directly relevant to the 

disapproval of Minnesota and 

Michigan’s regional haze SIPs for 

taconite plants. Indeed, given the 

conclusory nature of Minnesota and 

Michigan’s SIPs regarding the feasibility 

of low NOX burners at these facilities, 

these comments appear to be seeking to 

provide alternative justifications for the 

States’ BART determinations that the 

plans themselves do not rely upon. 

In any case, the commenters’ review 

of the feasibility of low NOX burners 

reflects an overly narrow view of 

technical feasibility. Any installation of 

control equipment at a facility that does 

not already have that equipment in 

place requires engineering to determine 

how best to design the equipment to 

work most effectively given the 

particular features of the particular 

facility. The commenters appear to be 

arguing that low NOX burners cannot be 

considered technically feasible because, 

for example, the engineering work done 

to design low NOX burners for the Essar 

facility cannot be directly applied to 

other facilities. The commenters cite 

selected design features that differ from 

facility to facility, such as the number 

of windboxes, but the commenters 

provide no reason for EPA to believe 

that any of these features pose problems 

that could not be solved by appropriate 

engineering analysis, just as has been 

done at multiple taconite lines and in 

countless other high temperature 

processes in numerous other industries. 

mstockstill on DSK4VPTVN1PROD with RULES

59834 Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 

Comments regarding costs and visibility 

benefits do not speak to whether 

Minnesota or Michigan appropriately 

analyzed these costs and benefits, and 

comments regarding time for 

installation appear to be untimely 

comments on the FIP that are not 

relevant to this rulemaking or the 

approvability of the States’ regional 

haze SIPs. These issues are more 

appropriately discussed in the FIP, 

which includes a full and appropriate 

analysis of BART. 

B. Comment by MDEQ and Cliffs 

Comment: In spite of the provision in 

the BART Guidelines that states: ‘‘[A]ll 

technologies should be considered, if 

available before the close of the State’s 

comment period. You need not consider 

technologies that became available after 

this date,’’ MDEQ felt that additional 

review was warranted and included in 

the SIP a requirement that Tilden must 

conduct further testing to provide the 

basis for NOX emission limits to be 

incorporated in the air permit for the 

Tilden facility. Tilden has since 

complied and its Permit to Install No. 

148–12 contains an enforceable 

emission limit. 

Response: Michigan has not 

submitted this permit as part of its 

regional haze SIP. To be approvable, 

emission limits representing BART must 

be contained in the SIP itself to 

guarantee Federal enforceability. 

Indeed, the Regional Haze Rule 

specifically states: ‘‘The State must 

submit an implementation plan 

containing emission limitations 

representing BART.’’ 40 CFR 51.308(e) 

(emphasis added). The requirement that 

BART emission limits be contained in 

the SIP is important because states can 

unilaterally remove or alter permit 

limits (that are not otherwise contained 

in an approved SIP or Federal standard) 

without federal approval. Moreover, 

permits expire. Consequently, the 

existence of a limit that Michigan has 

not submitted as part of its regional haze 

SIP cannot be considered to remedy 

deficiencies in the SIP. 

EPA additionally notes that the NOX

limit in Tilden’s permit is 2,270 lbs/hr 

on a 30-day rolling average. According 

to Table 3–1 in appendix 9H of 

Michigan’s regional haze SIP, the 

maximum 24-hour actual NOX

emissions for Tilden were 26,208 lbs/

day. Dividing by 24 results in an 

emission rate of 1,092 lbs/hr, which is 

less than half of the permitted limit. 

Thus, even if EPA were to agree that 

GCP was BART for this facility, 

Michigan has not demonstrated that a 

limit more than twice the facility’s 

maximum actual emissions could 

possibly represent GCP. 

C. Comments by MDEQ 

Comment: The Michigan regional 

haze SIP provided extensive 

documentation of a full and appropriate 

analysis of BART that meets the 

requirements of the CAA. 

Response: As discussed in the 

supplemental proposal, the Michigan 

regional haze SIP did not meet CAA 

requirements because of its failure to 

require emission controls that represent 

BART. The Michigan SIP defines BART 

as GCP, but there is no explanation of 

what GCP is and no NOX limits 

representing GCP. Michigan relies on a 

state permit that has not been submitted 

to EPA in the form of a SIP revision to 

argue that there is a limit on Tilden’s 

NOX emissions. For the reasons 

explained in the prior response, this 

limit is insufficient to satisfy the 

requirements of the CAA and the 

Regional Haze Rule. 

Comment: There was no information 

prior to the close of Michigan’s public 

comment period on June 23, 2010, 

indicating that low NOX burners had 

been successfully utilized on indurating 

furnaces operating under the same 

circumstances as Tilden’s grate-kiln 

furnace. 

Response: In a June 23, 2010, letter to 

Michigan regarding its regional haze 

SIP, EPA stated that ‘‘a low NOX main 

firing burner firing solid fuels’’ had been 

installed at Minntac’s grate-kiln 

furnace,’’ (both Minntac and Tilden 

have grate-kiln furnaces) and that ‘‘work 

done by other companies had 

demonstrated that burner designs that 

lower flame temperature can reduce 

NOX formation in taconite furnaces.’’ 

