Minnesota Pollution Control Agency 

520 Lafayette Road North I St. Paul, Minnesota 55155-4194 1 651 -296-6300 

800-657-3864 I 65 1-282-5332 TTY I www.pca.sta te.rn n.us I Equal Opportunity Employer 

June 12, 2014 

Dr. Susan Hedman 

Regional Administrator 

USEPA REGION 5 

77 West Jackson Boulevard 

Mail Code: R-19J 

Chicago, IL 60604-3507 

Re: Minnesota's 110(a) State Implementation Plan Requirements for the National Ambient Air 

Quality Standards (NAAQS) for nitrogen dioxide (N02) and sulfur dioxide (S02) promulgated in 

2010, ozone promulgated in 2008, and particulate matter less than 2.5 micrometers in 

diameter (PM2.s) promulgated in 2012 

Dear Dr. Hedman: 

The Minnesota Pollution Control Agency (MPCA) hereby submits to the U.S. Environmental 

Protection Agency (EPA) a request for revision of Minnesota's State Implementation Plan (SIP). 

The enclosed SIP revisions address the NAAQS for nitrogen dioxide (N02) and sulfur dioxide (S02) 

promulgated in 2010, ozone promulgated in 2008, and particulate matter less than 2.5 micrometers 

in diameter (PM2.5) promulgated in 2012. These SIP revisions include the "infrastructure" SIP 

requirements under sections 110(a)(1) and 110(a)(2) of the Clean Air Act (CAA), as well as additional 

revisions intended to address the requirements for state boards under section 128 of the CAA and 

provisions related to the reasonable costs of reviewing, acting on, implementing, and enforcing 

permits. 

MPCA would like to clarify that we are only submitting our rules and statutes relating to state board 

requirements and permitting fees for approval as they relate to the CAA and not in connection with 

any other federal law. We intend for EPA to approve these revisions as satisfying the general 

requirements of the CAA, including all applicable non-NAAQS specific requirements related to the 

infrastructure SIP requirements under section 110(a)(2) for any NAAQS that EPA has yet to take 

final action, e.g., the 2006 PM2.

5 and 2008 lead (Pb) NAAQS (for the state board requirements) and 

the 2008 ozone, 2010 N02, 2010 S02, and 2012 PM2.5 NAAQS. 
Dr. Susan Hedman 

Page 2 

June 12, 2014 

Specifically, the revisions include the following as they relate to permitting fees: 

- Minn. R. 7002.0005 Scope 

- Minn. R. 7002.0015 Definitions 

- Minn. R. 7002.0016 Air Quality Permit Application Fees 

- Minn. R. 7002.0017 Air Quality Permit Application and Additional Fee Target 

- Minn. R. 7002.0018 Computation of Dollar per Point for Air Permits 

- Minn. R. 7002.0019 Air Quality Permit Application Fees and Additional Fees 

Minn. R. 7002.0021 Capped Costs for Small Businesses and Cities 

- Minn. R. 7002.0022 Payment of Application and Additional Fees 

- Minn. R. 7002.0023 Notification of Error of Additional Fee 

- Minn. R. 7002.0025 Annual Emission Fee Rates 

- Minn. R. 7002.0035 Air Quality Annual Fee Target 

- Minn. R. 7002.0045 Computation of the Dollar per Ton Figure 

- Minn. R. 7002.0065 Payment of Annual Fees 

- Minn. R. 7002.0075 Notification of Error of Annual Fee 

- Minn. R. 7002.0085 Late Payment Fee 

Additionally, the revisions include the following as they relate to the state board requirements of 

section 128: 

Minn. Stat. § 10A.07 

Minn. Stat. § 10A.09 

Minn. Stat. § 15.0575, subd. 3 

Minn. Stat. § 15.0597, subd. 4 

Minn. Stat. § 15.0597, subd. 5 

Minn. Stat. § 15.0597, subd. 6 

Minn. Stat. § 116.02, subd. 1 

Minn. Stat. § 116.02, subd. 3 

Minn. R. 7000.0300 

Minn. R. 7000.9000 

The following pages lay out each requirement of section 110{a) and section 128 and describe how 

Minnesota's rules and statutes serve to implement and fulfill these requirements. All the applicable 

rules are incorporated into Minnesota's SIP. Those that are not are being submitted with this letter 

are to be incorporated into the SIP. 
Dr. Susan Hedman 

Page 3 

Through our discussions with your office, we believe this submittal meets our requirements as 

described in "Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air 

Act Sections 110(a)(1) and 110(a)(2)," issued on September 13, 2013. Please contact Amanda Jarrett 

Smith of our staff at 651-757-2486 or amanda.smith@state.mn.us if you have any questions 

regarding Minnesota's SIP. 

Sincerely, 

rbA~a-· John Line Stine 

Commissioner 

JLS/AS:cmbg 

Enclosures 
1 

Infrastructure/110(a) Requirements for Nitrogen Dioxide, Sulfur Dioxide, Ozone, and Particulate 

Matter of Less than 2.5 Micrometers in diameter NAAQS 

This State Implementation Plan (SIP) revision addresses the infrastructure requirements of sections 

110(a)(1) and 110(a)(2) of the Clean Air Act (CAA) in regards to the National Ambient Air Quality 

Standard (NAAQS) for nitrogen dioxide (NO2) and sulfur dioxide (SO2 ), promulgated in 2010; ozone, 

promulgated in 2008; and particulate matter less than 2.5 micrometers in diameter (PM2.5), 

promulgated in 2012. 

Section 110(a)(1): A Plan Which Provides for Implementation, Maintenance, and Enforcement 

The Minnesota Pollution Control Agency (MPCA) has, in prior submittals, documented its authority and 

ability to provide for the implementation, maintenance, and enforcement of primary and secondary air 

quality standards, as well as to adopt enforceable emission limitations and control measures to meet 

the primary and secondary standards and to update both state rules and the SIP as necessary. 

Minnesota Statutes authorize the MPCA to adopt air quality standards: 

The agency shall improve air quality by promoting, in the most practicable way possible, 

the use of energy sources and waste disposal methods which produce or emit the least 

air contaminants consistent with the agency’s overall goal of reducing all forms of 

pollution. The agency shall also adopt standards of air quality. . , recognizing that due to 

variable factors, no single standard of purity of air is applicable to all areas of the state. 

(Minn. Stat. § 116.07, subd. 2(a)) 

The statutes also authorize the agency the authority to: “[A]dopt, amend, and rescind rules and 

standards having the force of law relating to any purpose...for the prevention, abatement, or control of 

air pollution” (Minn. Stat. § 116.07, subd. 4(a)).

Minnesota law gives the agency the authority to enter into or enforce orders, schedules of compliance, 

and stipulation agreements; to require owners or operators of emission facilities to install and operate 

monitoring equipment and to conduct tests; and to conduct investigations, issue notices, and order 

hearings as it deems necessary to discharge its duties (Minn. Stat. § 116.07, subd. 9). 

Minn. Stat. § 116.072 authorizes the agency to issue orders and assess administrative penalties to 

correct violations of the agency’s statutes, rules, and permits. The statute authorizes administrative 

penalties up to a maximum of $10,000 for all violations identified during an inspection or compliance 

review. 

Minn. Stat. § 115.071, subd. 1 provides that violations of the agency’s statutes, rules, standards, orders, 

stipulation agreements, schedules of compliance, and permits may be remedied with criminal 

prosecution, action to recover civil penalties, injunction, and action to compel performance, other 

appropriate action, or any combination of the above. Civil penalties may be recovered up to a maximum 

of $10,000 per day of violation, except for violations related to hazardous waste, the maximum for 

which is $25,000 per day of violation (Minn. Stat. § 115.071, subd. 3). 

Minnesota’s SIP-approved air quality rules are established under the above statutory authorities and 

broadly cover the criteria pollutants: “sulfur dioxide, particulate matter, nitrogen oxides, carbon 

monoxide, ozone, lead, and any other pollutants for which national ambient air quality standards have 
2 

been established” (Minn. R. 7005.0100, subp. 8a). They also prohibit emissions that cause or contribute 

to a violation of any ambient air quality standard (Minn. R. 7009.0020). 

Section 110(a)(2)(A): Emission Limits and Other Control Measures 

Minn. Stat. § 116.07, subd. 4 give the MPCA the authority to “[A]dopt, amend, and rescind rules and 

standards having the force of law relating to any purpose for the prevention, abatement, or control of 

air pollution.” Minn. Stat. § 116.07, subd. 4a gives the MPCA authority to “issue continue in effect or 

deny permits, under such conditions as it may prescribe for the prevention of pollution, for the emission 

of air contaminants, or for the installation or operation of any emission facility, air contaminant 

treatment facility, treatment facility, potential air contaminant storage facility, or storage facility, or any 

part thereof, . . ” 

Minnesota’s SIP already includes permits and administrative orders for all facilities in maintenance areas 

under the SO2 NAAQS (Minnesota has no nonattainment or maintenance areas under the NO2, ozone, or

PM2.5 NAAQS). These emission limits apply at all times, even during periods of startup, shutdown, and 

malfunction. 

Section 110(a)(2)(B): Ambient Air Quality Monitoring/Data System 

Minnesota is currently monitoring for NO2, SO2, ozone, and PM2.5 in several locations around the state. 

Minnesota has a network of ambient air quality monitors that operate to meet the requirements of Title 

40 of the Code of Federal Regulations (CFR), Part 58. Data from the monitors is submitted to U.S. 

Environmental Protection Agency’s (EPA’s) Air Quality System (AQS) in a timely manner. The MPCA 

completes an annual monitoring plan describing the existing ambient monitoring network and any 

proposed changes, and notifies EPA Region 5 of any proposed changes. The MPCA’s most recent Annual 

Air Monitoring Network Plans can be found at: http://www.pca.state.mn.us/pyrifa3. 

Minn. Stat. § 116.07 subd. 9 (b) also allows the MPCA to require emission facilities to monitor emissions 

as needed to execute the agency’s duties.

The EPA approved the “Annual Air Monitoring Network Plan for Minnesota 2014,” which covers the 

criteria pollutants considered here, on October 23, 2013. In January 2012, EPA approved Minnesota’s 

near-road air monitoring plan in accordance with EPA’s one-hour NO2 NAAQS. Monitoring went into 

effect by January 1, 2013. 

Section 110(a)(2)(C): Programs for Enforcement and for Regulation of PSD, and NSR 

As described above, Minn. Stat. §§, 116.07, subd.9, 116.072 and 115.071 give the MPCA the authority to 

enforce any provisions of chapter 116 and the rules, standards, orders, stipulation agreements, 

schedules of compliance, and permits adopted or issued thereunder or under any other law relating to 

air contamination. These provisions include: entering into orders, schedules of compliance, stipulation 

agreements, requiring owners or operators of emissions facilities to install and operate monitoring 

equipment, and conducting investigations. Minn. Stat. § 116.072 authorizes the MPCA to issue orders 

and assess administrative penalties to correct violations of the agency’s rules, statutes, and permits, and 

Minn. Stat.§ 115.071 outlines the remedies that are available to address such violations. Additionally, 
3 

Minn. R. 7009.0030 to 7009.0040 provide for enforcement measures related to ambient air quality 

standards. 

Minn. R. ch. 7007 contains the requirements of the MPCA’s permitting program, through which 

enforceable emission limitations are placed on facilities. Minnesota permits Prevention of Significant 

Deterioration (PSD) sources under 40 CFR 52.21, by a delegation of authority from EPA through a 

Federal Implementation Plan (FIP). Minnesota does not have any nonattainment areas for the NAAQS 

referenced in this submission; however the state has an approved nonattainment New Source Review 

(NSR) program, which was approved by EPA in the Federal Register on February 23, 2004. Minn. R. 

7007.4000 through 7007.4030 incorporates by reference the NSR requirements specified in 40 CFR 51, 

Appendix S. 

To address the pre-construction regulation of the modification and construction of minor stationary 

sources and minor modifications of major stationary sources, EPA approved Minnesota’s minor NSR 

program on May 24, 1995. Since this date, MPCA and EPA have relied on these existing provisions to 

ensure that new and modified sources not captured by the major NSR permitting programs do not 

interfere with attainment and maintenance of the NAAQS referenced in this submission. 

Section 110(a)(2)(D): Interstate Transport Provisions 

Minnesota notes that EPA’s September 2013 multi-pollutant infrastructure SIP guidance does not 

address the requirements of section 110(a)(2)(D)(i)(I) of the CAA, which requires plans to have 

provisions prohibiting sources from emitting air pollutants in amounts that would contribute 

significantly to nonattainment in, or interfere with maintenance by, any other state. 

On January 20, 2012, the EPA determined that no area in the country is in violation of the 2010 NO2

NAAQS. Since there are no nonattainment areas in the country for this pollutant, Minnesota’s NO2

emissions cannot be significantly contributing to nonattainment in any other state. Minnesota also does 

not have any nonattainment areas for the pollutants referenced in this submission. As a result, we do 

not anticipate that sources in Minnesota are emitting pollutants that would significantly contribute to 

nonattainment in, or interfere with maintenance by, any other state. 

Section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of 

emissions activity in one state from interfering with measures required to prevent significant 

deterioration of air quality or to protect visibility in another state. 

As mentioned above, Minnesota is already under an EPA delegation of authority FIP for PSD and 

operates an approved nonattainment NSR (NNSR) permitting program. Therefore all new major sources 

and major modifications are subject to a comprehensive EPA-approved permitting program that applies 

to all NSR pollutants. These programs require the consideration of emission impacts on the air quality of 

other states. Minn. R. 7007.0900 provides for review of part 70 permits by affected states. 

While Minnesota has no nonattainment areas for the NAAQS referenced in this submission, our NNSR 

regulations are contained in Minn. R. 7007.4000 – 7007.4030. These rules ensure that were there to be 

any nonattainment areas in Minnesota, the sources located in those areas would not interfere with 

neighboring states’ PSD programs. 

EPA approved significant portions of Minnesota’s regional haze plan on June 12, 2012 and is in the 

process of implementing a FIP for the unapproved sources in Minnesota. However, sources within the 
4 

state’s jurisdiction are not interfering with neighboring states’ abilities to protect visibility; therefore, we 

believe that Minnesota has successfully met the visibility protection requirements contained in section 

110(a)(2)(D)(i)(II). 

Minnesota administers the federally promulgated PSD regulations codified in 40 CFR 52.21; therefore, 

new or modified sources are required to notify neighboring states of potential negative air quality 

impacts. These standards fulfill the requirements of sections 110(a)(2)(D)(ii) and 126(a). Minnesota has 

no other obligations under section 126, nor do we have obligations under section 115 as it relates to 

international pollution abatement. 

Section 110(a)(2)(E): Adequate Personnel, Funding, and Authority 

The MPCA is the agency responsible for developing, implementing, and enforcing the SIP. The MPCA’s 

Performance Partnership Grant (PPG) Agreement with the EPA provides the MPCA’s assurances of 

resources to carry out certain air programs. Information on MPCA’s authorized spending by program, 

along with program priorities, can be found at http://www.pca.state.mn.us/jsri3d6. A brief overview of 

MPCA’s budget can be found at http://www.pca.state.mn.us/sbiz3d7. 

The MPCA’s authority to enforce the NAAQS has been documented above. 

Minnesota’s satisfaction of section 110(a)(2)(E)(ii) as it relates to the state board requirements of 

section 128 is described in detail below. The rules submitted here to meet the requirements of section 

128 of the Clean Air Act also satisfy any applicable requirements related to section 110(a)(2)(E)(ii) for the 

NAAQS referred to in this rulemaking. To the extent that the state board requirements are non-NAAQS 

specific, we request that EPA also approve these rules as satisfying the applicable section 110(a)(2)(E)(ii) 

requirements for any NAAQS for which final action has not been taken, e.g., the 2006 PM2.5 NAAQS and 

the 2008 lead (Pb) NAAQS. 

Section 110(a)(2)(F): Stationary Source Monitoring and Reporting 

Minn. R. Ch. 7011 contains Minnesota’s monitoring rules, which have been previously approved by EPA 

and included in Minnesota’s SIP. Minn. Stat. § 116.07, subd. 9 gives MPCA the authority to require 

owners or operators of emission facilities to install and operate monitoring equipment. Minn. R. 

7007.0800, subp. 4 lays out the minimum monitoring requirements that are included in each permit for 

major stationary sources. Minn. R. 7017 sets forth monitoring and testing requirements, including rules 

for continuous monitoring. Minn. R. 7019 contains the requirement for sources to annually submit an 

emission inventory report to the MPCA. The report must contain information on all pollutants for which 

a NAAQS has been established, including those at issue in this SIP. 

Section 110(a)(2)(G): Emergency Episodes 

Based on historic ambient monitoring data, the MPCA does not believe that specific contingency 

measures are generally needed for NO2, SO2, ozone, or PM2.5. Nonetheless, Minn. Stat. § 116.11 

provides the MPCA with emergency powers, which is further elaborated in Minn. R. 7000.5000. 
5 

“116.11 EMERGENCY POWERS. 

If there is imminent and substantial danger to the health and welfare of the people of 

the state, or of any of them, as a result of the pollution of air, land, or water, the agency 

may by emergency order direct the immediate discontinuance or abatement of the 

pollution without notice and without a hearing or at the request of the agency, the 

attorney general may bring an action in the name of the state in the appropriate district 

court for a temporary restraining order to immediately abate or prevent the pollution. 

The agency order or temporary restraining order shall remain effective until notice, 

hearing, and determination pursuant to other provisions of law, or, in the interim, as 

otherwise ordered. A final order of the agency in these cases shall be appealable in 

accordance with chapter 14.”

Section 110(a)(2)(H): Future SIP Revisions 

The MPCA has submitted many updates to the existing SIP in the last several years and intends to 

continue to submit updates as needed in order to ensure changes at existing facilities will not jeopardize 

the NAAQS, to comply with new or revised NAAQS, or as requested by EPA. The ability to adopt or 

rescind rules and standards related to air pollution is found in Minn. Stat. § 116.07, subd. 4; the 

authority to issue permits to regulate air pollution can be found in Minn. Stat. § 116.07, subd. 4a. 

Section 110(a)(2)(I): Nonattainment area plan or plan revision Under Part D 

Not applicable. According to the EPA’s interpretation of the CAA this element does not need to be 

addressed in the context of an infrastructure SIP submission. 

Section 110(a)(2)(J): Consultation with government officials, public notification, PSD, and visibility 

protection 

Historically, MPCA actively participated in the Central Regional Air Planning Association as well as the 

Central States Air Resource Agencies. MPCA is now a full-time member of the Lake Michigan Air 

Directors Consortium, and it has also demonstrated that it frequently consults and discusses issues with 

pertinent Tribes. 

Minnesota dedicates portions of the MPCA website to enhancing public awareness of measures that can 

be taken to prevent exceedances for the NAAQS referenced in this rulemaking. Related pages can be 

found here: http://www.pca.state.mn.us/index.php/air/air-quality-and-pollutants/general-airquality/index.html

The MPCA’s procedural rules can be found in Minn. R. ch. 7000. Minn. R. 7007.0850 lists the public 

notice and comment procedures for the issuance of air quality permits. The public may petition for 

meetings and hearings, including a contested case hearing (Minn. R. 7000.1800). Minn. R. 7007.0900 

provides for review of part 70 permits by affected states. The MPCA regularly works with Federal Land 

Managers to discuss issues impacting Minnesota’s Class I areas. According to EPA’s interpretation of the 

CAA, the visibility sub-element of element J does not need to be addressed in this infrastructure SIP. 
6 

The MPCA provides a public notice of all SIP revisions and offers the public the ability to request a public 

meeting. A meeting is held when one is requested. In addition, the public may petition to have items 

placed on the agenda for the MPCA Citizens’ Board, as described in Minn. R. 7000.0650. 

As discussed in greater detail above, Minnesota is under a delegated authority FIP for the PSD program. 

Section 110(a)(2)(K): Air Quality Modeling Data 

MPCA reviews the potential impact of major and some minor new sources. Under Minn. R. 7007.0500, 

MPCA may require applicable major sources in Minnesota to perform modeling to show that emissions 

do not cause or contribute to a violation of any NAAQS. Under Minn. R. 7007.0500, subp. 1E, the MPCA 

may notify an emissions source that it is required to demonstrate that its emissions do not cause a 

violation of ambient air quality standards. The MPCA routinely requires such modeling. Further 

information on air modeling can be found at http://www.pca.state.mn.us/nwqh421. 

MPCA also maintains the capability to perform its own modeling. Because Minnesota administers the 

federally promulgated PSD regulations, pre-construction permitting modeling is conducted in 

compliance with EPA’s regulations.