Even after being notified of the above, 

Michigan did not conduct an adequate 

BART review of this technology in its 

regional haze SIP. MDEQ’s only 

response to EPA’s comment was that 

‘‘[t]he projects and technologies 

described above were not selected or 

proposed for BART, but rather were 

proposed primarily as projects to be 

studied, and were agreed to be 

completed as part of PSD permitting 

(not BART) or enforcement situations. 

None of the technologies and projects 

described above have been established 

for BART at taconite plants in 

Minnesota.’’ Such circular logic, that 

low NOX burners should not be 

evaluated for BART because the States 

had not selected them as BART, is 

arbitrary and inadequate. 

Comment: The FIP schedule of 

compliance does not allocate sufficient 

time for the permitting process. 

Response: While not germane to this 

rulemaking, EPA notes that MDEQ has 

provided no information explaining 

why Tilden needs more than 26 months 

to accommodate permitting 

requirements. 

Comment: MDEQ disagrees with the 

contents of EPA’s July 2, 2012, 

conversation between EPA, U.S. Steel, 

and COEN, which is described in the 

August 15, 2012, proposed action. It 

states: ‘‘There is also no increase in 

combustion related emissions, such as 

carbon monoxide or volatile organic 

compounds, and there is no reason for 

SO2 emissions to increase through use 

of a low NOX burner.’’ This 

conversation failed to recognize that the 

December 22, 2008 permitting action for 

the installation and operation of the 

auxiliary burners and conversion to low 

NOX burners included a net emission 

increase of 1,607 tons/year of carbon 

monoxide. 

Response: The 2008 permitting action 

included an emission estimate only. 

Newer information from November 2009 

letters from COEN and Hatch document 

why no increase in CO is expected due 

to the installation of low NOX burners. 

These assertions are further supported 

by U.S. Steel’s draft permit for Lines 4 

and 5 at Minntac, which was put out for 

pre-public notice review on May 14, 

2013. This permit shows only a minimal 

increase in CO emissions according to 

PSD calculation methodology. 

D. Comments by the National Mining 

Association 

Comment: EPA’s proposed 

disapproval of Minnesota and 

Michigan’s regional haze SIPs is 

contrary to the federalism principles 

embedded in the CAA. Congress 

purposely created a cooperative 

federalism scheme in the CAA to define 

the roles of EPA and the states under the 

regional haze program. As the DC 

Circuit Court of Appeals recently noted 

in EME Homer City Generation, L.P. v. 

EPA, 696 F.3d 7, 12 (D.D.C. 2012), 

‘‘Under the Clean Air Act, the Federal 

Government sets air quality standards, 

but States retain the primary 

responsibility (if the States want it) for 

choosing how to attain those standards 

within their borders. The Act thus 

leaves it to the individual States to 

determine, in the first instance, the 

particular restrictions that will be 

imposed on particular emitters within 

their borders. (If a State refuses to 

participate, the Federal Government 

regulates the sources directly.)’’ 

Procedurally, this requires states to 

submit SIPs that address regional haze 

and establish BART determinations for 

sources within their borders. The states 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 59835 

then submit these plans to EPA, who 

must approve them if they satisfy all 

regulatory requirements. See CAA 

section 110(k). 

In this instance, both Michigan and 

Minnesota submitted well-reasoned 

SIPs detailing their plans for addressing 

regional haze impacts. The entire 

taconite industry in the United States 

resides in these two states, and as a 

result, Minnesota and Michigan have an 

extensive and unparalleled 

understanding of the taconite mining 

and processing industry. Minnesota and 

Michigan used this industry knowledge 

and years of work and technical analysis 

to arrive at BART determinations for 

each BART-eligible taconite furnace. In 

doing so, Minnesota and Michigan 

carefully considered all available 

information provided through the end of 

their public comment periods and used 

this information to analyze available 

control technologies and the feasibility 

of installing these control technologies 

on each taconite furnace. The states 

then evaluated this information in light 

of the five statutory factors set forth by 

the CAA. 

Minnesota and Michigan performed 

these evaluations on a case-by-case 

basis, in compliance with the CAA and 

in accordance with EPA guidance, and 

sought public comment on their 

determinations. The states carefully 

considered these comments before 

finalizing their SIPs and submitting 

them to EPA for approval on December 

31, 2009 (Minnesota) and November 5, 

2010 (Michigan). 

EPA is now proposing to disapprove 

those determinations, not because the 

states erred in their reasoning, but 

because new information was presented 

in 2012. This information, a report on 

low-NOX burner technology used at the 

Minntac furnace, was not available 

when the states arrived at their BART 

determinations and it had not been 

peer-reviewed or subject to evaluation 

by the affected stakeholders. EPA’s own 

guidance establishes a cut-off date for 

state technology determinations at the 

close of the state public comment 

period. The States, therefore, were not 

required to re-open their BART 

determinations based on this new 

information, and EPA does not have the 

authority to disapprove a valid and 

supported SIP based on information that 

was not available to the states at the 

time of their BART determinations. 

EPA claims that it was compelled to 

consider this new information 

submitted during its 2012 public 

comment period when deciding 

whether to approve the SIPs, even if the 

States were not. EPA certainly could 

have considered the new information in 

many appropriate ways, but it chose not 

to. EPA could have shared the report 

with the States and then deferred to the 

States’ evaluation of the data. Instead, 

EPA chose to ignore the States’ 

assessment that the report was an 

insufficient demonstration that the 

technology was appropriate for the 

diverse furnace designs in the rest of the 

industry. EPA could have solicited a 

peer review of the report. Instead, EPA 

actively ignored the input of the furnace 

design engineers at Metso Engineering, 

who told the agency repeatedly that the 

burner designs would require 20–50- 

percent more fuel per ton of pellets and 

could cause pellet quality problems 

when installed on other taconite 

furnaces. EPA arbitrarily included in the 

record for its proposed FIP only the 

information that supported low NOX

burners as BART instead of considering 

all the information made available to the 

agency and conducting the critical 

technology review that the CAA 

requires. 

EPA’s limited authority under the 

CAA does not authorize it to disapprove 

a SIP and impose a FIP merely because 

EPA prefers a different BART outcome. 

EPA’s role is not to gather evidence to 

support a predetermined BART decision 

and actively ignore contrary 

information. When the available 

information does not provide a clear 

contrary path, EPA must defer to the 

states’ method for weighing the 

available information and to the lawful 

and appropriate BART decision that 

arises from that method. 

Response: EPA disagrees with NMA’s 

assertion that ‘‘EPA is now proposing to 

disapprove these determinations, not 

because the states erred in their 

reasoning, but because new information 

was presented in 2012.’’ In a June 23, 

2010, letter to Michigan regarding the 

state’s draft regional haze SIP, EPA 

commented that ‘‘a low NOX main 

burner firing solid fuels’’ had been 

installed at Minntac and that ‘‘work 

done by other companies had 

demonstrated that burner designs that 

lower flame temperature can reduce 

NOX formation in taconite furnaces.’’ 

Similarly, in a February 10, 2012, letter 

to Minnesota responding to the state’s 

draft regional haze SIP supplement for 

taconite facilities, EPA explained in 

detail that ‘‘U.S. Steel has demonstrated 

the development and use of low NOX

main burners that achieve 70 percent 

NOX reduction on its indurating lines.’’ 

Therefore, both states were aware that 

low NOX burners had been successfully 

applied to indurating furnaces. 

Although NMA states that EPA could 

have shared the report with the States 

and then deferred to the States’ 

evaluation of the data, Minnesota had 

this information before EPA and made 

no apparent use of it. This information 

is listed in EPA’s February 10, 2012, 

letter to Minnesota, which refers to 

three reports, from April 13, 2010, to 

December 1, 2011, informing the MPCA 

of U.S. Steel’s success in installing low 

NOX burners on two of its indurating 

furnaces. (EPA also provided a copy of 

this letter to Michigan.) Even if 

Minnesota did not want to require 

general use of a proven technology on 

other facilities, there is no conceivable 

reason why Minnesota dismissed low 

NOX burners as BART at the U.S. Steel 

Minntac lines that were already using 

them. Although Metso Engineering 

‘‘told the agency repeatedly that the 

burner designs would require 20–50% 

more fuel per ton of pellets and could 

cause pellet quality problems,’’ U.S. 

Steel documented that it had neither a 

fuel penalty nor pellet quality problems. 

EPA’s action cannot be characterized 

as disapproving submittals that satisfy 

CAA requirements ‘‘merely because 

EPA prefers a different BART outcome.’’ 

In commenting that EPA must approve 

state submittals that meet minimum 

CAA requirements, NMA apparently 

recognizes that EPA must disapprove 

state submittals that fail to meet CAA 

requirements. By dismissing clearly 

applicable NOX and SO2 emission 

control options as infeasible, and by 

finding a group of NOX emission 

reduction practices (GCP) to be BART 

without defining or conducting the 

necessary five factor analysis of any 

particular good combustion practice, 

along with other SIP deficiencies, 

Michigan and Minnesota’s submittals 

fail to satisfy CAA requirements 

regarding BART. 

Finally, in regards to NMA’s comment 

regarding a cut-off date for considering 

new information regarding available 

technologies, EPA provided a thorough 

response to a similar comment from 

Cliffs above. 

Comment: EPA may not use a ‘‘sueand-settle’’ approach to circumvent 

CAA requirements and usurp the role of 

the states. EPA’s decision to seek 

comment on proposed deficiencies in 

the States’ regional haze SIPs only after 

finalizing a FIP is contrary to the 

cooperative federalism scheme of the 

CAA. EPA’s well established role is to 

review SIPs, determine whether they 

meet CAA criteria, and only if the state 

process fails to produce a compliant SIP 

can EPA issue its own FIP. By 

definition, a FIP may be used only to 

‘‘fill all or a portion of a gap or 

otherwise correct all or a portion of an 

inadequacy in a State implementation 

plan.’’ In this instance, EPA has put the 

mstockstill on DSK4VPTVN1PROD with RULES

59836 Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 

cart before the horse by finalizing a FIP 

and then seeking public comment on 

the supposed deficiencies that formed 

the basis for the FIP in the first place. 