Section 110(a)(2)(L): Permitting Fees 

MPCA implements and operates the Title V permit program, which EPA approved on December 4, 2001 

(66 FR 62967). Additionally, Minn. R. 7002.0005 through 7002.0085 contain the provisions, 

requirements, and structures associated with the costs for reviewing, approving, implementing, and 

enforcing various types of permits. Minnesota requests that EPA approve Minn. R. 7002.0005 through 

7002.0085 into the SIP, which, in conjunction with our existing Title V permit program, satisfy the 

requirements of section 110(a)(2)(L). Specifically, these provisions consist of: 

- 7002.0005 Scope 

- 7002.0015 Definitions 

- 7002.0016 Air Quality Permit Application Fees 

- 7002.0017 Air Quality Permit Application and Additional Fee Target 

- 7002.0018 Computation of Dollar per Point for Air Permits 

- 7002.0019 Air Quality Permit Application Fees and Additional Fees 

- 7002.0021 Capped Costs for Small Businesses and Cities 

- 7002.0022 Payment of Application and Additional Fees 

- 7002.0023 Notification of Error of Additional Fee 

- 7002.0025 Annual Emission Fee Rates 

- 7002.0035 Air Quality Annual Fee Target 

- 7002.0045 Computation of the Dollar per Ton Figure 

- 7002.0065 Payment of Annual Fees 

- 7002.0075 Notification of Error of Annual Fee 

- 7002.0085 Late Payment Fee 

 
7 

Section 110(a)(2)(M): Consultation/participation by affected local entities 

The MPCA develops, implements, and enforces the state air quality program and regularly consults with 

local political subdivisions affected by the SIP, where applicable. Under Minn. Stat. § 116.05, other 

departments and agencies are directed to cooperate with the MPCA and the MPCA is authorized to 

work with them. 

The Minnesota Administrative Procedures Act (Minn. Stat. ch. 14) provides general notice and comment 

procedures that govern Minnesota rulemaking, but are followed during SIP development. The MPCA 

provides a public notice of all SIP revisions and offers the public the opportunity to request a public 

meeting. A meeting is held when one is requested. In addition, the public may petition to have items 

placed on the agenda for the MPCA Citizens’ Board, as explained in Minn. R. 7000.0650. 

Section 128: State Board Requirements 

Section 128(a) of the Clean Air Act has two requirements: (i) that any board or body which approves 

permits or enforcement orders under this chapter shall have a majority of members who represent the 

public interest and do not derive any significant portion of their income from persons subject to permits 

and enforcement orders under this chapter, and (ii) that any potential conflicts of interest by members 

of such board or body or the head of an executive agency with similar powers be adequately disclosed. 

Minnesota believes that its existing regulations adequately address both requirements, and requests 

that EPA approve these regulations into the SIP as meeting the applicable requirements of section 128 

of the Clean Air Act, as well as the applicable “infrastructure” SIP requirements, specifically section 

110(a)(2)(E)(ii), for the NAAQS addressed in this submittal – the 2010 SO2, 2010 NO2, 2008 ozone, and 

2012 PM2.5 NAAQS – and for any other NAAQS for which EPA has not yet taken final action, e.g., the 

2006 PM2.5 and the 2008 Pb NAAQS. 

Section 128(a)(1) specifies that any board or body which approves permits or enforcement orders shall 

have at least a majority of members who represent the public interest and do not derive any significant 

portion of their income from persons subject to permits and enforcement orders. 

Minnesota’s procedures governing agency boards are spread across its statutes, laws, and rules but 

combine to strongly protect the public interest in the governance of state agencies. In 1978 the 

Minnesota Legislature passed the Open Appointments Act to give all citizens an equal opportunity to 

apply and be considered for a position on a state board or council. Minn. Stat. § 15.0597, subd. 4 

requires that the Secretary of State publically post all board openings for all state agencies. These 

listings can be found here: http://www.sos.state.mn.us/index.aspx?page=5. Minn. Stat. § 15.0597, 

subd. 5 goes on to require that the vacancy be posted for at least twenty-one days. Any person may selfnominate for an appointment or nominate another person with his or her consent. All people must be 

considered through the application process, and if someone submits an application at the suggestion of 

the appointing authority, he or she must indicate as much on the application. According to 

Minn. Stat. § 15.0597, subd. 6, at least five days prior to appointment, the appointing authority must 

make a public announcement providing information on the intended appointee. All applications are 

considered public information. 

Minn. Stat. § 116.02, subd. 1 lays out specific requirements for the MPCA board, which must include at 

least one “person knowledgeable in the field of agriculture,” at least one “representative of organized 
8 

labor,” and the MPCA’s commissioner. The board is comprised of a total of nine members; therefore, six 

members are unrestricted in their affiliation. 

Minn. Stat. § 116.02, subd. 3 goes on to specify that the board should be “broadly representative of the 

skills and experience necessary” to lead the agency in its legislatively-required responsibilities. It also 

limits potential conflicts of interest by excluding, except for the commissioner, officers or employees of 

the state or federal government; limiting the number of officials or employees of municipalities or other 

governmental subdivisions; and excluding ex officio members on the management board for a municipal 

sanitary sewage disposal system. 

Finally, Minn. Stat. § 15.0575, subd. 3 ensures that members of the board do not have a substantial 

financial interest in board participation by allowing for only a nominal compensation of $55 per day. 

Together these pieces of legislation mean that the board of the MPCA broadly represents the public 

interest by being drawn from the public at large and by bringing the necessary skills to the agency 

without being tied to the agency beyond board participation. 

To reiterate, Minnesota requests that EPA approve the following statutes, laws, and rules into the SIP as 

meeting the requirements of section 128(a)(1) of the CAA, as well as the applicable requirements for any 

infrastructure SIP for which EPA has yet to take final action, including the 2010 SO2, 2010 NO2, 2008 

ozone, 2006 and 2012 PM2.5, and 2008 Pb NAAQS: 

- Minn. Stat. § 15.0575, subd. 3 

- Minn. Stat. § 15.0597, subd. 4 

- Minn. Stat. § 15.0597, subd. 5 

- Minn. Stat. § 15.0597, subd. 6 

- Minn. Stat. § 116.02, subd. 1 

- Minn. Stat. § 116.02, subd. 3 

Section 128(a)(2) requires that any potential conflicts of interest by members of such board or body or 

the head of an executive agency with similar powers be adequately disclosed. 

As with representing the public interest, Minnesota takes seriously potential conflicts of interest within 

its agency boards. Under Minn. Stat. § 10A, matters of disclosure and public interest are governed by 

the Minnesota Campaign Finance and Public Disclosure Board. The Board’s handbook can be found 

here: http://www.cfboard.state.mn.us/handbook/hb_public_officials.pdf. 

Minn. Stat. § 10A.09 requires that statements of economic interest be filed with the Board upon 

assuming the role of board member and a supplementary statement every year thereafter. Minn. R. 

7000.9000 and Minn. Stat. § 10A.07 require that a member of a board who has a financial or 

employment interest relating to a matter before the board must make this interest known in writing and 

recuse him or herself from voting on the matter. Minn. R. 7000.0300 further clarifies the need for 

candor and disclosure by board members, requiring that: 

“In all formal or informal negotiations, communications, proceedings, and other 

dealings between any person and any member, employee, or agent of the board or 

commissioner, it shall be the duty of each person and each member, employee, or agent 

of the board or commissioner to act in good faith and with complete truthfulness, 

accuracy, disclosure, and candor.”
9 

These provisions together strive to hold members of the MPCA’s board accountable and to ensure that 

they will disclose any potential conflicts of interest and recuse themselves from further proceedings on 

the issue. 

To reiterate, the MPCA requests that EPA approve the following statutes, laws, and rules into the 

Minnesota SIP to fulfill the requirements of section 128(a)(2) of the CAA, as well as the applicable 

requirements for any infrastructure SIP for which EPA has yet to take final action, including the 2010 

SO2, 2010 NO2, 2008 ozone, 2006 and 2012 PM2.5, and 2008 Pb NAAQS: 

- Minn. Stat. § 10A.09 

- Minn. Stat. § 10A.07 

- Minn. R. 7000.9000 

- Minn. R. 7000.0300 
Attachments 

Attachment 1: Rules and Statutes for Incorporation into Minnesota’s State Implementation Plan

Attachment 2: Public Notice 

Attachment 3: Comments Received 

Attachment 4: Response to Comments 

Attachment 5: Completeness Review 
Attachment 1: Rules and Statutes for Incorporation into Minnesota’s State Implementation Plan
1 REVISOR 7002.0005

7002.0005 SCOPE.

Parts 7002.0005 to 7002.0085 apply to all persons required to obtain an air emission

permit from the Minnesota Pollution Control Agency under chapter 7007.

Statutory Authority: MS s 14.386; 14.388; 116.07

History: 17 SR 440; 18 SR 1059; 28 SR 316

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0015

7002.0015 DEFINITIONS.

Subpart 1. Scope. For the purposes of parts 7002.0005 to 7002.0085, the terms defined

in this part have the meanings given them. The definitions in the state air pollution control

rules as defined in part 7005.0100 apply unless the terms are defined in this part.

Subp. 2. [Repealed, 21 SR 165]

Subp. 2a. Chargeable pollutant. "Chargeable pollutant" means the following:

A. nitrogen oxides (NO

x

) or any volatile organic compound; and

B. PM-10, sulfur dioxide, lead, and any other pollutant for which a national

ambient air quality standard has been promulgated, except carbon monoxide.

Subp. 2b. Dollar per ton figure or $X. "Dollar per ton figure" or "$X" means

the dollar amount assessed for each ton of chargeable pollutant determined under part

7002.0045.

Subp. 3. Emission inventory. "Emission inventory" means the inventory of actual

emissions required under part 7019.3000.

Subp. 3a. Emission reporting facility. "Emission reporting facility" means any

facility for which the owner or operator of the facility must obtain an air emission permit

under chapter 7007 except any facility permitted under part 7007.1120, registration permit

option B.

Subp. 4. [Repealed, 21 SR 165]

Statutory Authority: MS s 116.07

History: 17 SR 440; 18 SR 1059; 21 SR 165

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0016

7002.0016 AIR QUALITY PERMIT APPLICATION FEES AND ADDITIONAL

FEES.

Subpart 1. Fee required. A person who applies for an air quality permit or permit

amendment under chapter 7007, excluding reissuance of individual state or Part 70

operating permits, or who submits an applicability request shall submit with the application

or applicability request the appropriate application fee. Failure to submit the fee as specified

in part 7002.0019, subpart 1, renders the application incomplete and the agency shall

suspend processing of the application until the fee is received. Fees are nonrefundable.

Subp. 2. Fee determination. Application fees and additional fees are based on a point

system established in part 7002.0019. The points shall be multiplied by the dollar per point

value as determined in part 7002.0018.

Statutory Authority: MS s 116.07

History: 34 SR 1205

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0017

7002.0017 AIR QUALITY PERMIT APPLICATION AND ADDITIONAL FEE

TARGET.

The agency shall set the application and additional fee target as described in items A

to C.

A. The unadjusted fee target is $4,000,000 for each new biennium (biennial

target), as modified according to item B.

B. Beginning July 1, 2011, and each biennium thereafter, the unadjusted fee target

in item A shall be adjusted for inflation using the aggregated annual consumer price index

since 2009 and becomes the new unadjusted fee target.

C. The adjusted fee target is the unadjusted fee target adjusted as follows:

(1) if the agency failed to collect its fee target the previous biennium, after

making reasonable effort to do so, the shortfall must be added to the next biennium's fee

target; and

(2) if the agency collected more than its fee target the previous biennium,

the excess must be subtracted from the next biennium's fee target.

Statutory Authority: MS s 116.07

History: 34 SR 1205

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0018

7002.0018 COMPUTATION OF DOLLAR PER POINT FOR AIR PERMITS.

The agency computes the dollar per point value for each biennium as follows:

$ per point = T/(A + B) rounded up to the next five dollar increment, where:

$ per point = dollar amount applied to points determined under part 7002.0019.

T = adjusted fee target, as determined in part 7002.0017, item C.

A = the previous five-year annual average number of points for each type of permit

application in part 7002.0019, subpart 1.

B = the previous five-year annual average number of points for each type of additional

activity in part 7002.0019, subpart 2.

Statutory Authority: MS s 116.07

History: 34 SR 1205

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0019

7002.0019 AIR QUALITY PERMIT APPLICATION FEES AND ADDITIONAL

FEES.

Subpart 1. Application points. The points assessed for permit application types

designated in this subpart shall be multiplied by the dollar per point value as determined in

part 7002.0018 to calculate the application fee.

Application Type Points

A. Administrative amendment or administrative change of name, ownership,

or control

1

One point shall be assessed for a request for an administrative amendment

or a request for change in name, ownership, or control of a stationary

source as addressed in part 7007.1100, subpart 8; 7007.1110, subpart 15;

7007.1142, subpart 5; or 7007.1400.

B. Registration permit 2

C. State general permit 3

D. Part 70 general permit 4

E. Minor amendment 4

F. Capped permit 4

G. Applicability requests 10

These points shall be applied to each request received for determination of

the applicability of rules in advance of receipt of a permit application. If

multiple requests for reviews are submitted to the Pollution Control Agency

over time, each request is subject to the fee.

H. Moderate amendment 15

I. Major amendment 25

J. Individual state permit 50

K. Individual Part 70 permit 75

Subp. 2. Additional points. The points assessed for activities designated in this

subpart shall be multiplied by the dollar per point value as determined in part 7002.0018 to

calculate the additional fee.

Activity Points

A. Modeling review 15

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
2 REVISOR 7002.0019

The points for modeling review shall not be assessed for screening

modeling or CAPS modeling.

B. Best available control technology (BACT) review 15

BACT points shall be applied for each prevention of significant

deterioration (PSD) pollutant analyzed.

C. Lowest achievable emission rate (LAER) review 15

LAER points shall be applied for each nonattainment new source review

(NSR) pollutant analyzed.

D. Clean Air Interstate Rule (CAIR)/Part 75 continuous emission monitoring

analysis

10

E. New source performance standard (NSPS) review 10

Points shall be applied for each applicable standard but do not apply to

registration, capped, or general permit applications.

F. National emission standards for hazardous air pollutants (NESHAP) review 10

Points shall be applied for each applicable standard but do not apply to

registration, capped, or general permit applications.

G. Case-by-case maximum achievable control technology (MACT) review 20

Points shall be applied for each applicable source category reviewed.

H. Netting 10

Points shall be applied for each prevention of significant deterioration

(PSD) pollutant for which a netting analysis is performed.

I. Limit to remain below programmatic regulatory threshold 10

Points shall be applied, if applicable, to each of the following regulatory

programs: Part 70, NESHAP, EAW, AERA, NSPS, PSD, and nonattainment

NSR.

J. Plantwide applicability limit (PAL) 20

Points shall be applied for each prevention of significant deterioration

(PSD) pollutant for which a plantwide applicability limit is established.

K. Air emission risk analysis (AERA) review 15

L. Variance request under part 7000.7000 35

M. Confidentiality request under part 7000.1300 2

N. Environmental assessment worksheet (EAW) review

Points shall be assigned as follows:

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
3 REVISOR 7002.0019

Part 4410.4300, subparts 18, item A; and 29 15

Part 4410.4300, subparts 8, items A and B; 10, items A to C; 16, items

A and D; 17, items A to C and E to G; and 18, items B and C

35

Part 4410.4300, subparts 4; 5, items A and B; 13; 15; 16, items B and

C; and 17, item D

70

A fee for EAW review shall be charged only if the project falls into

a mandatory category specified in part 4410.4300, the agency is the

designated responsible governmental unit (RGU), and an air or water permit

is required for the project. If a facility requires both an air and water permit,

the points for an EAW review shall be charged only once and multiplied by

the lower of the dollar per point value for an air or water permit.

Statutory Authority: MS s 116.07

History: 34 SR 1205

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0021

7002.0021 CAPPED COSTS FOR SMALL BUSINESSES AND CITIES.

For one year after July 1, 2009, the combined cost of the application fee and an invoice

for additional fees for a small business or small city, as determined under Minnesota

Statutes, section 14.127, subdivision 1, is capped at $25,000.

Statutory Authority: MS s 116.07

History: 34 SR 1205

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0022

7002.0022 PAYMENT OF APPLICATION AND ADDITIONAL FEES.

Application fees assessed under part 7002.0019, subpart 1, shall be submitted with the

application and made payable to the Minnesota Pollution Control Agency. Additional fees

assessed under part 7002.0019, subpart 2, shall be paid within 30 days of the invoice date

from the agency. The person submitting the fee shall make the payment as directed in the

invoice. Final action on the permit shall not be taken until all invoices are paid.

Statutory Authority: MS s 116.07

History: 34 SR 1205

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0023

7002.0023 NOTIFICATION OF ERROR OF ADDITIONAL FEE.

A person who believes that the assessed additional fee under part 7002.0019, subpart

2, is in error shall provide a written explanation of the person's position to the commissioner

within 60 days of the invoice date. The assessed fee shall be paid in the time frame required

in part 7002.0022. The commissioner shall, within 60 days of the timely receipt of the

person's written explanation:

A. provide a written explanation of why the fee was not in error; or

B. if the commissioner finds that the assessed fee was in error, refund the

overpayment.

Statutory Authority: MS s 116.07

History: 34 SR 1205

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0025

7002.0025 ANNUAL EMISSION FEE RATES.

Subpart 1. Calculation of fee.

A. Owners or operators of emission reporting facilities shall be assessed an

annual emission fee for each ton of a chargeable pollutant emitted to the air by the facility.

Emission reporting facilities shall be assessed a fee of $X for each ton of any chargeable

pollutant as established in the most recently available emission inventory.

B. Notwithstanding item A, the owner or operator of any emission reporting

facility or any facility issued an option B registration permit under part 7007.1120 that

chooses to be assessed a fee under item C, subitem (1), with less than one ton of total actual

emissions shall be assessed an annual fee of $25.

C. As described in subitems (1) and (2), the owner or operator of a facility issued

an option B registration permit under part 7007.1120 shall be assessed an annual emission

fee based on either the reported quantity of VOC-containing materials purchased or used

(whichever was stated in the facility's permit application) or the actual emissions from the

use of VOC-containing materials.

(1) If the owner or operator chooses to be assessed the fee based on the actual

emissions from the use of VOC-containing materials, the facility's actual emissions shall

be determined in accordance with parts 7019.3000 to 7019.3090. The assessed fee shall be

determined in accordance with item A.

(2) If the owner or operator chooses to be assessed the fee based on the

quantity of VOC-containing materials purchased or used (whichever was stated in the

facility's permit application), the fee shall be:

(a) $50 if the quantity of VOC-containing materials is less than or equal

to 1,000 gallons; or

(b) $140 if the quantity of VOC-containing materials is more than 1,000

and less than 2,000 gallons.

Subp. 2. [Repealed, 21 SR 165]

Subp. 2a. [Repealed, L 2012 c 272 s 98]

Subp. 3. Facilities failing to submit emissions inventories. If an emission reporting

facility fails to submit an emissions inventory as required by part 7019.3000, it shall be

assessed an annual fee for that facility that is $X times 1-1/2 times the most recent actual

emissions in tons for which an emissions fee was assessed under part 7019.3000. If the

facility has never submitted an emissions inventory as required under part 7019.3000,

but has submitted a permit application under chapter 7007, it shall be assessed an annual

emission fee for that facility that is $X times 1-1/2 times the estimated actual emissions

as stated in the facility's permit application.

Copyright ©2012 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
2 REVISOR 7002.0025

If the owner or operator of a facility that is required to obtain a permit under chapter

7007 has not submitted a permit application which includes an estimate of the actual

emissions, it shall be assessed an annual fee that is $X times 1-1/2 times the estimated

potential to emit of that facility, as defined in part 7005.0100, subpart 35a.

If a facility issued an option B registration permit fails to submit an emission inventory,

it shall be assessed an annual fee of $210.

Statutory Authority: MS s 116.07

History: 17 SR 440; 18 SR 614; 21 SR 165; 32 SR 904; L 2012 c 272 s 98

Published Electronically: August 3, 2012

Copyright ©2012 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0035

7002.0035 AIR QUALITY ANNUAL FEE TARGET.

The annual fee target shall be set as described in items A and B.

A. The unadjusted fee target shall be the greater of the following:

(1) the sum of:

(a) the amount directly appropriated to the Air Quality Division from

the environmental fund for that fiscal year; and

(b) the Air Quality Division's portion of the appropriation from the

environmental fund to the agency's general support program, as determined by using the

indirect cost allocation plan approved by the Minnesota Department of Management and

Budget under Minnesota Statutes, section 16A.127, subdivision 4; or

(2) the amount calculated by multiplying $25 per ton, adjusted for inflation

since 1989, times the number of tons of each chargeable pollutant listed in the most recently

available emission inventory. No pollutant shall be double counted. A maximum of 4,000

tons per pollutant per facility shall be used for this calculation. The adjustment for inflation

shall be in accordance with the adjustment described in Minnesota Statutes, section 116.07,

subdivision 4d, paragraph (d).