EPA took this strange course of action 

to meet a deadline that the agency 

agreed to in a consent decree to settle 

litigation brought by the National Parks 

Conservation Association. EPA may not, 

however, use a self-imposed consent 

decree deadline to justify doing things 

out of order and in violation of the clear 

rulemaking process set forth in the 

CAA. 

Prior to issuing its FIP, the only 

deficiency EPA had identified was a 

failure by Minnesota and Michigan 

(along with over 30 other states) to 

submit a timely regional haze SIP. 

Minnesota and Michigan rectified this 

deficiency by submitting their SIPs. 

These submittals triggered EPA’s 

obligations under CAA section 110(k) to 

review the SIPs within one year and 

work with the states to make any 

changes necessary for federal approval. 

Instead of meeting its statutory 

obligation to act on the state 

submissions within one year, EPA 

entered into a consent decree with 

environmental organizations that set a 

court-ordered deadline for action on 

regional haze. In January 2012, EPA was 

on course to meet that deadline in 

Minnesota by proposing approval of the 

Minnesota regional haze SIP. However, 

when EPA decided to change course 

and propose a FIP, EPA had left itself 

with no time to properly identify 

deficiencies in the SIPs. EPA used the 

consent decree deadline as an excuse to 

stop working with the states to finalize 

the SIPs, to arbitrarily ignore contrary 

information, and to deny requests for 

additional time for public comments. 

EPA’s rushed FIP that revealed a poor 

understanding of the taconite industry 

and significant shortcuts in the BART 

determination process. EPA did not 

propose disapproval of the state SIPs 

before rushing into a FIP, let alone 

provide ample opportunity for public 

comment or for the states to rectify any 

perceived deficiencies. 

Had EPA followed proper procedure 

and discussed this new information 

with the states, EPA would have 

understood that the new low NOX

burner trial information would not have 

changed the state BART determinations 

for taconite furnaces. The taconite 

industry is highly specialized, with each 

indurating furnace designed to process 

a specific ore type and produce pellets 

meeting varying specifications. An indepth understanding of each taconite 

furnace is necessary to properly 

evaluate the applicability of ‘‘new’’ 

technology to these sources. Instead of 

taking the time necessary to understand 

these issues, EPA cited its looming 

consent decree and rushed through a 

‘‘one-size-fits-all’’ FIP that requires all 

taconite furnaces to expend significant 

resources designing and installing 

technologies that are unproven and 

could severely impact their ability to 

manufacture a high quality product for 

global markets. This result would 

produce severe economic consequences 

for the taconite industry in Minnesota 

and Michigan. EPA may not use a selfimposed consent decree to cut the states 

out of a process Congress intended them 

to control and inflict this type of burden 

on the taconite industry. 

Response: This comment is generally 

not relevant to the proposed disapproval 

and is primarily focused on EPA’s 

decision to promulgate a FIP, as well as 

the substance of the FIP. For example, 

the comments objecting to EPA 

promulgating a FIP before acting on the 

states’ SIPs and the comments regarding 

EPA’s alleged ‘‘sue-and-settle’’ approach 

appear to be objecting to the timing of 

EPA’s FIP promulgation rather than 

addressing appropriate action on the 

states’ SIPs. NMA believes that EPA did 

not properly consider the ‘‘highly 

specialized’’ nature of taconite facilities, 

but NMA does not identify any 

particular features of any particular 

facilities that would make more or less 

control feasible. More pertinently, the 

comment suggests that the one-size-fitsall nature of the state SIPs (in all cases 

determining undefined ‘‘good 

combustion practices’’ to be BART) are 

an important deficiency. 

E. Letter From Congressman Richard M. 

Nolan 

Congressman Nolan submitted a 

March 4, 2013, letter to EPA asking EPA 

to approve the Minnesota SIP or amend 

the FIP to allow the taconite facilities 

sufficient time to comply with NOX

BART emission limits. The comments 

submitted by the Congressman focus 

primarily on compliance deadlines and 

as such are FIP rather than SIP issues. 

Today’s action disapproves the 

Minnesota SIP, however, EPA notes that 

the compliance deadlines in EPA’s FIP 

have already been stayed by the Eighth 

Circuit and EPA is currently reviewing 

several petitions for reconsideration that 

request additional extensions of the 

compliance deadlines for NOX BART. 

F. Comments by the Minnesota 

Pollution Control Agency 

Comment: The proposed SIP 

disapproval presents unnecessary 

challenges to the historically strong 

state/Federal relationship in Minnesota. 

EPA’s actions rendered moot a 

significant investment of time and 

resources by the MPCA. 

Response: EPA also values its strong 

relationship with MPCA, but this 

concern cannot justify approving a SIP 

that does not meet CAA requirements. 

EPA appreciates MPCA’s efforts and the 

time it invested on the Minnesota 

regional haze SIP, which EPA approved 

in full except with regard to the BART 

determinations for taconite facilities. 

EPA encourages MPCA to consider 

submitting a SIP revision for taconite 

BART that EPA could evaluate for 

approval and potential replacement of 

EPA’s FIP. 

Comment: EPA’s BART Guidelines do 

not require states to re-open final BART 

decisions to consider a technology that 

becomes available after the close of the 

public comment period on the state’s 

SIP. MPCA was clear that its May 2012 

regional haze SIP supplement was not 

re-opening its 2009 BART 

determinations for taconite facilities. 

MPCA had valid reasons to exercise this 

discretion because MPCA knew that the 

pilot project for low NOX burners at 

Minntac was limited to a single type of 

taconite furnace and that the pilot 

project clearly illustrated that low NOX

burners required significant testing and 

operational changes at the two furnaces 

tested. 

Response: As discussed above in 

response to a similar comment by Cliffs, 

MPCA is misreading EPA’s BART 

Guidelines. Low NOX burners are in 

wide use across a wide range of 

industries, many involving combustion 

conditions comparable to those in the 

taconite industry, and this technology 

has been commercially available since 

long before MPCA even began 

considering BART for taconite plants. 

Therefore, statements in the BART 

Guidelines regarding the consideration 

of technologies that become available 

after the close of a state’s comment 

period are not germane here. 

MPCA’s comment suggests that MPCA 

interprets ‘‘available’’ to mean not just 

commercially available, but also 

‘‘applicable’’ at a particular facility. This 

interpretation is inconsistent with the 

BART Guidelines, which clearly 

differentiate between the concepts of 

‘‘availability’’ and ‘‘applicability.’’ For a 

technology like low NOX burners that 

has long been commercially available, 

the BART Guidelines do not provide 

states with the authority to disregard 

information that indicates that an 

‘‘available’’ technology has also become 

‘‘applicable,’’ and therefore technically 

feasible, for use at a particular source 

type. 

Furthermore, MPCA offered multiple 

comment periods throughout its 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 59837 

regional haze SIP development process. 

MPCA wishes to treat its last comment 

period as merely addressing the 

emission limits for a BART technology 

it had selected previously, without 

offering the opportunity to reconsider 

whether the selection of that technology 

was appropriate. Thus, even assuming 

MPCA’s interpretation of ‘‘available’’ 

were correct, MPCA provides no 

rationale for interpreting the BART 

Guidelines in such a way so as to 

foreclose the consideration of 

technologies that become available after 

the close of one comment period, but 

before the close of another, later 

comment period. Therefore, the BART 

Guidelines provide no justification for 

MPCA to disregard the information that 

has come to light over the last several 

years that low NOX burners are 

‘‘applicable’’ and technically feasible for 

the taconite facilities in the state. 

Installation of a new control 

technology at a facility commonly 

requires ‘‘significant testing and 

operational changes.’’ Indeed, EPA’s FIP 

provided time for exactly this effort. 

Taken to its logical extreme, MPCA’s 

comment suggests that states could not 

require new controls at facilities unless 

the controls have already been installed 

there. On the contrary, the need for 

testing and operational changes alone 

cannot justify a finding that controls are 

technically infeasible. 

Comment: EPA should stay 

implementation of its FIP to resolve 

procedural issues with the SIP actions. 

EPA’s supplemental proposed 

disapproval provides no legal authority, 

either from the CAA or from case law, 

which allows EPA to adopt a final FIP 

before EPA formally disapproves a 

state’s SIP. EPA’s claim that it has a 

mandate to promulgate such a FIP 

without regard to whether EPA has 

disapproved the State’s SIP is 

unsupported and contrary to case law. 

Response: EPA disagrees. EPA’s final 

rule promulgating the FIP clearly 

explained the Agency’s legal authority 

for taking action. Section 110(c) of the 

CAA requires EPA to promulgate a FIP 

after finding that a state has failed to 

make a required submission unless two 

events occur before EPA promulgates a 

FIP: (1) The state corrects the 

deficiency, and (2) EPA approves the 

state’s SIP. We note, however, that this 

comment is moot because the Eighth 

Circuit has since stayed the effective 

date of EPA’s FIP. 

Comment: EPA’s June 12, 2012, final 

action simply stated that EPA was 

deferring action with regard to BART for 

taconite facilities because Minnesota 

did not select EPA’s chosen control 

technology. By publishing the 

supplemental proposed disapproval on 

the same day as the final FIP, EPA is not 

providing Minnesota with a meaningful 

opportunity to comment on EPA’s 

proposed action because EPA has 

already decided on its course of action. 

Under the CAA, EPA’s supplemental 

proposed disapproval should afford 

Minnesota the opportunity to remedy 

the specific issues EPA cites as not 

adequately meeting the requirements of 

the CAA. 