B. The amounts described in item A must be adjusted as follows:

(1) if the agency failed to collect its fee target the previous year, after making

reasonable efforts to do so, the shortfall must be added to the next year's fee target;

(2) if the agency collected more than its fee target the previous year, the

excess must be subtracted from the next year's fee target; and

(3) for any year, the commissioner may increase the fee target by up to five

percent to reflect the anticipated fee nonpayment rate. This increase must not be considered

for purposes of calculating a deficit under subitem (1).

Statutory Authority: MS s 116.07

History: 17 SR 440; 21 SR 165; L 2009 c 101 art 2 s 109

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0045

7002.0045 COMPUTATION OF THE DOLLAR PER TON FIGURE.

The dollar per ton figure "$X" used in part 7002.0025 shall be computed as follows:

$X = [F - [ P + R + ($25 x N)]]/(T - L)

where:

$X = Dollar amount per ton figure.

F = Total annual fee target, as determined in part 7002.0035.

P = Total amount billed as newly permitted facility fees in the previous calendar year

under part 7002.0025, subpart 2a.

R = Total amount to be billed under part 7002.0025, subpart 1, item C, subitem (2), as

option B registration permit annual emission fees based on the quantity of VOC-containing

materials purchased or used.

N = Total number of emission reporting facilities and facilities issued option B

registration permits that are assessed an annual emission fee based on actual emissions

under part 7002.0025, subpart 1, item C, subitem (1), with less than one ton of total actual

emissions of chargeable pollutants.

T = Total number of tons of all chargeable pollutants listed in the most recently

available annual emissions inventory emitted from emission reporting facilities and

facilities issued option B registration permits that are assessed an annual emission fee

based on actual emissions under part 7002.0025, subpart 1, item C, subitem (1). No

pollutant shall be double counted.

L = Total number of tons of all chargeable pollutants listed in the most recently

available annual emission inventory emitted from emission reporting facilities and facilities

issued option B registration permits that are assessed an annual emission fee based on

actual emissions under part 7002.0025, subpart 1, item C, subitem (1), that emit less than

one ton of total actual emissions of chargeable pollutants. No pollutant shall be double

counted.

Statutory Authority: MS s 14.386; 14.388; 116.07

History: 17 SR 440; 21 SR 165; 28 SR 316

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0065

7002.0065 PAYMENT OF ANNUAL FEES.

Fees assessed under part 7002.0025 shall be paid within 30 days of the invoice date.

The person submitting the fee shall make the payment as directed in the invoice.

Statutory Authority: MS s 14.386; 14.388; 116.07

History: 17 SR 440; 21 SR 165; 28 SR 316; 34 SR 1205

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0075

7002.0075 NOTIFICATION OF ERROR OF ANNUAL FEE.

A person who believes that the assessed annual emission fee is in error shall provide

a written explanation of the person's position to the commissioner within 60 days of the

invoice date. A person who believes that an error exists in emissions inventory data shall

submit an explanation in accordance with part 7019.3000, subpart 2. The assessed fee shall

be paid in the time frame required in part 7002.0065. The commissioner shall, within 60

days of the timely receipt of the person's written explanation:

A. provide a written explanation of why the fee was not in error; or

B. if the commissioner finds that the assessed fee was in error, refund the

overpayment.

Statutory Authority: MS s 116.07

History: 17 SR 440; 21 SR 165; 28 SR 1482; 34 SR 1205

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7002.0085

7002.0085 LATE PAYMENT FEE.

A permittee subject to one or more fees under parts 7002.0005 to 7002.0045 shall pay a

late payment fee of ten percent of the payment due for failure to pay an assessed fee within

60 days of the invoice date. At 30-day intervals thereafter, the permittee shall be assessed

an additional ten percent of the original payment for failure to pay the assessed fee within

that 30-day period. All late fees are due upon receipt of an invoice.

Statutory Authority: MS s 14.386; 14.388; 116.07

History: 17 SR 440; 21 SR 165; 28 SR 316; 34 SR 1205

Published Electronically: March 11, 2010

Copyright ©2010 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 MINNESOTA STATUTES 2013 10A.07

10A.07 CONFLICTS OF INTEREST.

Subdivision 1. Disclosure of potential conflicts. A public official or a local official elected

to or appointed by a metropolitan governmental unit who in the discharge of official duties would

be required to take an action or make a decision that would substantially affect the official's

financial interests or those of an associated business, unless the effect on the official is no greater

than on other members of the official's business classification, profession, or occupation, must

take the following actions:

(1) prepare a written statement describing the matter requiring action or decision and the

nature of the potential conflict of interest;

(2) deliver copies of the statement to the official's immediate superior, if any; and

(3) if a member of the legislature or of the governing body of a metropolitan governmental

unit, deliver a copy of the statement to the presiding officer of the body of service.

If a potential conflict of interest presents itself and there is insufficient time to comply with

clauses (1) to (3), the public or local official must orally inform the superior or the official body

of service or committee of the body of the potential conflict.

Subd. 2. Required actions. If the official is not a member of the legislature or of the

governing body of a metropolitan governmental unit, the superior must assign the matter, if

possible, to another employee who does not have a potential conflict of interest. If there is no

immediate superior, the official must abstain, if possible, in a manner prescribed by the board

from influence over the action or decision in question. If the official is a member of the legislature,

the house of service may, at the member's request, excuse the member from taking part in the

action or decision in question. If the official is not permitted or is otherwise unable to abstain from

action in connection with the matter, the official must file a statement describing the potential

conflict and the action taken. A public official must file the statement with the board and a local

official must file the statement with the governing body of the official's political subdivision. The

statement must be filed within a week of the action taken.

Subd. 3. Interest in contract; local officials. This section does not apply to a local official

with respect to a matter governed by sections 471.87 and 471.88.

Subd. 4. Exception; judges. Notwithstanding subdivisions 1 and 2, a public official who

is a district court judge, an appeals court judge, or a Supreme Court justice is not required to

comply with the provisions of this section.

History: 1974 c 470 s 7; 1975 c 271 s 6; 1978 c 463 s 33; 1986 c 444; 1990 c 608 art 2 s 1;

1974 c 470 s 7; 1975 c 271 s 6; 1978 c 463 s 33; 1986 c 444; 1990 c 608 art 2 s 1; 1999 c 220

s 50; 2013 c 138 art 2 s 2

Copyright © 2013 by the Office of the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 MINNESOTA STATUTES 2013 10A.09

10A.09 STATEMENTS OF ECONOMIC INTEREST.

Subdivision 1. Time for filing. Except for a candidate for elective office in the judicial

branch, an individual must file a statement of economic interest with the board:

(1) within 60 days of accepting employment as a public official or a local official in a

metropolitan governmental unit;

(2) within 14 days after filing an affidavit of candidacy or petition to appear on the ballot for

an elective state office or an elective local office in a metropolitan governmental unit;

(3) in the case of a public official requiring the advice and consent of the senate, within 14

days after undertaking the duties of office; or

(4) in the case of members of the Minnesota Racing Commission, the director of the

Minnesota Racing Commission, chief of security, medical officer, inspector of pari-mutuels, and

stewards employed or approved by the commission or persons who fulfill those duties under

contract, within 60 days of accepting or assuming duties.

Subd. 2. Notice to board. The secretary of state or the appropriate county auditor, upon

receiving an affidavit of candidacy or petition to appear on the ballot from an individual required

by this section to file a statement of economic interest, and any official who nominates or employs

a public or local official required by this section to file a statement of economic interest, must

notify the board of the name of the individual required to file a statement and the date of the

affidavit, petition, or nomination.

Subd. 3. Notice of filing. The board must notify the presiding officer of the house that will

approve or disapprove the nomination, of the name of an individual who has filed a statement of

economic interest with the board, a copy of the statement, and the date on which the statement

was filed.

Subd. 4. [Repealed, 1978 c 463 s 109]

Subd. 5. Form. A statement of economic interest required by this section must be on a form

prescribed by the board. The individual filing must provide the following information:

(1) name, address, occupation, and principal place of business;

(2) the name of each associated business and the nature of that association;

(3) a listing of all real property within the state, excluding homestead property, in which the

individual holds: (i) a fee simple interest, a mortgage, a contract for deed as buyer or seller, or an

option to buy, whether direct or indirect, if the interest is valued in excess of $2,500; or (ii) an

option to buy, if the property has a fair market value of $50,000 or more;

(4) a listing of all real property within the state in which a partnership of which the individual

is a member holds: (i) a fee simple interest, a mortgage, a contract for deed as buyer or seller, or

an option to buy, whether direct or indirect, if the individual's share of the partnership interest

is valued in excess of $2,500; or (ii) an option to buy, if the property has a fair market value

of $50,000 or more. A listing under clause (3) or (4) must indicate the street address and the

municipality or the section, township, range and approximate acreage, whichever applies, and the

county in which the property is located; and

(5) a listing of any investments, ownership, or interests in property connected with

pari-mutuel horse racing in the United States and Canada, including a racehorse, in which the

Copyright © 2013 by the Office of the Revisor of Statutes, State of Minnesota. All Rights Reserved.
2 MINNESOTA STATUTES 2013 10A.09

individual directly or indirectly holds a partial or full interest or an immediate family member

holds a partial or full interest.

Subd. 6. Supplementary statement. Each individual who is required to file a statement

of economic interest must file a supplementary statement on April 15 of each year that the

individual remains in office if information on the most recently filed statement has changed.

The supplementary statement, if required, must include the amount of each honorarium in

excess of $50 received since the previous statement and the name and address of the source of

the honorarium. The board must maintain a statement of economic interest submitted by an

officeholder in the same file with the statement submitted as a candidate.

Subd. 6a. Place of filing. A public official required to file a statement under this section must

file it with the board. A local official required to file a statement under this section must file it

with the governing body of the official's political subdivision. The governing body must maintain

statements filed with it under this subdivision as public data. If an official position is defined as

both a public official and as a local official of a metropolitan governmental unit under this chapter,

the official must file the statement with the board.

Subd. 7. Late filing. If an individual fails to file a statement of economic interest required by

this section within ten business days after the statement was due, the board may impose a late

filing fee of $5 per day, not to exceed $100, commencing on the 11th day after the statement was

due. The board must send notice by certified mail to any individual who fails to file a statement

within ten business days after the statement was due that the individual may be subject to a civil

penalty for failure to file a statement. An individual who fails to file a statement within seven

days after the certified mail notice was sent by the board is subject to a civil penalty imposed

by the board up to $1,000.

Subd. 8. Failure to file; suspension. A public official, except a member of the legislature or

a constitutional officer, who is required to file a statement of economic interest and fails to do so

by the prescribed deadline must be suspended without pay by the board in the manner prescribed

in the contested case procedures in chapter 14.

Subd. 9. Waivers. Upon written request and for good cause shown, the board may waive

the requirement that an official disclose the address of real property that constitutes a secondary

residence of the official.

History: 1974 c 470 s 9; 1975 c 271 s 6; 1976 c 307 s 11; 1978 c 463 s 35-37; 1982 c 424

s 130; 1983 c 214 s 30,31; 1983 c 305 s 3,4; 1986 c 444; 1989 c 334 art 6 s 2; 1990 c 608 art

2 s 2-4; 1991 c 233 s 109; 1997 c 202 art 2 s 6; 1999 c 220 s 12,50; 2002 c 363 s 10; 2010

c 327 s 10; 2013 c 138 art 2 s 5,6

Copyright © 2013 by the Office of the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 MINNESOTA STATUTES 2013 15.0575

15.0575 ADMINISTRATIVE BOARDS AND AGENCIES.

Subd. 3. Compensation. (a) Members of the boards may be compensated at the rate of

$55 a day spent on board activities, when authorized by the board, plus expenses in the same

manner and amount as authorized by the commissioner's plan adopted under section 43A.18,

subdivision 2. Members who, as a result of time spent attending board meetings, incur child care

expenses that would not otherwise have been incurred, may be reimbursed for those expenses

upon board authorization.

(b) Members who are state employees or employees of the political subdivisions of the state

must not receive the daily payment for activities that occur during working hours for which they

are compensated by the state or political subdivision. However, a state or political subdivision

employee may receive the daily payment if the employee uses vacation time or compensatory

time accumulated in accordance with a collective bargaining agreement or compensation plan for

board activities. Members who are state employees or employees of the political subdivisions

of the state may receive the expenses provided for in this subdivision unless the expenses are

reimbursed by another source. Members who are state employees or employees of political

subdivisions of the state may be reimbursed for child care expenses only for time spent on board

activities that are outside their working hours.

(c) Each board must adopt internal standards prescribing what constitutes a day spent on

board activities for purposes of making daily payments under this subdivision.

Copyright © 2013 by the Office of the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 MINNESOTA STATUTES 2013 15.0597

15.0597 APPOINTMENTS TO MULTIMEMBER AGENCIES.

Subdivision 1. Definitions. As used in this section, the following terms shall have the

meanings given them.

(a) "Agency" means (1) a state board, commission, council, committee, authority, task

force, including an advisory task force created under section 15.014 or 15.0593, a group created

by executive order of the governor, or other similar multimember agency created by law and

having statewide jurisdiction; and (2) the Metropolitan Council, metropolitan agency, Capitol

Area Architectural and Planning Board, and any agency with a regional jurisdiction created in

this state pursuant to an interstate compact.

(b) "Vacancy" or "vacant agency position" means (1) a vacancy in an existing agency, or (2) a

new, unfilled agency position. Vacancy includes a position that is to be filled through appointment

of a nonlegislator by a legislator or group of legislators; vacancy does not mean (1) a vacant

position on an agency composed exclusively of persons employed by a political subdivision or

another agency, or (2) a vacancy to be filled by a person required to have a specific title or position.

(c) "Secretary" means the secretary of state.

Copyright © 2013 by the Office of the Revisor of Statutes, State of Minnesota. All Rights Reserved.
2 MINNESOTA STATUTES 2013 15.0597

Subd. 4. Notice of vacancies. The chair of an existing agency, shall notify the secretary by

electronic means of a vacancy scheduled to occur in the agency as a result of the expiration of

membership terms at least 45 days before the vacancy occurs. The chair of an existing agency

shall give electronic notification to the secretary of each vacancy occurring as a result of newly

created agency positions and of every other vacancy occurring for any reason other than the

expiration of membership terms as soon as possible upon learning of the vacancy and in any case

within 15 days after the occurrence of the vacancy. The appointing authority for newly created

agencies shall give electronic notification to the secretary of all vacancies in the new agency

within 15 days after the creation of the agency. The secretary may require the submission of

notices required by this subdivision by electronic means. The secretary shall publish monthly

on the Web site of the secretary of state a list of all vacancies of which the secretary has been

so notified. Only one notice of a vacancy shall be so published, unless the appointing authority

rejects all applicants and requests the secretary to republish the notice of vacancy. One copy of

the listing shall be made available at the office of the secretary to any interested person. The

secretary shall distribute by mail or electronic means copies of the listings to requesting persons.

The listing for all vacancies scheduled to occur in the month of January shall be published on

the Web site of the secretary of state together with the compilation of agency data required to be

published pursuant to subdivision 3.

If a vacancy occurs within three months after an appointment is made to fill a regularly

scheduled vacancy, the appointing authority may, upon notification by electronic means to the

secretary, fill the vacancy by appointment from the list of persons submitting applications to

fill the regularly scheduled vacancy.

Subd. 5. Nominations for vacancies. Any person may make a self-nomination for

appointment to an agency vacancy by completing an application on a form prepared and

distributed by the secretary. The secretary may provide for the submission of the application by

electronic means. Any person or group of persons may, on the prescribed application form,

nominate another person to be appointed to a vacancy so long as the person so nominated consents

on the application form to the nomination. The application form shall specify the nominee's name,

mailing address, electronic mail address, telephone number, preferred agency position sought, a

statement that the nominee satisfies any legally prescribed qualifications, a statement whether

the applicant has ever been convicted of a felony, and any other information the nominating

person feels would be helpful to the appointing authority. The nominating person has the option

of indicating the nominee's sex, political party preference or lack thereof, status with regard to

disability, race, and national origin on the application form. The application form shall make the

option known. If a person submits an application at the suggestion of an appointing authority,

the person shall so indicate on the application form. Twenty-one days after publication of a

vacancy on the Web site of the secretary of state pursuant to subdivision 4, the secretary shall

Copyright © 2013 by the Office of the Revisor of Statutes, State of Minnesota. All Rights Reserved.
3 MINNESOTA STATUTES 2013 15.0597

submit electronic copies of all applications received for a position to the appointing authority

charged with filling the vacancy. If no applications have been received by the secretary for the

vacant position by the date when electronic copies must be submitted to the appointing authority,

the secretary shall so inform the appointing authority. Applications received by the secretary shall

be deemed to have expired one year after receipt of the application. An application for a particular

agency position shall be deemed to be an application for all vacancies in that agency occurring

prior to the expiration of the application and shall be public information.

Subd. 6. Appointments. In making an appointment to a vacant agency position, the

appointing authority shall consider applications for positions in that agency supplied by the

secretary. No appointing authority may appoint someone to a vacant agency position until (1)

ten days after receipt of the applications for positions in that agency from the secretary or (2)

receipt of notice from the secretary that no applications have been received for vacant positions

in that agency. At least five days before the date of appointment, the appointing authority shall

issue a public announcement and inform the secretary by electronic means of the name of the

person the appointing authority intends to appoint to fill the agency vacancy and the expiration

date of that person's term. If the appointing authority intends to appoint a person other than one

for whom an application was submitted pursuant to this section, the appointing authority shall

complete an application form on behalf of the appointee and submit it to the secretary indicating

on the application that it is submitted by the appointing authority.

History: 1978 c 592 s 1,2; 1980 c 614 s 42-46; 1983 c 305 s 7; 1984 c 654 art 3 s 14;

1Sp1985 c 13 s 89; 1986 c 444; 1990 c 426 art 1 s 6; 1992 c 513 art 3 s 21; 1993 c 80 s 3-5; 1994

c 480 s 1-4; 1994 c 628 art 3 s 3; 1997 c 192 s 3,4; 1997 c 202 art 2 s 9,10; 2004 c 293 art 2 s 2-7

Copyright © 2013 by the Office of the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 MINNESOTA STATUTES 2013 116.02

116.02 POLLUTION CONTROL AGENCY, CREATION AND POWERS.

Subdivision 1. Creation. A pollution control agency, designated as the Minnesota Pollution

Control Agency, is hereby created. The agency shall consist of the commissioner and eight

members appointed by the governor, by and with the advice and consent of the senate. One

of such members shall be a person knowledgeable in the field of agriculture and one shall be

representative of organized labor.

Subd. 3. Membership. The membership of the Pollution Control Agency shall be broadly

representative of the skills and experience necessary to effectuate the policy of sections 116.01 to

116.075, except that no member other than the commissioner shall be an officer or employee of

the state or federal government. Only two members at one time may be officials or employees

of a municipality or any governmental subdivision, but neither may be a member ex officio or

otherwise on the management board of a municipal sanitary sewage disposal system.

Copyright © 2013 by the Office of the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7000.0300

7000.0300 DUTY OF CANDOR.

In all formal or informal negotiations, communications, proceedings, and other

dealings between any person and any member, employee, or agent of the board or

commissioner, it shall be the duty of each person and each member, employee, or agent of

the board or commissioner to act in good faith and with complete truthfulness, accuracy,

disclosure, and candor.

Statutory Authority: MS s 116.07

History: 8 SR 243; 28 SR 1249

Published Electronically: April 20, 2004

Copyright ©2004 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
1 REVISOR 7000.9000

7000.9000 CONFLICT OF INTEREST.

Subpart 1. Conflict of interest. Any member of the board who has a direct and

substantial financial or employment interest relating to any matter before the board, which

interest is reasonably likely to affect the impartiality or judgment of the board member in

the matter, shall make known this interest and shall refrain from participating in or voting

upon the matter.

Subp. 2. Outside employment. No employee or agent of the agency, including the

commissioner, shall engage in any outside employment or other conduct that is likely to

affect adversely the effectiveness or efficiency of any functions or duties performed for the

agency.

Subp. 3. Post board representation. For one year after leaving the board, a board

member must not represent an interested person or party before the board or appear on

behalf of an interested person or party regarding a matter that previously was identified as

an item on any board meeting agenda.