Response: First, MPCA 

mischaracterizes EPA’s June 12, 2012 

final action, in which EPA actually 

stated that it was deferring action to 

evaluate information indicating that 

BART should be defined as a more 

effective control technology. 77 FR 

34801 at 34806. Second, as EPA 

explained in an earlier response to a 

similar comment from Cliffs, a FIP is a 

gap-filling measure only. See CAA 

section 302(y). As a result, a FIP 

promulgated by EPA remains in place 

only until a state submits a SIP 

correcting the inadequacy and that SIP 

is approved by EPA. In this instance, 

MPCA and other commenters had a 

meaningful opportunity to comment on 

EPA’s supplemental proposed 

disapproval and explain why EPA’s 

proposed action was incorrect. Had EPA 

agreed with MPCA or other commenters 

and approved the Minnesota and 

Michigan BART determinations for 

taconite facilities instead, EPA’s FIP 

would have been replaced. Therefore, 

MPCA’s assertions are incorrect. 

Furthermore, we again encourage MPCA 

to consider submitting a SIP revision for 

taconite BART that EPA could evaluate 

for approval and potential replacement 

of EPA’s FIP. 

Comment: EPA’s August 15, 2012, 

proposed action did not propose to 

disapprove Minnesota’s regional haze 

SIP for taconite facilities. The only 

mention of the disapproval of 

Minnesota’s SIP is in the preamble 

where EPA makes an unsubstantiated 

claim that the disapproval is for a 

failure to make a required submission. 

MPCA objects to the absence of 

substantive analysis or detail about 

what required submission Minnesota 

did not make. According to Train v. 

Natural Resources Defense Council, 421 

U.S. 60 (1975), EPA can only disapprove 

a SIP if it does not adequately meet the 

requirements of CAA section 110(a)(2). 

Also, no mention of the disapproval 

of the SIP is made in the ‘‘Proposed 

Agency Action’’ section of the Federal 

Register notice, meaning that EPA failed 

to take official agency action on 

Minnesota’s regional haze SIP. Finally, 

EPA’s assertion that the August 15, 

2012, proposed rule served as an 

‘‘implicit disapproval’’ of Minnesota’s 

regional haze SIP represents an 

acknowledgement that EPA failed to 

take formal agency action. The CAA has 

no provision for ‘‘implicit 

disapprovals.’’ 

Response: EPA’s August 15, 2012, 

proposed action noted that the BART 

requirement ‘‘has not been satisfied by 

Minnesota or Michigan for its subject 

taconite plants,’’ and the proposed 

codification for Minnesota stated that 

‘‘[t]he requirements of section 169A of 

the Clean Air Act are not met because 

the regional haze plan submitted by the 

state on December 30, 2009, and on May 

8, 2012, does not meet the requirements 

of 40 CFR 51.308(e) with respect to NOX

and SO2 emissions from [the listed 

taconite facilities].’’ This proposed 

codification represents ‘‘official agency 

[proposed] action.’’ 

On the other hand, EPA agreed with 

comments expressing concern that the 

August 12, 2012 notice did not provide 

adequate explanation of EPA’s rationale 

for proposing to disapprove in part the 

two States’ regional haze SIPs. In 

response to those comments, EPA 

published a supplemental notice on 

February 6, 2013, at 78 FR 8478, 

elaborating on EPA’s rationale for 

proposing to disapprove in part these 

SIPs. 

EPA did not claim, in its August 12, 

2012 proposed action or elsewhere, that 

the disapproval was for failure to submit 

a timely regional haze SIP. EPA stated 

that its FIP obligation was based on a 

finding that the states had failed to 

make the submittal (an obligation that 

remains in the absence of EPA approval 

of a subsequently submitted SIP). 

Similarly, EPA did not make the 

assertion regarding ‘‘implicit 

disapproval’’ claimed by Minnesota. 

Instead, EPA stated that its August 12, 

2012 proposed action ‘‘provided a full 

discussion of why EPA proposed to 

conclude that the BART criteria resulted 

in more stringent control than was 

required by the States, thus implicitly 

concluding that the state submittals did 

not require controls representing 

BART.’’ Furthermore, the action 

proposed regulatory text stating that the 

state submittals failed to require BART 

for the taconite plants. 

In regard to MPCA’s comment 

regarding the DC Circuit’s decision in 

Train v. NRDC, that case did not deal 

with a regional haze SIP, which, in 

addition to satisfying the requirements 

of CAA section 110(a)(2), must also 

satisfy the requirements of CAA section 

169A and the Regional Haze Rule. 

Comment: MPCA comments that 

EPA’s claims of authority to promulgate 

a FIP based on a finding of failure to 

mstockstill on DSK4VPTVN1PROD with RULES

59838 Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 

submit a SIP fail to recognize that 

Minnesota ‘‘submitted a SIP within the 

timeline [prescribed] by the 2009 Notice 

of Deficiency.’’ MPCA objects that the 

administrative record omits an April 1, 

2010, letter finding Minnesota’s SIP to 

be complete. 

Response: This comment regarding 

FIP authority has been addressed in 

EPA’s FIP and is not relevant here. EPA 

has made the addition to the record that 

MPCA requested. 