Statutory Authority: MS s 14.06; 116.07

History: L 1987 c 186 s 15; 19 SR 1310; 28 SR 1249

Published Electronically: April 20, 2004

Copyright ©2004 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
Attachment 2: Public Notice 
Minnesota Pollution Control Agency 

Environmental Analysis and Outcomes Division 

Public Notice on State Implementation Plan Revision 

NOTICE IS HEREBY GIVEN that the Commissioner of the Minnesota Pollution Control Agency (MPCA) has 

determined that a State Implementation Plan (SIP) revision must be submitted to meet Minnesota’s requirements under 

sections 110(a)(1), 110(a)(2), and 128 of the Clean Air Act (the Act). The draft SIP revision is now available for public 

comment. 

Background. Sections 110(a)(1) and 110(a)(2) of the Act require that states prepare and submit to the U. S. 

Environmental Protection Agency (EPA) an “infrastructure” SIP within three years of the EPA’s issuance of a new 

National Ambient Air Quality Standard (NAAQS) to demonstrate their continued ability to implement, maintain, and 

enforce the revised standards. This infrastructure SIP submission addresses the 2012 particulate matter of less than 2.5 

micrometers in diameter (PM2.5) NAAQS, the 2010 nitrogen dioxide (NO2) NAAQS, the 2010 sulfur dioxide (SO2) NAAQS, 

and the 2008 ozone NAAQS. 

Section 128 of the Act mandates that members of boards governing state agencies that implement the Act 

represent the public interest and disclose any conflict of interest. The EPA requested that the MPCA demonstrate that 

its board fulfills those requirements. 

At the request of the EPA, the MPCA is also submitting rules relating to permitting fees which have not yet been 

incorporated into the SIP. 

Purpose of the SIP revision. The purpose of this SIP revision is to fulfill Minnesota’s responsibility under the Act 

to demonstrate its ability to implement, maintain, and enforce the revised NAAQS cited above. This includes information 

about Minnesota’s air quality programs such as monitoring, permitting, and modeling. Most of these requirements have 

already been submitted as part of the SIP. 

However, Minnesota is submitting certain additional rules and statutes into the SIP to meet the Act’s 

requirements. The newly submitted rules and statutes include: rules relating to permit fees in Minn. R. ch. 7002 and 

rules and statutes related to the MPCA Citizens’ Board to demonstrate that Minnesota adequately fulfills the Act’s 

requirements for governing boards under section 128 of the Act. Section 128 has two requirements: 

1. that any board that approves permits or enforcement orders related to the Act have a majority of members 

who represent the public interest and do not receive any significant portion of their income from persons 

subject to the same permits and enforcement orders; and 

2. that any potential conflicts of interest by members of such a board or the head of the agency be adequately 

disclosed. 

The MPCA will consider changing the contents of the proposed SIP revision based on comments received during 

the comment period. Following the end of the comment period, the Commissioner will decide whether to submit the 

proposed SIP revision to the EPA unless, as provided by Minn. Stat. § 116.02, the MPCA Citizens’ Board makes this 

decision. 

MPCA contact person. The MPCA contact person is Amanda Jarrett Smith. Written comments, requests, and 

petitions should be mailed to: Amanda Jarrett Smith, Minnesota Pollution Control Agency, Environmental Analysis and 

Outcomes Division, 520 Lafayette Road North, St. Paul, Minnesota 55155-4194; telephone: 651-757-2486 or toll free 

1-800-657-3864; fax: 651-297-8324; and email: amanda.smith@state.mn.us. TTY users may call the MPCA at TTY 651-

252-5332 or 1-800-657-3864. 

Availability of SIP. A copy of the proposed SIP revision is available on the MPCA’s web site at 

http://www.pca.state.mn.us/yrwc6a9. A copy of the proposed SIP revision is also available upon request by contacting 

Amanda Jarrett Smith at 651-757-2486 or amanda.smith@state.mn.us, or can be mailed to any interested person upon 
the MPCA’s receipt of a written request. Additional materials relating to the SIP revision are available for inspection by 

appointment at the MPCA, 520 Lafayette Road North, St. Paul, Minnesota 55155-4194, between the hours of 8:00 a.m. 

and 4:30 p.m., Monday through Friday. To examine these materials, or for more information, please contact 

Amanda Jarrett Smith. All MPCA offices may be reached by calling 1-800-657-3864. 

Public comment period and potential public meeting. Your comments must be in writing and received by 

Amanda Jarrett Smith by 4:30 p.m. on Friday, May 2, 2014. Written comments may be submitted to her at the address, 

facsimile number, or e-mail address listed above. 

As this SIP revision does not include any substantive changes to the Minnesota’s SIP, a public information 

meeting will only be held if one is requested by 4:30 p.m. on Friday, May 2, 2014. If such a meeting is requested, it will 

be held on Friday, May 9, 2014 at 10 a.m. at the MPCA St. Paul Office, 520 Lafayette Road North, St. Paul, Minnesota 

55155-4194. To find out if a public information meeting will be held, please contact Amanda Jarrett Smith at 

651-757-2486 or amanda.smith@state.mn.us after Friday, May 2, 2014 at 4:30 p.m. The public information meeting, if 

one is requested, will provide information, receive public input, and answer questions about the proposed SIP revision. If 

the public information meeting is held, additional written comments on the proposed documents will be accepted until 

4:30pm on Friday, May 23, 2014, following the same guidelines described above. 

Request to have MPCA Citizens’ Board make decision. You have the right to submit a petition to the MPCA 

Commissioner asking that the MPCA Citizens’ Board make the decision on submitting the proposed SIP revision to the 

EPA. Your petition must be in writing and must be received by the MPCA contact person listed above by 4:30 p.m. on 

Friday, May 2, 2014. Whether the petition will be granted or denied is at the sole discretion of the MPCA Commissioner. 

The MPCA Citizens’ Board will only make the decision on the proposed SIP revision of the MPCA Commissioner grants 

your petition or if an MPCA Citizens’ Board member makes a timely request to have the decision made by the MPCA 

Citizens’ Board.
 Minnesota

 State Register

 (Published every Monday (Tuesday when Monday is a holiday.)

 

 Proposed, Adopted, Emergency, Expedited, Withdrawn, Vetoed Rules;

 Executive Orders; Appointments; Commissioners’ Orders; Revenue Notices;

 Official Notices; State Grants & Loans; State Contracts;

 Non-State Public Bids, Contracts &Grants

 Monday 31 March 2014

 Volume 38, Number 40

 Pages 1271 - 1298

 Cumulative Rules Index, Volume 38, Issues #1-40
Minnesota State Register

 Judicial Notice Shall Be Taken of Material Published in the Minnesota State Register

 The Minnesota State Register is the official publication of the State of Minnesota’s Executive Branch of government, published weekly

to fulfill the legislative mandate set forth in Minnesota Statutes, Chapter 14, and Minnesota Rules, Chapter 1400. It contains:

 • Proposed Rules • Adopted Rules • Exempt Rules • Expedited Rules • Withdrawn Rules

 • Vetoed Rules • Executive Orders of the Governor • Appointments • Proclamations

 • Commissioners’ Orders • Revenue Notices • Official Notices • State Grants and Loans

 • Contracts for Professional, Technical and Consulting Services • Non-State Public Bids, Contracts and Grants

 Printing Schedule and Submission Deadlines

 PUBLISH Deadline for: all Short Rules, Executive and

 Vol. 38 DATE Commissioner’s Orders, Revenue and Official Notices, Deadline for LONG, Complicated

 Issue (BOLDFACE shows State Grants, Professional-Technical-Consulting Rules (contact the editor to

 Number altered publish date) Contracts, Non-State Bids and Public Contracts negotiate a deadline)

 # 41 Monday 7 April Noon Tuesday 1 April Noon Thursday 27 March

 # 42 Monday 14 April Noon Tuesday 8 April Noon Thursday 3 April

 # 43 Monday 21 April Noon Tuesday 15 April Noon Thursday 10 April

 # 44 Monday 28 April Noon Tuesday 22 April Noon Thursday 17 April

PUBLISHING NOTICES: We need to receive your submission ELECTRONICALLY in Microsoft WORD format. Submit ONE COPY

of your notice via e-mail to: robin.panlener@state.mn.us. State agency submissions must include a “State Register Printing Order” form, and,

with contracts, a “Contract Certification” form. Non-State Agencies should submit ONE COPY in Microsoft WORD, with a letter on your

letterhead stationery requesting publication and date to be published. Costs are $10.20 per tenth of a page (columns are seven inches wide). One

typwritten, double-spaced page = 4/10s of a page in the State Register, or $40.80. About 2-1/2 pages typed, double-spaced, on 8-1/2"x11" paper

= one typeset page in the State Register. Contact editor if you have questions (651) 297-7963, or e-mail: robin.panlener@state.mn.us.

SUBSCRIPTION SERVICES: Copies are available at Minnesota’s Bookstore, 660 Olive Street, St. Paul, MN 55155. Order by phone: Metro

area: (651) 297-3000 Toll free (800) 657-3757. TTY relay service phone number: (800) 627-3529. NO REFUNDS. E-mail subscriptions are

available by contacting (651) 297-8777. Send address changes to Minnesota’s Bookstore, 660 Olive Street, St. Paul, Minnesota 55155.

SEE THE Minnesota State Register free at website: http://www.minnesotasbookstore.com

 • Minnesota State Register: On-line subscription – $180, includes links, index, special section “CONTRACTS & GRANTS,” with

 Sidebar Table of Contents, Early View after 4:30 pm Friday (instead of waiting for early Monday), and it’s sent to you via E-mail.

 • Single issues are available for a limited time: Minnesota State Register $5.00.

 • “Affidavit of Publication” includes a notarized “Affidavit” and a copy of the issue: $15.00.

 • Research Services - will look up, photocopy, and fax or send copies from past issues at $1.00 per page.

 Governor: Mark Dayton (651) 296-3391 Administration Commissioner: Editor: Robin PanLener

 Lieutenant Governor: Yvonne Prettner Solon Spencer R. Cronk (651) 201-2555 (651) 297-7963, robin.panlener@state.mn.us

 (651) 296-3391 Plant Management Division: Assistant editor: John Mikes

 Attorney General: Lori Swanson (651)296-6196 Christopher A. Guevin (651) 201-2350 (651) 297-4616, john.mikes@state.mn.us

 Auditor: Rebecca Otto (651) 296-2551 Minnesota’s Bookstore: Subscriptions Manager: Loretta J. Diaz

 Secretary of State: Mark Ritchie (651) 296-2803 Mary Mikes (651) 297-3979 (651) 297-8777, loretta.diaz@state.mn.us

 Copyright © 2013 Plant Management Division, Department of Administration, State of Minnesota.

 USPS Publication Number: 326-630 (ISSN: 0146-7751)

THE MINNESOTA STATE REGISTER IS PUBLISHED by Plant Management Division, Department of Administration, State of Minnesota, pursuant to Minnesota Statutes

§ 14.46 and is available on-line at website: http://www.comm.media.state.mn.us/bookstore/mnbookstore

Minnesota Legislative Information

 Senate Public Information Office (651) 296-0504 House Public Information Services (651) 296-2146

 State Capitol, Room 231, St. Paul, MN 55155 State Office Building, Room 175,

 Website: www.senate.mn 100 Rev. Dr. Martin Luther King Jr Blvd., St. Paul, MN 55155

 Website: www.house.leg.state.mn.us/hinfo/hinfo.htm

 Minnesota State Court System

 Court Information Office (651) 296-6043

 MN Judicial Center, Rm. 135,

 25 Rev. Dr. Martin Luther King Jr Blvd.,

 St. Paul, MN 55155 Website: www.mncourts.gov

Federal Register

Office of the Federal Register (202) 512-1530; or (888) 293-6498

U.S. Government Printing Office – Fax: (202) 512-1262

Website: http://www.access.gpo.gov/su_docs/aces/aces140.html
Contents

Other Helpful Resources:

 For additional contracts go to:

 http://www.mmd.admin.state.mn.us/solicitations.htm

 Contract information is available from the Materials Management (MMD)

 Helpline (651) 296-2600, or Web site: www.mmd.admin.state.mn.us

 For additional grants go to the Office of Grants Management (OGM) at:

 http://www.grants.state.mn.us/public/

 Revisor of Statutes - RULES STATUS:

 https://www.revisor.mn.gov/rules/rule_search.php

 Statewide Integrated Financial Tools (SWIFT) Supplier Portal:

 http://supplier.swift.state.mn.us

 Contract information is available from the Materials Management (MMD)

 Helpline (651) 296-2600, or Web site: www.mmd.admin.state.mn.us

 Minnesota State Register information is available from Minnesota’s

 Bookstore (651) 297-3000, or (800) 657-3757, Web site:

 www.minnesotasbookstore.com

Culumative Minnesota Rules Index:

 Amendments & Additions

Vol. 38, #1-40: Monday 1 July 2013 - Monday 31 March 2014...................... 1274

Expedited Emergency Rules

Natural Resources Department (DNR)

Adopted Expedited Emergency Game and Fish Rules:

 Special Spring Turkey Hunts.................................................................................... 1277

Exempt Rules

Nursing Board

Adopted Exempt Permanent Rules Relating to

 Approved Nursing Education Programs................................................................ 1279

Official Notices

Agricultural Society, Minnesota State (State Fair)

Board of Managers Meeting Notice for 4 April 2014............................................ 1280

Comprehensive Health Association (MCHA)

Public Policy Committee Meeting 1 April 2014.................................................... 1281

Physical Therapy Department

Request for Comments on Possible Amendments to Rules Governing

 Physical Therapists and Physical Therapist Assistants................................... 1281

Pollution Control Agency (MPCA)

Environmental Analysis and Outcomes Division:

Proposed State Implementation Plan Revision....................................................... 1282

Industrial Division:

Intent to Reissue the National Pollutant Discharge Elimination

 System / State Disposal System Multi-Sector General Permit for

 Industrial Stormwater Activity.................................................................................. 1283

Transportation Department (Mn/DOT)

Notice of Debarment........................................................................................................ 1285

State Grants & Loans

Mediation Services Bureau (BMS)

Applications Accepted for Funding Under the Minnesota Area

 Labor-Management Committee Program for Fiscal Year 2015 Grants............ 1286

State Contracts

Administration Department (Admin)

Human Resources Division:

Availability of Contract for Development and Implementation

 of Ergonomic Training and Stretching Program................................................... 1287

Minnesota Multistate Contracting Alliance for Pharmacy (MMCAP):

Request for Proposals for Pharmaceutical

 Wholesaler Distribution Services............................................................................ 1287

State Designer Selection Board Project No. 14-02:

Availability of Request for Proposal for Designer Selection for

 Restoration of Building 7-1, Camp Ripley, Little Falls, Minnesota............... 1288

Arts Board, Minnesota State

 Minnesota Percent for Art in Public Places:

North Hennepin Community College

 Bioscience and Health Careers Center:

Request for Proposals for Public Art.......................................................................... 1288

Colleges and Universities, Minnesota State (MnSCU)

Central Lakes College and MnSCU:

Request for Proposal for Positioning Assessment and

 Brand Strategy Development for the Agricultural Center

 of Excellence-North/Central Minnesota (COE).................................................... 1289

(Cite 38 SR 1273) Minnesota State Register, Monday 21 March 2014 Page 1273

Colleges and Universities, Minnesota State (MnSCU)

North Hennepin Community College:

Request for Proposal for Health Services Education

 Recording and Management Solution..................................................................... 1289

North Hennepin Community College:

Advertisement for Bids for Complete Installation of a

 New Fire Protection Sprinkler System, Ceiling Replacement

 and Lighting Replacement.......................................................................................... 1290

Explore Minnesota Tourism

Availability of Contract for Mexico Tourism Marketing Representation.......... 1290

Human Services Department (DHS)

Aging and Adult Services Division:

Request for Proposals to Conduct the Gaps Analysis Surveys

 with the Counties and Collect Stakeholder Input for the 2014

 Home and Community-Based Services Gaps Analysis Study........................... 1291

Transportation Department (Mn/DOT)

Engineering Services Division:

Contracting Opportunities for a Variety of Highway Related

 Technical Activities (“Consultant Pre-Qualification Program”).................... 1292

Engineering Services Division:

Professional/Technical Contract Opportunities and

 Taxpayers’ Transportation Accountability Act Notices.................................... 1292

Non-State Public Bids,

 Contracts & Grants

City of Minneapolis

Historic Bridge Truss Spans Available for Sale, Relocation,

 Rehabilitation, and Reuse.......................................................................................... 1293

Dakota Scott Workforce Investment Board

 and Dakota County

Request for Proposal for Employment Services....................................................... 1294

Metropolitan Airports Commission (MAC)

Minneapolis-Saint Paul International Airport:

Call for Bids for 2014 Terminal 1-Lindbergh GTC Leaks Mitigation............... 1294

Minneapolis-Saint Paul International Airport:

Call for Bids for 2014 Airside Bituminous/Electrical Construction................ 1295

Minnesota Valley Transit Authority (MVTA)

Request for Proposals to Provide Transit Operating

 and Maintenance Services.......................................................................................... 1295

Minnesota’s Bookstore....................................................... 1296
comments received in response to the rules after they are proposed. If you submitted comments during the development of the rules and

you want to ensure that the Administrative Law Judge reviews the comments, you should resubmit the comments after the rules are

formally proposed.

Dated: March 14, 2014 Signed by Stephanie Lunning, PT, Executive Director

 Minnesota Board of Physical Therapy

Minnesota Pollution Control Agency (MPCA)

 Environmental Analysis and Outcomes Division

Notice of Proposed State Implementation Plan Revision

 NOTICE IS HEREBY GIVEN that the Commissioner of the Minnesota Pollution Control Agency (MPCA) has determined that a

State Implementation Plan (SIP) revision must be submitted to meet Minnesota’s requirements under sections 110(a)(1), 110(a)(2), and

128 of the Clean Air Act (the Act). The draft SIP revision is now available for public comment.

 Background. Sections 110(a)(1) and 110(a)(2) of the Act require that states prepare and submit to the U. S. Environmental Protection

Agency (EPA) an “infrastructure” SIP within three years of the EPA’s issuance of a new National Ambient Air Quality Standard (NAAQS)

to demonstrate their continued ability to implement, maintain, and enforce the revised standards. This infrastructure SIP submission

addresses the 2012 particulate matter of less than 2.5 micrometers in diameter (PM2.5) NAAQS, the 2010 nitrogen dioxide (NO2

) NAAQS,

the 2010 sulfur dioxide (SO2

) NAAQS, and the 2008 ozone NAAQS.

 Section 128 of the Act mandates that members of boards governing state agencies that implement the Act represent the public interest

and disclose any conflict of interest. The EPA requested that the MPCA demonstrate that its board fulfills those requirements.

 At the request of the EPA, the MPCA is also submitting rules relating to permitting fees which have not yet been incorporated into the

SIP.

 Purpose of the SIP revision. The purpose of this SIP revision is to fulfill Minnesota’s responsibility under the Act to demonstrate its

ability to implement, maintain, and enforce the revised NAAQS cited above. This includes information about Minnesota’s air quality

programs such as monitoring, permitting, and modeling. Most of these requirements have already been submitted as part of the SIP.

 However, Minnesota is submitting certain additional rules and statutes into the SIP to meet the Act’s requirements. The newly

submitted rules and statutes include: rules relating to permit fees in Minn. R. ch. 7002 and rules and statutes related to the MPCA Citizens’

Board to demonstrate that Minnesota adequately fulfills the Act’s requirements for governing boards under section 128 of the Act. Section

128 has two requirements:

1. that any board that approves permits or enforcement orders related to the Act have a majority of members who represent the

public interest and do not receive any significant portion of their income from persons subject to the same permits and enforcement orders;

and

2. that any potential conflicts of interest by members of such a board or the head of the agency be adequately disclosed.

 The MPCA will consider changing the contents of the proposed SIP revision based on comments received during the comment period.

Following the end of the comment period, the Commissioner will decide whether to submit the proposed SIP revision to the EPA unless,

as provided by Minn. Stat. § 116.02, the MPCA Citizens’ Board makes this decision.

 MPCA contact person. The MPCA contact person is Amanda Jarrett Smith. Written comments, requests, and petitions should be

mailed to:

Amanda Jarrett Smith

Minnesota Pollution Control Agency

Environmental Analysis and Outcomes Division

520 Lafayette Road North

Page 1282 Minnesota State Register, Monday 31 March 2014 (Cite 38 SR 1282)

Official Notices
St. Paul, Minnesota 55155-4194

Telephone: (651) 757-2486 or

Toll free: 1-800-657-3864

Fax: (651) 297-8324

E-mail: amanda.smith@state.mn.us

TTY users may call the MPCA at TTY: (651) 252-5332 or 1-800-657-3864

 Availability of SIP. A copy of the proposed SIP revision is available on the MPCA’s web site at http://www.pca.state.mn.us/yrwc6a9.

A copy of the proposed SIP revision is also available upon request by contacting Amanda Jarrett Smith at (651) 757-2486 or

amanda.smith@state.mn.us, or can be mailed to any interested person upon the MPCA’s receipt of a written request. Additional materials

relating to the SIP revision are available for inspection by appointment at the MPCA, 520 Lafayette Road North, St. Paul, Minnesota

55155-4194, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday. To examine these materials, or for more information,

please contact Amanda Jarrett Smith. All MPCA offices may be reached by calling 1-800-657-3864.

 Public comment period and potential public meeting. Your comments must be in writing and received by

Amanda Jarrett Smith by 4:30 p.m. on Friday, May 2, 2014. Written comments may be submitted to her at the address, facsimile number,

or e-mail address listed above.

 As this SIP revision does not include any substantive changes to the Minnesota’s SIP, a public information meeting will only be held

if one is requested by 4:30 p.m. on Friday, May 2, 2014. If such a meeting is requested, it will be held on Friday, May 9, 2014 at 10 a.m.

at the MPCA St. Paul Office, 520 Lafayette Road North, St. Paul, Minnesota 55155-4194. To find out if a public information meeting will

be held, please contact Amanda Jarrett Smith at (651) 757-2486 or amanda.smith@state.mn.us after Friday, May 2, 2014 at 4:30 p.m.

The public information meeting, if one is requested, will provide information, receive public input, and answer questions about the

proposed SIP revision. If the public information meeting is held, additional written comments on the proposed documents will be accepted

until 4:30pm on Friday, May 23, 2014, following the same guidelines described above.

 Request to have MPCA Citizens’ Board make decision. You have the right to submit a petition to the MPCA Commissioner asking

that the MPCA Citizens’ Board make the decision on submitting the proposed SIP revision to the EPA. Your petition must be in writing

and must be received by the MPCA contact person listed above by 4:30 p.m. on Friday, May 2, 2014. Whether the petition will be granted

or denied is at the sole discretion of the MPCA Commissioner. The MPCA Citizens’ Board will only make the decision on the proposed

SIP revision of the MPCA Commissioner grants your petition or if an MPCA Citizens’ Board member makes a timely request to have the

decision made by the MPCA Citizens’ Board.

Minnesota Pollution Control Agency (MPCA)

 Industrial Division

Notice of Intent to Reissue the National Pollutant Discharge Elimination System/

 State Disposal System Multi-Sector General Permit for Industrial Stormwater

 Activity

 NOTICE IS HEREBY GIVEN that the Minnesota Pollution Control Agency (MPCA) proposes to reissue National Pollutant

Discharge Elimination System (NPDES)/State Disposal System (SDS) General Permit MNR050000, under the provisions of Minnesota

Rules 7001.0210, for discharges of stormwater associated with industrial activity. Comments on the proposed permit are requested from

affected or interested parties. Comments should be submitted in writing in accordance with the provisions of this notice.

 This public notice is for the draft NPDES/SDS Industrial Stormwater Multi-Sector General Permit to discharge stormwater associated

with industrial stormwater activity into waters of the state of Minnesota. This notice and permit are issued under the following authorities:

Section 402, Clean Water Act, as amended; Minnesota Statutes Ch. 115 and 116, as amended; and Minnesota Rules Ch. 7001 and 7090.

 Public Notice Issued On: March 31, 2014

(Cite 38 SR 1283) Minnesota State Register, Monday 31 March 2014 Page 1283

Official Notices
Attachment 3: Comments Received 
50 F Street, NW, Suite 800, Washington, DC 20001 TEL: (202) 675-2380 FAX: (202) 547-6009 www.sierraclub.org

VIA ELECTRONIC MAIL AND U.S. MAIL

Amanda Jarrett Smith 

Environmental Analysis and Outcomes Division 

Minnesota Pollution Control Agency 

520 Lafayette Road North 

St. Paul, Minnesota 55155-4194 

Amanda.smith@state.mn.us 

May 2, 2014 

Re: Minnesota’s Section 110 Infrastructure SIP Requirements for Nitrogen 

Dioxide, Sulfur Dioxide, Ozone, and Particulate Matter of Less than 2.5 

Micrometers in diameter National Ambient Air Quality Standards 

Dear Ms. Smith: 

On behalf of the Sierra Club, its over 14,000 members in Minnesota, and others 

who are adversely impacted by Minnesota’s sources of nitrogen dioxide (“NO2”), sulfur 

dioxide (“SO2”), ozone, and fine particulate matter pollution, we submit the following 

comments on Section 110 Infrastructure State Implementation Plan Requirements for 

Nitrogen Dioxide, Sulfur Dioxide, Ozone, and Particulate Matter of Less than 2.5 

Micrometers in diameter (“PM2.5”) National Ambient Air Quality Standards (“NAAQS”) 

(“Draft I-SIP”). According to MPCA’s Public Notice of State Implementation Plan 

regarding the proposed amendment to the Minnesota I-SIP, written comments will be 

considered if received by 4:30 P.M. on May 2, 2014, via mail, facsimile, or e-mail, 

making this submission timely. 

The Sierra Club North Star Chapter has had a clean air program since 2001, and 

participates in the Minnesota Pollution Control Agency (“MPCA”) and Minnesota 

Environmental Initiative's Clean Air Minnesota program because it is committed to 

ensuring clean, healthy air for all Minnesotans. Air pollution in Minnesota contributes to 

asthma and other respiratory illnesses, heart attacks, emergency room and hospital visits, 

lost days of school and work, and even premature death. While Minnesota in general has 

good air quality, MPCA has highlighted concerns with exceeding national ambient air 

quality standards for ozone and PM2.5, and Sierra Club has researched exceedances 

related to sulfur dioxide in several areas around the state. 
2

Sierra Club appreciates the ongoing commitment MPCA has made to ensure 

Minnesota stays in compliance with all clean air safeguards, and offers these 

recommendations on the Draft I-SIP to help the MPCA achieve that goal: 

1) Include enforceable emission limits to maintain national ambient air quality 

standards; 

2) Use 1-hour averaging times for emission limits for SO2 and NO2, and 24-hour 

averaging time for PM2.5; 

3) Use SO2 modeling to inform emission limits for the SO2 NAAQS; 

4) Require continuous emission monitoring for NO2, ozone, and PM2.5; and 

5) Require additional monitors in disproportionately impacted communities. 

As described further below, these recommendations are within MPCA’s 

responsibility. Minnesota's largest polluters, primarily coal-fired power plants, must be 

held accountable to these clean air safeguards. Failing to impose enforceable emission 

limits on those sources of pollution has real health and environmental costs for 

Minnesotans. For example, for each 1 μg/m3 of PM2.5 daily concentration reduced, the 

state gains an annual economic benefit of $1.6 billion statewide.1 

Sierra Club values and will continue to participate in the voluntary measures that 

Clean Air Minnesota identifies to improve Minnesota's air quality to keep the state’s air 

healthy; however, Sierra Club believes it is also the responsibility of the largest polluters 

in our state to contribute to that effort and Minnesota's I-SIP should reflect that 

expectation by incorporating our recommendations. 

As acknowledged by the MPCA’s public notice, Minnesota must submit an 

Infrastructure State Implementation Plan (“Infrastructure SIP” or “I-SIP”) that addresses 

all of the requirements in sections 110(a)(1) and (2) of the Clean Air Act (“CAA” or 

“Act”) for five distinct NAAQS recently promulgated by the U.S. Environmental 

Protection Agency: (1) the January 22, 2010 one-hour primary NO2 standard; (2) the June 

2, 2010 one-hour primary SO2 standard; (3) the March 27, 2008 eight-hour primary ozone 

standard; (4) the January 15, 2013 primary annual PM2.5 standard; and (5) the January 15, 

2013 primary 24-hour PM2.5 standard. 42 U.S.C. § 7410(a)(1) & (2). As proposed, 

Minnesota’s Draft I-SIP does not satisfy several essential requirements of Section 

110(a)(1) and (2), including requirements to establish enforceable emission limits and to 

address significant contributions to downwind states. The following comments explain 

these deficiencies in greater detail.2

 

1 See Environmental Initiatives, Minnesota’s Clean Air Dialogue Final Report: A Collaborative 

Plan to Reduce Emissions, at 11, available at http://www.environmentalinitiative.org/images/files/MnCAD/*MnCADFinalReport24Apr13.pdf. 

2 A copy of these comments and all exhibits can be found at 

https://app.box.com/s/m7tucpsai96v5v6785du. 
3

I. Background 

A. National Ambient Air Quality Standards 

The primary NAAQS define the levels of air quality that the U.S. Environmental 

Protection Agency (“EPA”) Administrator determines to be necessary to protect public 

health with an adequate margin of safety. See 42 U.S.C. § 7409(b)(1). On January 22, 

2010, EPA promulgated a new one-hour primary NO2 NAAQS, set at a level of 100 parts 

per billion (“ppb”) based on the three-year average of the annual 98th percentile of onehour daily maximum concentrations, as a supplement to the existing annual primary NO2 

NAAQS. See Primary National Ambient Air Quality Standards for Nitrogen Dioxide 

Final Rule, 75 Fed. Reg. 6474 (Feb. 9, 2010) (effective Apr. 12, 2010). EPA set this 

short-term standard to address evidence of a causal connection between short-term 

exposure to NO2 and adverse respiratory effects, including airway hyper-responsiveness, 

airway inflammation, and decreased lung function. 75 Fed. Reg. at 6480. 

Similarly, on June 2, 2010, EPA revised the primary SO2 NAAQS by establishing 

a new one-hour standard at a level of 75 ppb which is met at an ambient air quality 

monitoring site when the 3-year average of the annual 99th percentile of the daily 

maximum one-hour average concentrations is less than or equal to 75 ppb. See Primary 

National Ambient Air Quality Standard for Sulfur Dioxide Final Rule, 75 Fed. Reg. 

35,520 (June 20, 2010), [hereinafter “Final SO2 NAAQS Rule”]. The primary SO2

NAAQS was set at such a level in order to protect public health from the serious threats 

posed by short-term exposure to SO2, including decreased lung function, increased 

respiratory distress such as chest tightness, wheezing, and shortness of breath, and other 

serious indicators of respiratory illness, especially in asthmatics, children, and the elderly. 

See Final SO2 NAAQS Rule at 35,525-26. The health data relied upon by EPA in 

promulgating the new SO2 standard overwhelmingly indicates that increased asthma 

attacks and hospital visits are attributable to short-term concentrations of sulfur 

compounds in the air. Id. 

In 2008, EPA revised the primary ozone standard to 75 ppb of the annual fourthhighest daily maximum eight-hour concentration averaged over 3 years. See National 

Ambient Air Quality Standard for Ozone, 73 Fed. Reg. 16,436 (Mar. 27, 2008). This

revised standard, if properly implemented, will result in improvements in public health 

(including preventing premature deaths) and the environment. When EPA revised the 

ozone standard, EPA recognized it was providing increased protection for public health, 

especially for children, the elderly, and asthmatics. This standard is meant to protect 

“against an array of O3-related adverse health effects that range from decreased lung 

function and increased respiratory symptoms to serious indicators of respiratory 

morbidity including emergency department visits and hospital admissions for respiratory 

causes, and possibly cardiovascular-related morbidity as well as total non-accidental and 

cardiorespiratory mortality.” See id. Further, increased ozone levels may contribute to 

premature death, especially in people with heart and lung disease. Ozone also damages 

vegetation and trees, including forests, parks, and crops. EPA estimates that the 2008 

eight-hour ozone NAAQS has the potential to avoid 260 to 2,000 premature deaths 
4

annually as of 2020. The total benefits in ozone reduction from this standard are 

estimated to save $2 to $17 billion per year. EPA, Fact Sheet: Final Revisions to the 

National Ambient Air Quality Standards for Ozone, at 1-3 (2008), 

http://www.epa.gov/glo/pdfs/2008_03_factsheet.pdf. In fact, 2011 and 2012 ozone 

ambient monitoring data indicate that EPA’s estimates of the health benefits from 

reducing ozone exposure may have been low.3

 

Lastly, on January 15, 2013, EPA revised its standards for fine particles 

(generally referring to particles less than or equal to 2.5 micrometers (μm) in diameter, 

PM2.5). See National Ambient Air Quality Standard for Particulate Matter Final Rule, 78 

Fed. Reg. 3,068 (Jan. 15, 2013). EPA lowered the primary PM2.5 level to 12.0 

micrograms per cubic meter (μg/m3) and retained the 24-hour PM2.5 standard at a level of 

35 μg/m3. Id. at 3,068. Exposure to PM2.5 has been linked to both mortality and 

morbidity from cardiovascular and respiratory diseases. Id. at 3,103. By strengthening 

the PM2.5 standard, EPA is providing “increased protection for children, older adults, 

persons with pre-existing heart and lung disease, and other at-risk populations against an 

array of PM2.5- related adverse health effects that include premature mortality, increased 

hospital admissions and emergency department visits, and development of chronic 

respiratory disease.” Id. at 3,088. In addition to the serious health effects fine particles 

cause, they are also the primary cause of visibility (or haze) in the United States. EPA, 

Particulate Matter: Basic Information (Mar. 18, 2013), 

http://www.epa.gov/airquality/particlepollution/basic.html. The rule will save at least $4 

billion per year starting in 2020 (and up to 9.1 billion) or put another way for every dollar 

invested in pollution controls at least twelve dollars (and up to 171 dollars) in benefits 

will be gained. EPA, Overview of EPA’s Revisions To Air Quality Standards for Particle 

Pollution (Particulate Matter) at 1, http://www.epa.gov/pm/2012/decfsoverview.pdf. 

Due to these and other serious impairments caused by NO2, SO2, ozone, and 

PM2.5 exposure, the Minnesota Pollution Control Agency (“MPCA”) must properly 

implement the NO2, SO2, ozone, and PM2.5 NAAQS through this I-SIP process in order 

to protect public health as required by law. 

B. Implementation of the NAAQS 

The Clean Air Act creates a framework for the “development of cooperative 

Federal, State, regional, and local programs to prevent and control air pollution.” 42 

 

3

 In 2012, much of the country experienced record high temperatures and very high ozone levels. 

However, the 2008 ozone NAAQS benefit analysis was based on 2008 ozone levels and thus did 

not account for the higher ozone levels that were experienced in 2012. Current science indicates 

that temperatures experienced during 2012 will soon become typical due to climate change. If we 

do not reduce greenhouse emissions rapidly and substantially, the hottest summer of the last 20 

years is expected to occur every other year, or even more frequently. See, e.g., “Changes in 

Ecologically Critical Terrestrial Climate Conditions,” Science, 2 Aug. 2013, Vol. 341, no. 6145, 

486-492. Therefore, the benefits analysis likely underestimated the ozone reductions the 2008 

ozone NAAQS will require and consequently the benefit the standard will provide.
5

U.S.C. § 7401(a)(4). Pursuant to section 109(b)(1) of the Act, EPA has established 

primary NAAQS for six criteria air pollutants, “the attainment and maintenance of which 

. . . are requisite to protect the public health.” Id. § 7409(b)(1). States have “primary 

responsibility” for assuring air quality within the state. Id. § 7407(a). Following 

promulgation of a NAAQS, the Act requires that a state shall “adopt and submit to the 

Administrator . . . a plan which provides for implementation, maintenance, and 

enforcement of such primary [NAAQS].” Id. § 7410(a)(1). For attainment and 

unclassifiable areas, section 110(a)(2)(A) requires that these plans (which EPA refers to 

as Infrastructure SIPs or I-SIPs) “include enforceable emission limitations . . . as well as 

schedules and timetables for compliance, as may be necessary or appropriate to meet the 

applicable requirements” of the Clean Air Act, including the requirement to maintain the 

NAAQS. 42 U.S.C. §§ 7410(a)(2)(A), 7410(a)(1); Conn. Fund for Env’t, Inc. v. EPA, 

696 F.2d 169, 172 (2d Cir. 1982) (CAA requires that SIPs contain “measures necessary 

to ensure the attainment and maintenance of NAAQS”); Mont. Sulphur & Chem. Co. v. 

EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (“The Clean Air Act directs states to develop 

implementation plans—SIPs—that ‘assure’ attainment and maintenance of national 

ambient air quality standards (“NAAQS”) through enforceable emission limitations.”) 

(citing 42 U.S.C. §§ 7407(a), 7410(a)(2)(A)); Hall v. EPA, 273 F.3d 1146, 1153 (9th Cir. 

2001) (“Each State must submit a [SIP] that specif[ies] the manner in which [NAAQS] 

will be achieved and maintained within each air quality control region in the State”) 

(internal citations omitted); see also EPA, “Sulfur Dioxide Implementation—Programs 

and Requirements for Reducing Sulfur Dioxide,” available at

http://www.epa.gov/airquality/sulfurdioxide/implement.html. 

EPA may approve an Infrastructure SIP only if it meets the requirements of 

section 110(a)(2) of the Act. See 42 U.S.C. § 7410(a)(2)(A)-(M). The state bears the 

burden of demonstrating that its SIP submission satisfies the standards of 

section 110(a)(2). Mich. Dep’t of Envtl. Quality v. Browner, 230 F.3d 181, 183, 185 (6th 

Cir. 2000) (affirming EPA’s rejection of a SIP proposal where the state “failed to offer 

evidence that [the] proposed rules will not interfere with the attainment and maintenance 

of the NAAQS.”). For a plan to be adequate, it “must demonstrate that the measures, 

rules, and regulations contained in it are adequate to provide for the timely attainment 

and maintenance of the national standard that it implements.” 40 C.F.R. § 51.112(a). 

i. The Plain Language and Legislative History of the Clean Air Act 

Require that Infrastructure SIPs Must Impose Emission Limits 

Adequate to Prevent NAAQS Exceedances in Areas Not Designated 

Nonattainment. 

The Clean Air Act, on its face, requires I-SIPs to be adequate to prevent 

exceedances of the NAAQS. Following promulgation of a NAAQS, a state must “adopt 

and submit to the Administrator . . . a plan which provides for implementation, 

maintenance, and enforcement of such [NAAQS].” 42 U.S.C. § 7410(a)(1). Pursuant to 

section 110(a)(2)(A), this I-SIP must “include enforceable emission limitations . . . as 

well as schedules and timetables for compliance, as may be necessary or appropriate to 

meet the applicable requirements” of the Clean Air Act (which include the requirement to 
6

maintain compliance with the NAAQS). Id. § 7410(a)(2)(A) (emphasis added). As 

defined by the Act, the term “emission limitation” means “a requirement established by 

the State or the Administrator which limits the quantity, rate, or concentration of 

emissions of air pollutants on a continuous basis, including any requirement relating to 

the operation or maintenance of a source to assure continuous emission reduction, and 

any design, equipment, work practice or operational standard promulgated under this 

chapter.” Id. § 7602(k). Thus, the plain language of section 110(a)(2)(A) requires that ISIPs include enforceable emission limits on sources that are sufficient to ensure 

maintenance of the NAAQS. 

The legislative history of the Clean Air Act supports this interpretation. As the 

Senate Committee Report accompanying the 1970 Clean Air Act explained, the Act 

“would establish certain tools as potential parts of an implementation plan and would 

require that emission requirements be established by each State for sources of air 

pollution agents or combinations of such agents in such region and that these emission 

requirements be monitored and enforceable.” Sen. Cmte. on Pub. Works Rpt. at 12 (Sept. 

17, 1970) (emphasis added), attached hereto as Ex. 1. This was reaffirmed in the 

subsequent Senate Conference Report, which stated that: “In order to implement the 

national ambient air quality standards, these [state implementation] plans must provide 

for emission limitations on all services in the region covered by the plan, together with 

schedules and timetables of compliance, systems for monitoring both ambient air and 

emissions from individual sources, and adequate enforcement authority.” Sen. Conf. 

Rpt., 116 Cong. Rec. 42,381, 42,384 (Dec. 18, 1970) (emphasis added), attached hereto 

as Ex. 2.4

ii. EPA Regulations Implementing the Clean Air Act Require That 

Infrastructure SIPs Must Impose Emission Limits Adequate to 

Prohibit NAAQS Exceedances in Areas Not Designated 

Nonattainment. 