Comment: MPCA comments that 

EPA’s supplemental proposed 

disapproval does not remedy EPA’s 

official statements from the June 12, 

2012, final action in which EPA stated 

that it would act through a FIP because 

Minnesota did not select EPA’s chosen 

control technology for BART. MPCA 

finds these findings to be contrary to 

case law, citing Virginia v. EPA, 108 

F.3d 1397, 1406 (D.C. Cir. 1997), 

without explanation. 

Response: It is not clear why MPCA 

commented on statements in the June 

12, 2012, final action regarding 

prospective EPA actions, because the 

actual actions as proposed on August 

15, 2012, and February 6, 2013, were 

available for comment and were more 

indicative of EPA’s actions than its prior 

anticipatory statements. In any case, 

MPCA is misrepresenting EPA’s June 

12, 2012, statements. Nowhere in this 

notice did EPA ‘‘simply state that 

Minnesota did not select EPA’s chosen 

control technology.’’ Instead, EPA noted 

the ‘‘significant information about 

additional NOX controls [that it 

received] in comments on [the January 

25, 2012] proposed rulemaking, 

[prompting EPA to defer action to allow] 

EPA time to evaluate properly 

additional potential emission controls 

for the taconite facilities.’’ 

As explained in the supplemental 

proposed disapproval, EPA’s 

subsequent evaluation led to its view 

that: (1) Minnesota and Michigan did 

not properly evaluate BART for NOX

and SO2 for taconite plants because they 

dismissed technically and economically 

feasible control technologies without 

adequate justification; (2) Minnesota 

and Michigan adopted a ‘‘control 

technology’’ (GCP) for NOX that was not 

defined or properly analyzed; (3) 

Minnesota did not demonstrate that its 

emission limits in fact represented GCP, 

while Michigan did not include NOX

emission limits in its SIP at all; and (4) 

Minnesota failed to make its emission 

limits appropriately enforceable. MPCA 

notably does not contest EPA’s view 

that low NOX burners and FGD are more 

effective at reducing emissions than 

GCP. More precisely, MPCA does not 

argue that GCP is either equivalent to or 

better than these technologies. That is, 

Minnesota makes no argument that its 

chosen technology can equally well be 

considered the best available. Thus, the 

failure of the states to follow EPA’s 

implementing regulations or the BART 

Guidelines when selecting BART for 

these facilities had the practical 

consequence of the SIPs requiring less 

than BART. Finally, Virginia v. EPA, to 

the extent it is relevant here, does not 

instruct EPA to approve SIPs that fail to 

meet CAA requirements. 

Comment: EPA correctly states that 

Minnesota essentially re-opened its 

2009 BART determinations for the 

affected electric generating units 

(EGUs). MPCA finds that an extensive 

administrative record compiled by EPA 

in support of revised action supported 

re-opening the EGU BART 

determinations. MPCA finds in contrast 

that it lacked an adequate 

administrative record to justify a reopening of the taconite BART 

determinations. 

Response: At issue here is whether 

MPCA should have more thoroughly 

considered evidence indicating the 

applicability and effectiveness of low 

NOX burners. This comment suggests 

that MPCA undertook a partial 

consideration of this evidence in order 

to evaluate whether a more thorough 

review and ‘‘re-opening’’ of its BART 

determinations was necessary. However, 

as has been elaborated several times in 

the responses above, EPA disagrees that 

MPCA’s partial consideration of 

information regarding the technical 

feasibility of low NOX burners was 

reasonable or sufficient to satisfy the 

States’ obligations under the CAA and 

Regional Haze Rule to evaluate all 

technically feasible control options 

when selecting BART. 

Comment: MPCA closes its comments 

by recommending several modifications 

to the FIP. 

Response: These comments are 

pertinent to a completed rulemaking 

promulgating the FIP and are not 

germane to this rulemaking regarding 

disapproval of Minnesota’s regional 

haze SIP. 

III. What action is EPA taking? 

EPA is disapproving in part the 

Michigan and Minnesota regional haze 

SIPs for failure to satisfy BART 

requirements for NOX and SO2

emissions from the subject taconite 

facilities within these states. 

Specifically, EPA is disapproving in 

part the Michigan and Minnesota 

regional haze SIPs for failure to comply 

with 40 CFR 51.308(e)(1)(ii)(A), which 

requires BART determinations ‘‘to be 

based on an analysis of the best system 

of continuous emission control 

technology’’ that, among other things, 

‘‘take[s] into consideration the 

technology available.’’ EPA is also 

disapproving in part the Michigan 

regional haze SIP for failure to comply 

with 40 CFR 51.301 and 51.308(e), 

which require BART determinations to 

be in the form of enforceable ‘‘emission 

limitations’’ contained in SIPs. 

For NOX emissions, Minnesota’s SIP 

failed to ‘‘take into consideration the 

technology available’’ because it 

summarily dismissed a technically 

feasible control technology, low NOX

burners, without adequate explanation. 