EPA regulations implementing section 110(a)(2) also require that SIPs must 

contain emission limits that ensure the NAAQS is achieved. Pursuant to these 

regulations, in order for a SIP to be approved by EPA, it “must demonstrate that the 

 

4 Although the language of current section 110(a)(2)(A) was originally found in section 

110(a)(2)(B), the substance has remained true to the statements found in the Senate Committee 

Reports. There were only two substantive changes between 1970 and the present. First, the 

addition of former section 172(c)’s requirement that SIPs’ emission limitations, schedules, and 

timetables be “enforceable.” See Rpt. of the Senate Cmte. on Envt. and Pub. Works 

accompanying the Clean Air Act Amendments of 1989 at 20 (Dec. 20, 1989) (explaining that 

“Paragraph (1) of rewritten section 110(c) combines and streamlines existing section 110(a)(2)(b) 

and the enforceability requirements of section 172(c) of current law”), attached as Ex. 3; see also 

42 U.S.C. § 7502(c) (section 172(c)) (requiring that a SIP revision submitted before July 1, 1982 

pursuant to a demonstration under subsection (a)(2) “shall contain enforceable measures to assure 

attainment of the applicable standard not later than December 1, 1987”). Second, the clarification 

in the 1990 Clean Air Act Amendments that the “means[] or techniques” for meeting the 

requirements of the Act included “economic incentives such as fees, marketable permits, and 

auctions of emissions rights.” 42 U.S.C § 7410(a)(2)(A).
7

measures, rules, and regulations contained in it are adequate to provide for the timely 

attainment and maintenance of the national standard that it implements.” 40 C.F.R. § 

51.112(a). As the regulation clearly states, all SIPs must contain emission limits that 

adequately ensure the NAAQS is achieved. Id. Although these regulations were 

developed before the Clean Air Act was amended to separate Infrastructure SIPs from 

nonattainment SIPs—a process that began with the 1977 amendments and was completed 

by the 1990 amendments—the regulations nonetheless apply to I-SIPs. EPA has not 

changed the regulation since 1990, and in the preamble to the final rule promulgating 40 

C.F.R. § 51.112, EPA expressly identifies that its new regulations were not implementing 

Subpart D, the new nonattainment provisions of the Act. See Air Quality Implementation 

Plans; Restructuring SIP Preparation Regulations, 51 Fed. Reg. 40,656, 40,656 (Nov. 7, 

1986) (“It is beyond the scope of th[is] rulemaking to address the provisions of Part D of 

the Act . . . .”). Consequently, EPA intended 40 C.F.R. § 51.112 to apply to I-SIPs. 

Thus, it is clear that I-SIPs must contain “measures, rules, and regulations” sufficient to 

ensure maintenance of the NAAQS. 

iii. Prior EPA Interpretations of the Act Require that Infrastructure 

SIPs Impose Emission Limits Adequate to Prohibit NAAQS 

Exceedances in Areas Not Designated Nonattainment. 

EPA has relied on section 110(a)(2)(A) and 40 C.F.R. § 51.112 on multiple 

occasions to reject Infrastructure SIPs that did not contain specific emissions limits 

sufficient to demonstrate attainment and maintenance of the NAAQS. For example, in 

March 2006, EPA disapproved Missouri’s attempt to revise the SO2 emission limits in its 

I-SIP for two power plants because the new emission limits would not ensure 

maintenance of the short-term sulfur dioxide NAAQS. See Approval and Promulgation 

of Implementation Plans; State of Missouri, 71 Fed. Reg. 12,623, 12,624 (Mar. 13, 2006). 

In so doing, EPA explained that “Section 110(a)(2)(A) of the [Act] requires, in part, that 

the [state implementation] plan include emission limitations to meet the requirements of 

the Act, including the requirement in section 110(a)(1) that the plan must be adequate to 

attain and maintain ambient air quality standards.” Id. EPA further explained that “40 

C.F.R. 51.112 requires that the plan demonstrate that rules contained in the SIP are 

adequate to attain the ambient air quality standards.” Id. In the case of Missouri’s 

proposed I-SIP, EPA expressed concern that the SO2 emission rates for the two power 

plants in question were “not protective of the short-term sulfur dioxide NAAQS” 

because, while Missouri had lowered the emission rates for the facilities, it had 

dramatically increased the averaging times (from a 3-hour average to an annual average) 

without providing “a demonstration, as required by the [Clean Air Act] and EPA 

regulations, that the [sulfur dioxide national ambient air quality] standards, and 

particularly the three-hour and the twenty-four hour standards, can be protected by an 

annual emission limit.” Id. 

More recently, in December 2013, EPA rejected a revision to Indiana’s sulfur 

dioxide I-SIP pursuant to 40 C.F.R. § 51.112, because Indiana failed to demonstrate that 

the I-SIP, as revised, was sufficient to ensure maintenance of the sulfur dioxide NAAQS. 

See Approval of Air Quality Implementation Plans; Indiana; Disapproval of State 
8

Implementation Plan Revision for ArcelorMittal Burns Harbor; Final Rule, 78 Fed. Reg. 

78,720, 78,721 (Dec. 27, 2013). Indiana had submitted a request to EPA to revise its 

sulfur dioxide SIP for the ArcelorMittal Burns Harbor facility to remove the SO2

emission limit for the blast furnace flare at the facility. Id. In the proposed disapproval, 

EPA explained that “[u]nder 40 C.F.R. 51.112(a), each SIP must demonstrate that the 

measures, rules, and regulations it contains are adequate to provide for the timely 

attainment and maintenance of the NAAQS.” See Approval of Air Quality 

Implementation Plans; Indiana; Disapproval of State Implementation Plan Revision for 

ArcelorMittal Burns Harbor; Proposed Rule, 78 Fed. Reg. 17,157, 17,158 (Mar. 20, 

2013). EPA rejected the proposed amendment because Indiana did not demonstrate that 

existing emission limit for the ArcelorMittal blast furnace gas flare was “redundant, 

unnecessary, or that its removal would not result in or allow an increase in actual SO2

emissions,” and, consequently, that removal of the limit would not “affect the validity of 

the emission rates used in the existing attainment demonstration, thus undermining the 

SIP’s ability to ensure protection of the SO2 NAAQS.” Id. at 17,159; see also 78 Fed. 

Reg. at 78,721. 

In addition, while EPA’s recent Infrastructure SIP guidance purported to postpone 

certain I-SIP start-up, shutdown, and malfunction (“SSM”) requirements, that guidance 

does not authorize postponement of any other I-SIP requirement.5

 See U.S. EPA, 

Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air 

Act Section 110(a)(1) and 110(a)(2), at 19-20 (Sept. 13, 2013) [hereinafter “EPA I-SIP 

Guidance”]. This is simply a further indication that the CAA requires I-SIPs to include 

emission limits adequate to ensure attainment of the NAAQS and that the imposition of 

such limits may not be delayed. 

iv. Supreme and Appellate Court Opinions Hold that Infrastructure 

SIPs Must Impose Emission Limits Adequate to Prohibit NAAQS 

Exceedances in Areas not Designated Nonattainment. 

Since the inception of the modern Clean Air Act in 1970, courts have interpreted 

the language presently found in section 110(a)(2)(A) to require that SIPs contain 

enforceable emission limits sufficient to prevent exceedances of the NAAQS. In Train v. 

NRDC, a seminal case on SIP approval requirements, the Supreme Court explained that: 

In complying with this requirement [that a SIP provide for attainment and 

maintenance of the NAAQS] a State’s plan must include ‘emission 

limitations,’ which are regulations of the composition of substances 

emitted into the ambient air from such sources as power plants, service 

stations, and the like. They are the specific rules to which operators of 

pollution sources are subject, and which if enforced should result in 

ambient air which meets the national standards. 

 

5 Sierra Club disagrees with EPA’s apparent postponement of those same SSM requirements; 

such postponement is unsupported by the CAA. 
9

421 U.S. 60, 78 (1975); see also id. at 67 (citing language from then-current section 

110(a)(2)(B) now found in section 110(a)(2)(A)). 

Courts of appeals have followed this holding without exception. For example, in 

Pennsylvania Department of Environmental Resources v. EPA, the Third Circuit stated 

that the Clean Air Act “directs the EPA to withhold approval from a state implementation 

plan if the ‘maintenance of [the] standard’ cannot be assured.” 932 F.2d 269, 272 (3rd 

Cir. 1991).6 The court observed that the “need to maintain the Clean Air Act standards 

once they are reached is well-recognized by the Courts.” Id. Other courts have provided 

similar analyses. In Mision Industrial, Inc. v. EPA, for example, the First Circuit 

explained that, “[b]efore approving an air quality implementation plan or revision, the 

Administrator must determine that it ‘includes emission limitations . . . and such other 

measures as may be necessary to insure attainment and maintenance of (the) primary or 

secondary standard . . . .’” 547 F.2d 123, 129 (1st Cir. 1976) (quoting former section 

110(a)(2)(B)). 

 The 1990 Clean Air Act amendments do not alter this picture. Court decisions 

since the 1990 amendments have continued to hold that I-SIPs must have emission limits 

that maintain the NAAQS. In Alaska Department of Environmental Conservation v. 

EPA, the Supreme Court explained that an Infrastructure SIP under CAA section 

110(a)(1) must be a “plan which provides for implementation, maintenance, and 

enforcement of [NAAQS].” 540 U.S. 461, 470 (2004) (quoting section 110(a)(1)). 

“While States have wide discretion in formulating their plans . . . SIPs must include 

certain measures Congress specified to assure that national ambient air quality standards 

are achieved.” Id. (internal citations and quotations omitted). Thus, in order for EPA to 

approve a SIP, it “must ‘include enforceable emission limitations and other control 

measures, means, or techniques . . . as may be necessary or appropriate to meet the 

applicable [CAA] requirements.’” Id. (quoting 42 U.S.C. § 7410(a)(2)(A)). 

 The circuit courts have also been clear that section 110(a)(2)(A) from the post1990 Clean Air Act requires enforceable emission limits in I-SIPs. For example, the 

Ninth Circuit affirmed that “[t]he Clean Air Act directs states to develop implementation 

plans—SIPs—that ‘assure’ attainment and maintenance of national ambient air quality 

standards (‘NAAQS’) through enforceable emission limitations.” Mont. Sulphur &

Chem. Co., 666 F.3d at 1180 (citing 42 U.S.C. §§ 7407(a), 7410(a)(2)(A)) (emphasis 

added). And the Sixth Circuit has explained that “EPA’s deference to a state is 

conditioned on the state’s submission of a plan ‘which satisfies the standards of § 

110(a)(2)’ and which includes emission limitations that result in compliance with the 

NAAQS.” Mich. Dep’t of Envtl. Quality, 230 F.3d at 185 (quoting Train, 421 U.S. at 

79). 

 

 

6

 The court was interpreting the 1977 version of the statute in which Subpart 1 of Part D had been 

added, id. at 271 n.1, but relied on the language of then-current section 110(a)(2)(B) (now found 

in section 110(a)(2)(A)). Pennsylvania Dep’t of Envtl. Res., 32 F.2d at 272.
10

 Additionally, in Hall v. EPA, the Ninth Circuit held that EPA had not fulfilled its 

responsibility under another provision—section 110(l)7—to evaluate whether a revised 

air quality plan will achieve the pollution reductions required under the Act. 273 F.3d at 

1152. In Hall, the court held that EPA had incorrectly approved a revision to an air 

quality plan solely on the basis that the revisions did not relax the existing SIP, rather 

than “measur[ing] the existing level of pollution, compar[ing] it with the national 

standards, and determin[ing] the effect on this comparison of specified emission 

modifications.” Id. at 1157-58 (quoting Train, 421 U.S. at 93). EPA claimed a statutory 

equivalence between non-relaxation of rules approved in 1981 and non-interference with 

current attainment requirements. Id. at 1155. The court rejected EPA’s application of the 

“no relaxation” rule, finding it inconsistent with the Act because it set an improper 

baseline that failed to take into consideration the 1990 amendments, which set new 

deadlines for attainment and established other new requirements for incremental progress 

towards attainment. Id. at 1160-61. Those current attainment requirements were the 

baseline from which EPA should have measured “non-interference.” Id. EPA’s analysis 

was required to reflect consideration of the prospects of meeting current attainment 

requirements under a revised air quality plan. Id. Just as a plan revision must not 

interfere with attainment of the NAAQS under section 110(l), an I-SIP must likewise 

include enforceable limits sufficient to ensure the initial plan provides for maintenance of 

the NAAQS under 110(a)(2)(A). 

II. Minnesota’s Draft Infrastructure SIP Fails to Meet the Requirements of 

Section 110(a)(2) of the Clean Air Act 

A. Minnesota’s Draft I-SIP does not Incorporate the 2010 NO2, 2010 

SO2, 2008 Ozone, and 2012 PM2.5 NAAQS.

As discussed in detail above, an Infrastructure SIP must provide for the 

implementation maintenance, and enforcement of the primary, the levels of air quality 

necessary to protect public health. 42 U.S.C. § 7410(a)(1) & § 7409(b)(1). A minimum 

requirement to accomplish this task is to incorporate the primary NAAQS into the I-SIP 

meant to attain and maintain them. The revised NAAQS this Draft I-SIP is meant to 

address are as follows: 

• The 2010 NO2 NAAQS imposes a one-hour standard at a level of 100 ppb, 

based on the three-year average of the annual 98th percentile of one-hour 

daily maximum concentrations. 40 C.F.R. § 50.11(b),(f). 

 

• The 2010 SO2 NAAQS imposes a new one-hour standard at a level of 196 

micrograms per cubic meter (“μg/m3”) or 75 ppb, which is met when the 

3-year average of the 99th percentile of the annual distribution of daily 

 

7

 Section 110(l) provides, in relevant part, that “[t]he Administrator shall not approve a revision 

of a [state implementation] plan if the revision would interfere with any applicable requirement 

concerning attainment and reasonable further progress . . . or any other applicable requirement of 

this chapter.” 42 U.S.C. § 7410(l).
11

maximum one-hour average concentrations is less than or equal to 75 ppb. 

40 C.F.R. § 50.17(a)-(b). 

• The 2008 primary ozone standard imposes the standard of 75 ppb of the 

annual fourth-highest daily maximum eight-hour concentration averaged 

over 3 year. 

 

• Lastly, the fine particles (generally referring to particles less than or equal 

to 2.5 micrometers (μm) in diameter, PM2.5) standard imposes a primary 

annual PM2.5 level of 12.0 micrograms per cubic meter (μg/m3) and 

retained the 24-hour PM2.5 standard at a level of 35 μg/m3

. See National 

Ambient Air Quality Standard for Particulate Matter Final Rule, 78 Fed. 

Reg. 3,068 (Jan. 15, 2013). 

Despite this requirement, Minnesota fails to include the revised NAAQS in its 

regulations. Minnesota lists its State Ambient Air Quality Standards in the Minnesota 

Administrative Rules, and they do not incorporate the new NAAQS. See Minn. R. 

7009.0080 (failing to include the 2010 NO2, 2010 SO2, 2008 ozone, and 2012 PM2.5

NAAQS). Moreover, the NO2 and SO2 standards listed in Minnesota’s existing rules 

contain outdated averaging times. Id. (averaging times listed in annual, 24-hour, or threehour time periods, instead of one-hour averaging time). 

The I-SIP is meant to implement, maintain, and enforce the 2010 NO2, 2010 SO2, 

2008 ozone, and 2012 PM2.5 NAAQS and, therefore, must contain regulations which 

establish the correct primary and secondary ambient air quality standards within the state 

in order to ensure its effectiveness. 42 U.S.C. § 7410(a)(2)(A). Minnesota’s Draft I-SIP 

and regulations are outdated and inadequate. Accordingly, Minnesota must revise the 

Draft I-SIP so that it contains accurate, up-to-date ambient air quality standards reflective 

of the 2010 one-hour NO2, 2010 one-hour SO2, 2008 eight-hour ozone, and 2012 annual 

and 24-hour PM2.5 NAAQS in order to comply with the Clean Air Act. 

B. Minnesota’s Draft Infrastructure SIP Fails to Include Enforceable 

One-Hour SO2 Emission Limitations to Ensure Attainment and 

Maintenance of the Primary SO2 NAAQS. 

Minnesota’s Draft I-SIP fails to include restrictions on major SO2 sources to 

ensure that areas not currently designated nonattainment will attain and maintain the new 

one-hour SO2 NAAQS. 

i. Minnesota’s Draft I-SIP Must be Revised to Include Enforceable 

One-Hour SO2 Emission Limits for Sources Currently Allowed to 

Cause Exceedances of the NAAQS. 

Emission limits on major sources are especially important for meeting the onehour SO2 NAAQS given the “strong source-oriented nature of SO2 ambient impacts.” 
12

Final SO2 NAAQS Rule, 75 Fed. Reg. at 35,570. Nationally, large point sources account 

for 95 percent of SO2 emissions, 66 percent of which come from fossil fuel combustion at 

electric facilities. Id. at 35,524. Specifically, in Minnesota, coal-fired electric generating 

units are responsible for 55 percent of all SO2 emissions released in the State, or 40,792 

tons in 2011. See SO2 NEI All Sectors (2011)_28 Apr 2014.xlsx, Excel Worksheet 

“Percentage Summary (All States)”, attached hereto as Ex. 4; see also EPA, The National 

Emissions Inventory, Sector Summaries, 

http://www.epa.gov/ttn/chief/net/2011inventory.html. 

MPCA has not even attempted to demonstrate that emissions allowed by the Draft 

I-SIP will ensure compliance with the one-hour SO2 standard. As determined by expert 

air dispersion modeling conducted at Sierra Club’s request, the limits in place under the 

Draft I-SIP are insufficient to attain and maintain the NAAQS. In particular, the 

Minnesota Power Boswell Coal Plant (“Boswell Plant”), the Otter Tail Hoot Lake Coal 

Plant (“Hoot Lake Coal Plant”),8 Xcel Energy Sherburne County Coal Plant (“Sherco 

Coal Plant”), and Minnesota Power Taconite Harbor Energy Center (“Taconite Harbor 

Plant”) demonstrated the current limits in the Draft I-SIP are insufficient to ensure the 

2008 SO2 NAAQS. See Khanh Tran, AERMOD Modeling of SO2 Impacts of the 

Minnesota Power Boswell Coal Plant (Oct. 6, 2011), [hereinafter “Boswell Report”], 

attached hereto as Ex. 5; Khanh Tran, AERMOD Modeling of SO2 Impacts of the Otter 

Tall Hoot Lake Coal Plant (Oct. 4, 2011), [hereinafter “Hoot Lake Report”], attached 

hereto as Ex. 6; Khanh Tran, AERMOD Modeling of SO2 Impacts of the Xcel Energy 

Sherbu[r]ne County Coal Plant (Dec. 10, 2011), [hereinafter “Sherco Report”] , attached 

hereto as Ex. 7; Steven Klafka, Taconite Harbor Energy Center Schroeder, Minnesota 

Evaluation of Compliance with the 1-hour NAAQS for SO2 (Mar. 23, 2014), [hereinafter 

“Taconite Harbor Report”], attached hereto as Ex. 8. 

The Boswell Report, Hoot Lake Report, Sherco Report, and Taconite Harbor 

Report present the results of air dispersion modeling analyses that compare the modeled 

ambient air concentrations of each plant’s SO2 emissions with the 2010 one-hour primary 

NAAQS. The modeling analyses employed EPA’s AERMOD program to model the 

plants’ “allowable” (based on the current Title V permit) and “actual” (based on 

maximum plant-wide hourly emissions obtained from EPA’s Clean Air Markets Data and 

Maps database) emissions to determine whether each plant could cause exceedances of 

the one-hour SO2 NAAQS. See Boswell Report at 4; Hoot Lake Report at 4; Sherco 

Report at 4; Taconite Harbor Report at 3. While the reports include analyses of both 

allowable and actual emissions, the modeling based on allowable emissions is crucial to a 

determination of whether the Minnesota Draft I-SIP is adequate to attain and maintain the 

SO2 NAAQS, because this modeling demonstrates the impact of the emissions allowed 

by each plant’s permit. Even where the actual maximum emissions do not show an 

exceedence of the NAAQS, it is critically important that the I-SIP not authorize emission 

levels that contribute to exceedences of the NAAQS. 

 

8

 While Hoot Lake Coal Plant is anticipated to close in 2020, until it does, its emissions are 

contributing to exceedances of the NAAQS and must be addressed by Minnesota in its I-SIP.
13

The modeling protocol for Boswell Plant, Hoot Lake Plant, and Sherco Plant used 

the most recent version of AERMOD available at the time of the reports, version 11103. 

See Boswell Report at 4; Hoot Lake Report at 3; Sherco Report at 3. For Taconite 

Harbor Report the modeling protocol employed was consistent with all available 

technical guidance, including Appendix W and EPA’s March 2011 guidance for 

implementing the one-hour SO2 NAAQS. Additionally, the modeler used the most recent 

version of AERMOD available at the time of the studies. Taconite Harbor Report at 2. 

The modeling reports demonstrate that the current emission limits—those 

Minnesota has deemed adequate in its Draft I-SIP—cause exceedances of the one-hour 

SO2 NAAQS. See Boswell Report at 6, Table 2; Hoot Lake Report at 6, Table 2; Sherco 

Report at 6, Table 2; Taconite Harbor Report at 3, Table 1. The modeling results are 

above the NAAQS for allowable emission limits in each permit and show exceedances in 

Itasca, Otter Tail, Sherburne, Cook and Lake counties in Minnesota. See Boswell Report 

at 6, Table 2 and 7, Fig. 2; Hoot Lake Report at 6, Table 2 and 7, Fig. 2; Sherco Report at 

6, Table 2 and 7, Fig. 2; Taconite Harbor Report at 3, Table 1 and 6, Fig. 1. Because no 

area in Minnesota has been designated nonattainment under the one-hour SO2 NAAQS, 

the I-SIP must limit the emissions from these sources and ensure that the maintenance 

and attainment of the SO2 NAAQS. See generally Air Quality Designations for the 2010 

Sulfur Dioxide (SO2) Primary National Ambient Air Quality Standard, 78 Fed. Reg. 

47,191 (Aug. 5, 2013), [hereinafter “Final 2010 SO2 Designations”].9 

The findings from each modeling report are summarized in Table 1 below.

 

9

 EPA has yet to issue designations for areas aside from those containing monitors that recorded 

exceedances of the NAAQS. See Final 2010 SO2 Designations at 47,191 (designating areas with 

monitor violations from 2009-2011 as nonattainment). EPA’s failure to do so is the subject of 

litigation. Sierra Club v. McCarthy, 4:13-cv-03953-KAW (N.D. Cal).
14

Table 1: Summary of Modeled Allowable and Maximum Emissions 

Power 

Plant

Emission 

Rates

Facility 

Impact

(μg/m3)

Background

(μg/m3)

10

Total 

Impact

Facility 

Impact plus 

Background

(μg/m3)

SO2

NAAQS

(μg/m3)

11

Counties 

Impacted (Not 

Designated 

Nonattainment)

Boswell Allowable 533.0 26.2 559.2 196.2

Coal 

Plant

Maximum 101.8 26.2 128.0 196.2

Itasca

Hoot Allowable 349.2 26.2 375.4 196.2

Lake 

Coal 

Plant

Maximum 148.2 26.2 174.4 196.2

Otter Tail

Sherco Allowable 504.1 30.0 534.1 196.2

Plant Maximum 191.6 30.0 221.6 196.2

Sherburne

Taconite Allowable 2,418.9 5.2 2,424.1 196.2

Harbor 

Plant12

Maximum 1,128.1 5.2 1,133.3 196.2

Cook & Lake13

See Boswell Report at 6, Table 2, 8, Table 3, and 7, Fig. 2; see Hoot Lake Report at 6, 

Table 2, 8, Table 3, and 7, Fig. 2; see Sherco Report at 6, Table 2, 8, Table 3, and 7, Fig. 

2; see Taconite Harbor Report at 3, Table 1 and 6, Fig. 1. 

Based on the modeling results summarized above, MPCA must promulgate 

enforceable emission limits with one-hour averaging time into its proposed I-SIP that are 

no less stringent than the limits listed in Table 2, below, to achieve and maintain the onehour SO2 NAAQS. These limits represent the maximum rate that each facility can emit 

without causing NAAQS exceedances, thus reducing each total plant’s allowable 

emissions by the corresponding percentage. These emission limits must apply at all times 

including during periods of start-up, shutdown, and malfunction.14

 

10 The varying background levels reflect different locations of the plants and different time 

periods when the reports were completed. 

11 The 75 ppb standard can be converted to μg/m3 as follows: 75/0.3823 = 196.2 μg/m3

. 12 Boiler 3 at Taconite Harbor is anticipated to retire in 2015, however even operating with two 

boilers Taconite Harbor Plant emissions exceeds the 2010 SO2 NAAQS. See Taconite Harbor 

Report at 3, Table 1.

13 Taconite Harbor Plant’s SO2 allowable exceedance plume covers several sensitive recreation 

areas, including the Sawbill Trail, Carlton Peak, and Lake Superior Hiking Trail. See Taconite 

Harbor Report at 4, 9, Figure 4, and 10, Figure 5.

14 Sierra Club strongly agrees with MPCA that emission limits should apply at all times, even 

during periods of startup, shutdown, and malfunction. See Draft I-SIP, at 2.
15

Table 2: Limits Necessary to Achieve and Maintain the One-Hour SO2 NAAQS 

See Boswell Report at 6; Hoot Lake Report at 6; Sherco Report at 6; Taconite Harbor 

Report at 4, Table 3. 

As demonstrated by the modeling reports, each of the plants16 is currently 

authorized to cause exceedances of the one-hour SO2 NAAQS based on its allowable 

emission rates. Therefore, MPCA must impose additional emission limits on the plants 

that ensure attainment and maintenance of the NAAQS at all times. As the I-SIP 

submission does not incorporate emission limitations that are necessary to meet the 

applicable requirements of the Clean Air Act (or indeed, any new emission limits for 

these or other SO2-emitting facilities), including the requirement to maintain compliance 

with the 2010 SO2 NAAQS, the proposed I-SIP fails to comply with CAA section 

110(a)(2)(A) and, therefore, must be appropriately revised. 

ii. Modeling is the Appropriate Tool for Evaluating the Adequacy 

of Infrastructure SIPs and Ensuring Attainment and Maintenance 

of the SO2 NAAQS. 

As outlined by EPA in the Final SO2 NAAQS Rule, 75 Fed. Reg. at 35,551, air 

dispersion modeling is the best method for evaluating the short-term impacts of large SO2 

sources. This is consistent with EPA’s historic use of air dispersion modeling for 

attainment designations and SIP revisions. Furthermore, an agency may not ignore 

information put in front of it, such as Sierra Club’s modeling submitted with these 

comments. See generally Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 

463 U.S. 29, 43 (1983) (holding that it was arbitrary and capricious for the agency to 

ignore an important aspect of an issue placed before it); see also NRDC v. EPA, 571 F.3d 

1245, 1254 (D.C. Cir. 2009) (restating EPA’s own statement that additional information 

presented in a notice-and-comment rulemaking must be considered during the rulemaking 

by the corresponding state and EPA) (citing 70 Fed. Reg. 71,612, 71,655); Trout 

Unlimited, Inc. v. Minnesota Dep't of Agric., 528 N.W.2d 903, 907 (Minn. Ct. App. 

 

15 Percentages and rates under a two boilers scenario can be found in the Taconite Harbor 

Modeling Report. See Taconite Harbor Report at 4, Table 3.

16 In fact, the Taconite Harbor Plant, based on its permit’s allowable emission, rate exceeded the 

2010 SO2 NAAQS ninety-seven percent of the time during a two year period. See Taconite 

Harbor Report at 4, Table 3 (finding Taconite Harbor Plant exceeded the allowable emission rate 

from June 2010 to 2012).

Plant

Required Total 

Facility Reduction 

Based on Allowable 

Emissions (%)

Required Total 

Facility Emission 

Rate (lbs/hr)

Required Total 

Facility 1-hour 

Average Emission 

Rate (lbs/mmbtu)

Boswell Coal Plant 68% 8,176 n/a

Hoot Lake Coal 

Plant 51% 2,116.8 n/a

Sherco Coal Plant 67% 9,541.6 n/a

Taconite Harbor 

Plant15 92.1% 137.7 0.06
16

1995) (citing Motor Vehicle Mfrs.' Ass'n for principle that agency may not ignore 

important aspect of issue before it). 

MPCA has long been on notice that modeling data is an important resource in the 

SO2 NAAQS attainment and maintenance process. See Letter from Paul Aasen, 

Commissioner, MPCA to Susan Hedman, Regional Administrator, EPA Region 5 at 2 

(May 23, 2011) (noting that EPA was using modeling in its analysis of designations), 

available at

http://www.epa.gov/air/sulfurdioxide/designations/recletters/R5_MN_rec_wtechanalysis.

pdf. Previously, MPCA has set hourly SO2 limits for major sources based on air 

dispersion modeling, as part of the Title V permitting process.17 Setting limits based on 

modeling, as necessary to avoid violations of NAAQS is therefore not only required by 

state law governing MPCA’s issuance of air operating permits,18 but has been MPCA’s 

past practice. The Draft I-SIP notes that “MPCA may require applicable major sources in 

Minnesota to perform modeling to show that emissions do not cause or contribute to a 

violation of any NAAQS,” and that the agency “maintains the capability to perform its 

own modeling.” Draft I-SIP at 6. MPCA should use that capability, or require major 

SO2 sources to perform modeling as needed, to establish whether their current allowable 

emissions are causing or contributing to a violation of the 1-hour SO2 NAAQS. 

In addition, EPA has historically used modeling in determining attainment for the 

SO2 standard. See e.g., U.S. EPA, Implementation of the 1-Hour SO2 NAAQS Draft 

White Paper for Discussion at 3, fn. 1 [hereinafter “EPA White Paper”], available at 

http://www.epa.gov/airquality/sulfurdioxide/pdfs/20120522whitepaper.pdf; see also

Respondent’s Opposition to Motion of the State of North Dakota for a Stay of EPA’s 1-

Hour Sulfur Dioxide Ambient Standard Rule at 3, National Environmental Development 

Association’s Clean Air Project v. EPA (D.C. Cir. 2010) (No. 10-1252), attached hereto 

as Ex. 9 (“the Agency has historically relied on modeling to make designations for sulfur 

dioxide”). 

In fact, in EPA’s 1994 SO2 Guideline Document, EPA noted that “for SO2

attainment demonstrations, monitoring data alone will generally not be adequate,” U.S. 

EPA, 1994 SO2 Guideline Document, [hereinafter “1994 SO2 Guideline Document”], 

available at http://www.epa.gov/ttn/oarpg/t1/memoranda/so2_guide_092109.pdf, at 2-5, 

and that “[a]ttainment determinations for SO2 will generally not rely on ambient 

monitoring data alone, but instead will be supported by an acceptable modeling analysis 

which quantifies that the SIP strategy is sound and that enforceable emission limits are 

 

17 See Black Dog Plant Permit No. 03700003-11, Technical Support Document, at 5 & 10 (permit 

emission limits based on modeling analyses); see also Allen S. King Title V Technical Support 

Document, at 6, 14, 16 & 39 (permit emission limits based on modeling analyses).

18 Under Minn. R. 7009.0040, “any violations of the ambient air quality standards shall constitute 

grounds for the modification or revocation of a permit.” Minnesota law makes clear that national 

ambient air quality standards are all “applicable requirements” that must be incorporated into 

Title V permits issued by MPCA. See Minn. R. 7007.0800, subp. 2 and that emissions in 

violation of NAAQS are prohibited, see Minn. R. 7009.0020. This mandate is enforceable in a 

civil action brought under Minn. Stat. § 116B.10 (2012). 
17

responsible for attainment.” Id. at 2-1. 

EPA’s approval and acceptance of modeling for making attainment designations 

stretches back decades and demonstrates that modeling is equally applicable to 

determining the adequacy of an Infrastructure SIP. In 1983, the Office of Air Quality 

Planning and Standards (“OAQPS”) issued a Section 107 Designation Policy Summary. 

See Sheldon Meyers Memorandum re Section 107 Designation Policy Summary (April 

21, 1983), attached hereto as Ex. 10. EPA’s final 2010 SO2 NAAQS rule simply built 

upon EPA’s historical practice of using modeling to determine attainment and 

nonattainment status for SO2 NAAQS. In doing so, EPA properly recognized the “strong 

source-oriented nature of SO2 ambient impacts,” and concluded that the appropriate 

methodology for purposes of determining compliance, attainment, and nonattainment 

with the new NAAQS is modeling. See Final SO2 NAAQS Rule at 35,370, 35,551 

(describing dispersion modeling as “the most technically appropriate, efficient and 

readily available method for assessing short-term ambient SO2 concentrations in areas 

with large point sources.”). Accordingly, EPA explained that, for the one-hour standard, 

“it is more appropriate and efficient to principally use modeling to assess compliance for 

medium to larger sources . . . .” Id. at 35,570. EPA reiterated in a subsequent white 

paper that using modeling to determine attainment for the SO2 standard “could better 

address several potentially problematic issues than would the narrower monitoringfocused approach discussed in the proposal for the SO2 NAAQS, including the unique 

source-specific impacts of SO2 emissions and the special challenges SO2 emissions have 

historically presented in terms of monitoring short-term SO2 levels for comparison with 

the NAAQS in many situations (75 FR 35550).” EPA White Paper at 3-4. 

EPA employs and relies on modeling to inform its designations because the 

agency is well aware that modeling produces reliable results. For example, as John C. 

Vimont, EPA Region 9’s Regional Meteorologist, has stated under oath: 

EPA does recognize the usefulness of ambient measurements for 

information on background concentrations, provided reliable monitoring 

techniques are available. EPA does not recommend, however, that ambient 

measurements be used as the sole basis of setting emission limitations or 

determining the ambient concentrations resulting from emissions from an 

industrial source. These should be based on an appropriate modeling 

analysis.

Declaration of John C. Vimont at 1, 11 (emphasis added), attached hereto as Ex. 11. 

Testimony as to the accuracy and appropriateness of modeling has also been presented by 

Roger Brode, a physical scientist in EPA’s Air Quality Modeling Group who co-chairs 

the AMS/EPA Regulatory Model Improvement Committee (AERMIC) and the 

AERMOD Implementation Workgroup. See Declaration of Roger W. Brode at 1, 2, 

attached hereto as Ex. 12. Mr. Brode has stated under oath that AERMOD is “readily 

capable of accurately predicting whether the revised primary SO2 NAAQS is attained and 

whether individual sources cause or contribute to a violation of the SO2 NAAQS.” Id. at 

2. Mr. Brode has explained: 
18

As part of the basis for EPA adopting the AERMOD model as the 

preferred model for nearfield applications in the Guideline on Air Quality 

Models, Appendix W to 40 CFR Part 51, the performance of the 

AERMOD model was extensively evaluated based on a total of 17 field 

study data bases (AERMOD: Latest Features and Evaluation Results. 

EPA-454/R-03-003. U.S. Environmental Protection Agency, Research 

Triangle Park (2003), portions of which are attached to this affidavit) 

(“EPA 2003”). The scope of the model evaluations conducted for 

AERMOD far exceeds the scope of evaluations conducted on any other 

model that has been adopted in Appendix W to Part 51. These evaluations 

demonstrate the overall good performance of the AERMOD model based 

on technically sound model evaluation procedures, and also illustrate the 

significant advancement in the science of dispersion modeling represented 

by the AERMOD model as compared to other models that have been used 

in the past. In particular, adoption of the AERMOD model has 

significantly reduced the potential for overestimation of ambient impacts 

from elevated sources in complex terrain compared to other-models.

Id. at 3-4 (emphasis added). The Boswell Coal Plant, Hoot Lake Coal Plant, Sherco Coal 

Plant, and Taconite Harbor Plant are clear examples of elevated sources. 

EPA has long preferred modeling over monitoring to evaluate compliance with 

the NAAQS. For example, all NO2, PM2.5, SO2, and Prevention of Significant 

Deterioration (“PSD”) increment compliance verification analyses are performed with air 

dispersion modeling, such as running AERMOD in a manner consistent with the 

Guideline on Air Quality Models. 40 C.F.R. § 52.21(l)(1). Indeed, in order to ensure 

consistency in how ambient air impacts of emissions are determined, both existing 

sources and newly permitted sources should be assessed using the same methods. 

AERMOD modeling performs particularly well in evaluating emission sources with one 

or a handful of large emission points. The stacks are well characterized in terms of 

location, dimensions, and exhaust parameters, and have high release heights. AERMOD 

accurately models medium-to-large SO2 sources—even with conditions of low wind 

speed, the use of off-site meteorological data, and variable weather conditions. 

AERMOD has been tested and performs very well during conditions of low wind speeds: 

AERMOD’s evaluation analyses included a number of site-specific 

meteorological data sets that incorporate low wind speed conditions. For 

example, the Tracy evaluation included meteorological data with wind 

speeds as low as 0.39 meter/second (m/s); the Westvaco evaluation 

included wind speeds as low as 0.31 m/s; the Kincaid SO2 evaluation 

included wind speeds as low as 0.37 m/s; and the Lovett evaluation 

included wind speeds as low as 0.30 m/s. Concerns . . . regarding 

AERMOD’s ability to model low wind speed conditions seem to neglect 

the data used in actual AERMOD evaluations. 
19

Comments of Camille Sears 1, at 10, attached hereto as Ex. 13 (citing AERMOD 

evaluations and modeled meteorological data, available at

http://www.epa.gov/ttn/scram/dispersion_prefrec.htm). Finally, EPA’s use of air 

dispersion modeling and AERMOD in particular was upheld in the context of a recent 

Clean Air Act § 126 petition for resolution of cross-state impacts. See Genon Rema, LLC 

v. U.S. EPA, 722 F.3d 513, 518 & 526 (3rd Cir. 2013) (upholding EPA’s reliance on SO2

AERMOD dispersion modeling establishing significant contributions of SO2 to the 

nonattainment and interference with the maintenance of the one-hour SO2 NAAQS in 

New Jersey). 

Despite EPA’s position that for the one-hour SO2 NAAQS modeling is the most 

accurate means of determining attainment with the NAAQS and MPCA’s prior reliance 

on modeling, Minnesota’s Draft I-SIP lacks SO2 emissions limitations for major sources 

informed by air dispersion modeling. As a result, the proposed amendment fails to 

ensure that Minnesota will achieve and maintain the 2010 one-hour SO2 NAAQS. To 

comply with the Act’s obligations, Minnesota must include adequate emissions limits in 

its I-SIP―that is, source-specific SO2 emission limits that show no exceedances of the 

NAAQS when modeled. 

iii. The Draft I-SIP Must Include Enforceable SO2 Emission 

Limits with a One-Hour Averaging Period that Apply at all Times. 

As discussed, an emission limitation necessary to comply with section 

110(a)(2)(A) means “a requirement established by the State or the Administrator which 

limits the quantity, rate, or concentration of emissions of air pollutants on a continuous 

basis, including any requirement relating to the operation or maintenance of a source to 

assure continuous emission reduction, and any design, equipment, work practice or 

operational standard promulgated under this chapter.” 42 U.S.C. § 7602(k). Therefore, 

emission limitations must also contain proper averaging times. Otherwise the emission 

limits would allow for peaks that cause exceedances of the NAAQS, but are averaged 

with lower emissions over time, and therefore do not register as exceedances. In this 

instance, the one-hour SO2 NAAQS requires a one-hour averaging period. 

In various contexts, EPA has stated that one-hour averaging times are necessary 

to comply with the one-hour SO2 NAAQS. For instance, in 2011, EPA disagreed with 

the Kansas Department of Health and Environment’s issuance of a PSD permit that 

contained a 30-day averaging time rather than a one-hour averaging period. See Letter 

from Karl Brooks, Regional Administrator, EPA Region 7 to Dr. Robert Moser, 

Secretary, Kansas Department of Health and Environment (Feb. 3, 2011), attached hereto 

as Ex. 14. EPA explained: 

[i]t is well known that there can be considerable variability in actual 1-

hour emission rates. Therefore, to ensure protection of the 1-hour . . . SO2

NAAQS . . . the permit needs to contain . . . SO2 1-hour average emission 

limits for both new and existing steam generating units. To ensure the 

source does not cause or contribute to air pollution in violation of the 
20

NAAQS, the emission limits should be consistent with the modeling rates 

and have the same averaging period, i.e. in this case maximum hourly 

emission limits consistent with the 1-hour NAAQS. 

Id. at 2. Similarly, in its disapproval of Missouri’s SIP in 2006, EPA determined that the 

emission rates in the SIP were “not protective of the short-term sulfur dioxide NAAQS” 

because they were based on an annual average. See Approval and Promulgation of 

Implementation Plans; State of Missouri, 71 Fed. Reg. 12,623, 12,624 (Mar. 13, 2006). 

In 2011, the Environmental Appeals Board confirmed that emission limits for SO2 should 

be based on hourly averaging times, and rejected an agency’s attempt to use a 3-hour 

averaging time instead. In re: Mississippi Lime Co., PSDAPLPEAL11-01, 2011 WL 

3557194, at *26-27 (E.P.A. Aug. 9, 2011) (“Emission limits should be based on 

concentration estimates for the averaging time that results in the most stringent control 

requirements. 40 C.F.R. pt. 51, app. W, § 10.2.3.1.a.”). 

 In addition to including emissions limits based on a one-hour averaging period, 

Minnesota’s Draft I-SIP must require monitoring of SO2 emission limits on a continuous 

basis using a continuous emission monitor system or systems. Clean Air Act section 

110(a)(2)(F) requires Minnesota’s Draft I-SIP to establish a system to monitor emissions 

from stationary sources and to submit periodic emissions reports. In order to ensure 

emission limits which are protective of the one-hour SO2 NAAQS, the I-SIP must require 

that SO2 emissions are monitored from these sources during every hour of operation, 

regardless of whether SO2 control equipment has been installed. 