Furthermore, by selecting an 

unidentified set of practices as BART 

instead of low NOX burners, 

Minnesota’s SIP failed to require the 

emission reductions associated with 

‘‘the best system of continuous emission 

control technology available.’’ For SO2

emissions, Minnesota’s SIP also failed to 

make BART determinations for certain 

facilities ‘‘based on an analysis of the 

best system of continuous emission 

control technology’’ because Minnesota 

did not reasonably consider the ‘‘costs 

of compliance’’ when it improperly 

rejected the most stringent control 

option, FGD. 

Similarly, Michigan’s SIP also failed 

to ‘‘take into consideration the 

technology available’’ because it too 

summarily dismissed low NOX burners 

as a technically infeasible control 

option. Also, by selecting an 

unidentified set of practices as BART 

instead of low NOX burners, Michigan’s 

SIP failed to require the emission 

reductions associated with ‘‘the best 

system of continuous emission control 

technology available.’’ Moreover, unlike 

Minnesota’s SIP, Michigan’s SIP did not 

include ‘‘emission limitations 

representing BART’’ for its Tilden 

facility. While Michigan commented 

that it has since issued a permit 

establishing NOX emission limits for the 

Tilden facility, neither these limits nor 

any other emission limits were included 

in the SIP as required. Finally, for SO2

emissions, Michigan’s SIP also failed to 

make BART determinations for certain 

facilities ‘‘based on an analysis of the 

best system of continuous emission 

control technology’’ because Michigan 

did not reasonably consider the ‘‘costs 

of compliance’’ when it improperly 

rejected the most stringent control 

option, FGD. 

A discussion of how this action 

relates to the taconite FIP that was 

published on February 6, 2013 is 

discussed in the February 6, 2013 

supplemental proposed disapproval. 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations 59839 

IV. Statutory and Executive Order 

Reviews 

Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ 

and, therefore, is not subject to review 

by the Office of Management and 

Budget. 

Paperwork Reduction Act 

This rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

Regulatory Flexibility Act 

This action merely disapproves state 

law as not meeting Federal requirements 

and imposes no additional requirements 

beyond those imposed by state law. 

Accordingly, the Administrator certifies 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities under the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). 

Unfunded Mandates Reform Act 

Because this rule disapproves preexisting requirements under state law 

and does not impose any additional 

enforceable duty beyond that required 

by state law, it does not contain any 

unfunded mandate or significantly or 

uniquely affect small governments, as 

described in the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4). 

Executive Order 13132: Federalism 

This action also does not have 

Federalism implications because it does 

not have substantial direct effects on the 

states, on the relationship between the 

national government and the states, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

disapproves a state rule, and does not 

alter the relationship or the distribution 

of power and responsibilities 

established in the CAA. 

Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(59 FR 22951, November 9, 2000). 

Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This rule also is not subject to 

Executive Order 13045 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it disapproves 

a state rule. 

Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Because it is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866 or a ‘‘significant energy 

action,’’ this action is also not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). 

National Technology Transfer 

Advancement Act 

In reviewing state submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the CAA. In this context, in the absence 

of a prior existing requirement for the 

state to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a state submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a state 

submission, to use VCS in place of a 

state submission that otherwise satisfies 

the provisions of the CAA. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. 

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 November 29, 2013. 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 CAA 

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: September 11, 2013. 

Susan Hedman, 

Regional Administrator, Region 5. 

40 CFR part 52 is 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 52.1183 is amended by 

adding paragraph (o) to read as follows: 

§ 52.1183 Visibility protection. 

* * * * * 

(o) The requirements of section 169A 

of the Clean Air Act are not met because 

the regional haze plan submitted by the 

state on November 5, 2010, does not 

meet the requirements of 40 CFR 

51.308(e) with respect to NOX and SO2

emissions from Tilden Mining Company 

L.C. of Ishpeming, Michigan. The 

requirements for this facility are 

satisfied by complying with 

§ 52.1183(k–n) 

■ 3. Section 52.1236 is amended by 

adding paragraph (d) to read as follows: 

§ 52.1236 Visibility protection. 

* * * * * 

(d) The requirements of section 169A 

of the Clean Air Act are not met because 

the regional haze plan submitted by the 

state on December 30, 2009, and on May 

8, 2012, does not meet the requirements 

of 40 CFR 51.308(e) with respect to NOX

and SO2 emissions from United States 

Steel Corporation, Keetac of Keewatin, 

Minnesota; Hibbing taconite company of 

Hibbing, Minnesota; United States Steel 

Corporation, Minntac of Mountain Iron, 

Minnesota; United Taconite, LLC of 

Forbes, Minnesota; ArcelorMittal 

Minorca Mine, Inc. near Virginia, 

Minnesota; and Northshore Mining 

Company-Silver Bay of Silver Bay, 

Minnesota. The requirements for these 

facilities are satisfied by complying with 

the requirements of § 52.1235. 

[FR Doc. 2013–23394 Filed 9–27–13; 8:45 am] 

BILLING CODE 6560–50–P 

mstockstill on DSK4VPTVN1PROD with RULES