Minnesota’s I-SIP is meant to implement, maintain, and enforce the NAAQS and 

therefore must include “enforceable emission limitations” to ensure its effectiveness. 42 

U.S.C. § 7410(a)(2)(A). EPA has stated that only one-hour averaging periods can ensure 

compliance with the one-hour SO2 NAAQS. To ensure that all areas in Minnesota attain 

and maintain the one-hour SO2 NAAQS, MPCA must revise its I-SIP to include 

enforceable emission limits with one-hour averaging times, monitored continuously, for 

coal-fired power plants and other large sources of SO2. These emission limits must apply 

at all times, including periods of start-up, shutdown, and malfunction. 

iv. Enforceable Emission Limits are Necessary to Avoid 

Nonattainment Designations. 

In addition to being a required component of the I-SIP, enforceable emission 

limits—either in permits or source-specific SIP provisions—are necessary to avoid 

nonattainment designations in areas where modeling or monitoring shows that SO2 levels 

exceed the one-hour NAAQS. See EPA, Next Steps for Area Designations and 

Implementation of the Sulfur Dioxide National Ambient Air Quality Standard at 4 (Feb. 

6, 2013) (explaining that agencies should work “to avoid a nonattainment designation by 

establishing and submitting to EPA enforceable emission limitations ensuring that 

attainment with the SO2 NAAQS (in the form of permit limits, source specific SIP 

revisions, or other permanent and enforceable legal documents) occurs prior to the date 

that final designations based on modeling information are issued” (emphasis added)); 
21

Primary National Ambient Air Quality Standard for Sulfur Dioxide, 75 Fed. Reg. at 

35,553 (June 22, 2010) (areas will “be designated ‘nonattainment’ if either available 

monitoring data or modeling shows that a violation exists, or ‘attainment’ if both 

available monitoring data and modeling indicate the area is attaining” (emphasis added)). 

As noted above in footnote seventeen, Minnesota has previously imposed lower 

hourly SO2 limits on electric generating facilities in order to avoid contributing to 

nonattainment of the 1-hour SO2 NAAQS. This I-SIP process provides an opportunity for 

Minnesota to do exactly that on a more comprehensive basis. In order to comply with 

section 110(a)(2)(A) and avoid nonattainment designations for areas impacted by high 

SO2 emissions, MPCA must amend the Draft I-SIP to ensure that large sources of SO2

cannot cause exceedances of the one-hour SO2 NAAQS. 

C. The Draft Infrastructure SIP Fails to Ensure the Attainment and 

Maintenance of the Primary 2008 Ozone NAAQS, and thus, Must be 

Revised. 

Minnesota’s Draft I-SIP fails to include emission limits and other restrictions on 

sources of ozone precursors, including anthropogenic sources like nitrogen oxides 

(“NOx”) and volatile organic compounds (“VOCs”), to ensure that areas not designated 

nonattainment will attain and maintain the 2008 eight-hour ozone NAAQS. In 2013, 

MPCA told the Minnesota Legislature that that Minnesota has the potential to exceed the 

federal ozone standard. See MPCA, Air Quality in Minnesota 2013 Report to the 

Legislature 1, 8 (Jan. 2013), http://www.pca.state.mn.us/index.php/aboutmpca/legislative-resources/legislative-reports/air-quality-in-minnesota-reports-to-thelegislature.html, [hereinafter “MPCA Air Quality Report”].19 MPCA noted that the 

ozone problem is compounded by rising temperatures associated with climate change that 

make Minnesota more susceptible to ozone exceedances. Id. at 8. MPCA also found that 

“sources...like electricity produced from burning coal remains a significant contributor to 

air pollution” and less regulated or unregulated smaller sources are increasingly 

becoming a problem. Id. at 4. 

With Minnesota facing increasing threats from high concentrations of ozone, 

Minnesota should establish a comprehensive modeling and/or monitoring program for 

ozone and its precursors to learn how to better address these potentially dangerous levels 

of ozone. In addition, MPCA must place emission limits on sources big and small, 

including major and minor sources, to ensure Minnesota attain and maintains the eighthour ozone NAAQS and avoids nonattainment designations in the future. Despite 

 

19 The potential to exceed the federal ozone standard is especially troubling in light of the fact that 

EPA is currently considering revising the ozone standard. In January, EPA solicited comments 

on the ozone NAAQS. See generally Review of National Ambient Air Quality Standards for 

Ozone; Draft Document (Doc ID: EPA-HQ-OAR-2008-0699-0116) (Jan. 29. 2014). In the 

MPCA Air Quality Report, MPCA states that if the NAAQS are set at a 60-70 ppb range for 

ozone, many Minnesota counties would be designated nonattainment. See MPCA Air Quality 

Report at 8.
22

knowing that Minnesota is on the precipice of exceeding the ozone NAAQS, MPCA is 

taking insufficient action to limit ozone concentrations and fails to demonstrate how it 

plans to address these significant ozone and ozone precursors.20

i. Adding Control Devices and Emissions Limits on Electric 

Generating Units are a Cost Effective Option to Reduce NOx and 

Attain and Maintain the 2008 Ozone NAAQS. 

As MPCA and EPA recognize, fuel combustion from sources such as electric 

generating units “is one of the largest anthropogenic sources of emissions of NOX in the 

United States.” 73 Fed. Reg. at 16504; MPCA Air Quality Report at 4. Limits and 

control devices on coal-fired electric generating units (“EGUs”) are a highly cost 

effective option to ensure the 2008 ozone NAAQS are attained and maintained. In 

addition, reductions at major sources are easier to establish and implement when 

compared to addressing various minor sources and nonpoint sources. 

 Nitrogen Oxides, an ozone precursor, can be reduced cost-effectively through 

installation of selective catalytic reduction (“SCR”) technology at EGUs where it is not 

already in place and by imposing short-term stringent emission limits on all EGUs. At 

least eight Minnesota electric generating units do not have SCR technology and are not 

currently planning on retiring: including Sherco Plant's units 1, 2, and 3; Boswell Plant's 

units 1, 2, and 4; and, Taconite Harbor Plant's units 1 and 2.

Even if a plant has SCR technology, all EGUs should have emission limits for 

NOx based on 0.07 pound per MMBtu (“lb/MMBtu”) based on an one-hour averaging 

time that applies at all times, including during startup and shut down. EPA, itself, has 

long acknowledged that 90% removal efficiency for SCR on coal-burning units is 

achievable. See EPA, “Ambient Air Quality Impact Report for Desert Rock Energy 

Facility PSD Permit,” at 8, attached hereto as Ex. 15. Thus, taking even the highest 

emission rate that EPA has set with no post-combustion control, that is 0.5 lbs./MMBtu 

and applying the 90% control from SCR, an emission limit of 0.05 lbs./MMBtu is clearly 

achievable. However, EPA could add a 40% “safety factor” and recommend that the 

limit be set at 0.07 lb/MMBtu. A review of the RACT/BACT/LAER clearinghouse 

demonstrates that numerous PSD permits for coal-burning boilers were issued during the 

“coal rush” of the first decade of this century with emission limits of 0.07 lbs./MMBtu. 

Towards the end of the coal rush, BACT was lowered to 0.05 lbs./MMBtu. EPA 

acknowledged, in setting BACT for the Desert Rock facility, that even 0.05 lbs./MMBtu 

involves a significant “safety factor.” In 2001, Babcock & Wilcox Company, in its 

paper, “How Low Can We Go”, attached hereto as Ex.16, said that 0.016 lbs./MMBtu 

was achievable for bituminous coal and 0.008 lbs./MMBtu for Powder River Basin coal. 

Because Minnesota’s ozone concentrations are close to exceeding the ozone 

NAAQS, Minnesota must revise its proposed I-SIP to more effectively address ozone 

concentrations. Because NOx emission limits (such as 0.07 lbs./hour) on EGUs are a cost 

effective and relatively easy way to reduce ozone, Minnesota should incorporate NOx

 
23

limits into its I-SIP. In addition, Minnesota needs to require further monitoring or 

modeling of ozone and ozone precursors to determine how to address its ozone levels. 

The information it receives from additional further monitoring and modeling should 

inform new limits on sources to ensure compliance with the NAAQS and avoid 

nonattainment designations for areas in Minnesota. 

D. The Draft Infrastructure SIP Fails to Ensure Attainment and 

Maintenance of the Primary NO2 NAAQS. 

As currently proposed, MPCA fails to address dangerous concentrations of NO2

and to demonstrate that the Draft I-SIP is sufficient to ensure attainment and maintenance 

of the 2010 NO2 NAAQS. In particular, Minnesota’s final I-SIP must include additional 

monitoring and enforceable NO2 emission limits with one-hour averaging periods that 

apply at all times to ensure that the 2010 NO2 NAAQS are attained and maintained.21 

 

In addition to the potentially dangerous levels of ozone in part resulting from NO2

emissions, a report recently established that Minnesota minority communities are 

exposed disproportionately to excessive and dangerous levels of NO2. See MPRNEWS, 

Study: Vehicle Pollution Greater in Minority Neighborhoods (Apr. 15, 2014), 

http://www.mprnews.org/story/2014/04/15/air-pollution-disparities. The study found that 

Minnesota ranked 15th in the nation for the largest exposure gap between whites and 

nonwhites. Id. Minnesota should be aggressive in reducing NOx exposure in these 

communities, including placing additional monitors in minority communities to gather 

further information to help mitigate exposure. Nationally the study found that “7,000 

heart disease deaths could be prevented each year among people of color, if they breathed 

the same lower nitrogen dioxide levels that white residents breathe.” Id. This I-SIP 

presents an ideal opportunity for Minnesota to take action to address the disproportionate 

adverse NO2 effects born by certain communities. MPCA should increase monitoring of 

NO2 in minority communities and address any exceedances discovered. Because the NO2

NAAQS based on a one-hour averaging time, all monitoring should be continuous. 

Additionally, MPCA must promulgate enforceable emission limits with one-hour 

averaging periods into its I-SIP in order to ensure attainment and maintenance of the 

NAAQS at all times on major sources. The Draft I-SIP does not include adequate onehour NO2 emission limitations, thus it fails to comply with CAA section 110(a)(2)(A). 

Minnesota’s I-SIP is meant to implement, maintain, and enforce the NAAQS and 

therefore must include “enforceable emission limitations” to ensure its effectiveness. 42 

U.S.C. § 7410(a)(2)(A). Accordingly, emissions limits must be accompanied by 

appropriate one-hour averaging times to meet the requirement of the primary NO2 

NAAQS, which sets a maximum one hour ambient NO2 concentration of 100 ppb, in 

order to assure compliance with the Act. 

 

21 As discussed above, coal-fired power plants that are large sources of NO2 pollution, which also 

contributes to ozone creation, currently lack emission limits sufficient to help attain and maintain 

the 2008 ozone NAAQS. If proper limits are selected, Minnesota will experience reductions in 

ozone and NO2 levels.
24

Minnesota must revise its I-SIP to include adequately stringent emission limits 

that address the short-term, more stringent one-hour NO2 NAAQS. As proposed, 

Minnesota’s Draft I-SIP fails to include measures that sufficiently demonstrate that it will 

comply with section 110(a)(2)(A), and therefore it cannot ensure the proper 

implementation, maintenance, and enforcement of the NO2 NAAQS as required by law. 

E. The Draft Infrastructure SIP Fails to Ensure Attainment and 

Maintenance of the Primary PM2.5 NAAQS. 

According to a fine particulate matter report issued by MPCA in 2013, data from 

several monitors in St. Paul showed that the three-year average of the daily 98th 

percentile concentration of PM2.5 pollution was approximately 34 μg/m3 in 2009 and 

2011, and 36 μg/m3 in 2010—in other words extremely close to or exceeding the 24-hour 

PM2.5 NAAQS. MPCA, Fine Particle Pollution, aq8-25 (June 2013), at 6, 

http://www.pca.state.mn.us/index.php/view-document.html?gid=19057. Yet another 

2013 report, this one to the state legislature, highlights the problem for the Twin Cities 

and Rochester, stating: “Minnesota currently meets the annual and daily standards for 

PM2.5 but is at risk for falling out of compliance.” MPCA Air Quality Report at 5. 

Clearly, maintaining the 24-hour PM2.5 NAAQS is a concern for parts of the state. 

Yet, MPCA Draft I-SIP for the PM2.5 NAAQS imposes no additional provisions to 

address the state’s “risk for falling out of compliance.” As currently proposed, MPCA 

fails to include enforceable emission limitations for sources of PM2.5 sufficient to ensure 

attainment and maintenance of the 2012 PM2.5 NAAQS. In particular, Minnesota’s final 

I-SIP must include enforceable PM2.5 emission limits with annual and twenty-four hour 

averaging periods that apply at all times. 

 

Several coal-fired boilers that are large sources of PM2.5 pollution in Minnesota, 

including Units 1 and 2 at Sherco Plant, and all units at Taconite Harbor Plant, lack 

modern particulate matter controls. Minnesota must ensure that the I-SIP has sufficient 

limits to attain and maintain the 2012 PM2.5 NAAQS. In order to comply with section 

110(a)(2)(A) of the Clean Air Act, the Minnesota Draft I-SIP must be amended to ensure 

these sources cannot cause exceedances of the 2012 PM2.5 NAAQS. 

Another significant source of particulate matter in Minnesota is mining. Silica 

sand mining for use in hydraulic fracturing activities is rapidly expanding through the 

southeastern part of the state – an activity that MPCA acknowledges creates fine 

particulate matter pollution. See Southeastern Minnesota Frac Sand Facilities Map at

http://www.dot.state.mn.us/ofrw/PDF/SE_MN_Frac_Sand_Facilities_DRAFT_021313.p

df. Monitoring data from the Tiller Sand Processing Facility just north of the Twin Cities 

shows ambient concentrations of PM2.5 that regularly reach 20 μg/m3, which is an 

extremely concerning contribution from a single source. Metals mining further north also 

generate significant levels of ambient PM2.5. According to the Supplemental Draft 

Environmental Impact Statement for a proposed mine in northern Minnesota, Polymet, 
25

the maximum modeled PM2.5 for the mine and its accompanying processing plant, would 

generate fine particulate emissions that, combined with background, come extremely 

close to both the annual and 24-hour PM2.5 NAAQS. See NorthMet Supplemental Draft 

Environmental Impact Statement (SDEIS), at 5-413, available at

http://dnr.state.mn.us/input/environmentalreview/polymet/index.html. 

MPCA must promulgate enforceable emission limits with adequate averaging 

periods into its I-SIP in order to ensure attainment and maintenance of the NAAQS at all 

times. In addition, the I-SIP must require monitoring of PM2.5 emission limits on a 

continuous basis using a continuous emission monitor system or systems. As the Draft ISIP does not include adequate annual or twenty-four-hour PM2.5 emission limitations, it 

fails to comply with CAA section 110(a)(2)(A). Minnesota’s I-SIP is meant to 

implement, maintain, and enforce the NAAQS and therefore must include “enforceable 

emission limitations” to ensure its effectiveness. 42 U.S.C. § 7410(a)(2)(A). As 

proposed, Minnesota’s Draft I-SIP fails to include measures that sufficiently demonstrate 

that it will comply with section 110(a)(2)(A), and therefore it cannot ensure the proper 

implementation, maintenance, and enforcement of the PM2.5 NAAQS as required by law. 

F. The Draft I-SIP fails to Include Measures that Ensure Compliance 

with Section 110(a)(2)(A) of the Act Regarding the 2010 NO2, 2010 SO2, 2008 

Ozone, and 2012 PM2.5 NAAQS.

The statutory and regulatory sections that MPCA incorporated into its Draft I-SIP 

are insufficient to ensure compliance with the 2010 NO2, 2010 SO2, 2008 ozone, and 

2012 PM2.5 NAAQS. Most striking is that none of the rules and regulations cited in 

Minnesota’s Draft I-SIP include any emission limits for the 2010 NO2, 2010 SO2, 2008 

ozone, and 2012 PM2.5 NAAQS. See generally Draft I-SIP. As discussed above, the 

modeling and other evidence Sierra Club has provided demonstrate that the limits 

currently in place are insufficient, and Minnesota is taking little to no action to address 

any NAAQS exceedances. It is clear that the standards contained within the Draft I-SIP 

were created for the less stringent, outdated NAAQS and must be revised to reflect the 

new standards. 

Further, the final I-SIP must not allow for ambient air incremental increases, 

variances, exceptions, or exclusions with regard to limits placed on sources of pollutants; 

otherwise, compliance with the 2010 NO2, 2010 SO2, 2008 ozone, and 2012 PM2.5

NAAQS cannot be assured. Minnesota’s rules allow exemptions from enforcement that 

undermine the programs meant to ensure attainment and maintenance with the NAAQS. 

See Draft I-SIP at 1-2. For instance, MPCA may grant variances from its rules under 

certain conditions. See Minn. Stat. § 116.07 subp. 5. The Minnesota Administrative 

Rules lay out variance procedures for the board or commissioner, see Minn. R. 

7000.7000, and contain an emergency provision that may allow violating sources to 

escape enforcement actions, see Minn. R. 7007.1850. These provisions undermine 

emission limits and other measures meant to attain and maintain the NAAQS. 
26

Additionally, Minnesota excludes numerous sources of emissions from its major 

permitting program, which allows these sources to emit pollution under fewer 

restrictions. For example, insignificant emissions are excluded from the potential-to-emit 

calculation. See Minn. R. 7007.0150 subp. 4A. Emissions from any oil or gas exploration 

or production wells (known sources of ozone precursors) cannot “be aggregated with 

emissions from similar units, whether or not such units are contiguous area or under 

common control, to determine whether such unites or stations are major sources.” Minn. 

R. 7007.0200 subp. 2A(2).. This means that many sources known to emit VOCs and 

other pollutants will not be regulated like major sources and can evade emission limits 

and other measures that help ensure the attainment and maintenance of the NAAQS. 

Minnesota also provides a long list of sources from which fugitive emissions are 

excluded from being counted towards their potential to emit, and thus allowing more 

sources to evade qualification as a major source subject to PSD permitting. See Minn. R. 

7007.0200 subp. 2B. These provisions and others not discussed in these comments 

undermine the efficacy of the I-SIP by permitting sources to evade enforcement and emit 

excess emissions. 

As a result of all of these inadequacies, exemptions, variances, and other 

shortfalls not listed in these comments, the Draft I-SIP cannot ensure that Minnesota will 

attain and maintain the 2010 NO2, 2010 SO2, 2008 ozone, and 2012 PM2.5 NAAQS. 

Minnesota must revise its I-SIP to include enforceable emission limits that address the 

exceedances shown by the monitor data and that otherwise address the 2010 NO2, 2010 

SO2, 2008 ozone, and 2012 PM2.5 NAAQS, and it must update its emission regulations to 

ensure that proper mass limitations and short term averaging periods are imposed on 

large sources of pollutants, including coal-fired power plants. 

G. The Draft Infrastructure SIP Fails to Address Sources Significantly 

Contributing to Nonattainment or Interference with Maintenance of the 

NAAQS in Downwind States. 

Minnesota must address interstate transport of Minnesota’s emissions that would 

contribute to exceedances or interfere with the maintenance of the NAAQS. Under 

section 110(a)(2)(D), a SIP must contain “adequate provisions (i) prohibiting . . . any 

source . . . from emitting any air pollutant in amounts which will—(I) contribute 

significantly to nonattainment in, or interfere with maintenance by, any other State with 

respect to any such national primary or secondary ambient air quality standard . . . .” 42 

U.S.C. § 7410(a)(2)(D)(i)(I); see also EPA v. EME Homer City Generation, No. 12-1182, 

slip op. at 14 (U.S. Apr. 29, 2014) (reiterating that this is a mandatory duty) [hereinafter 

“Homer City”]. Minnesota’s I-SIP, as proposed, fails to address any cross-state impacts 

that are due to sources within the state. See Draft I-SIP at 3. This is inadequate and 

should result in EPA disapproving the submittal. 

The Clean Air Act sets a mandatory duty for states to submit I-SIPs within three 

years of promulgation of a NAAQS. 42 U.S.C. § 7410(a)(1). Under CAA section 110, 

there is no prerequisite action required, such as EPA issuing guidance, before states must 
27

fulfill their mandatory duty. See Homer City at 14 (“the CAA sets a series of precise 

deadlines to which the States and EPA must adhere.”). MPCA cannot rely on the fact 

that EPA’s 2013 I-SIP Guidance does not address interstate transport provisions. See

Draft I-SIP at 3.22 This guidance directly contradicts the language of the Clean Air Act. 

Therefore, Minnesota must create a SIP to address Prongs 1 and 2 of the interstate 

provisions and provide the public with an opportunity to comment on it.23

Further, Minnesota must address interstate transport of Minnesota’s emissions 

that would contribute to exceedances or interfere with the maintenance of the NAAQS. 

Under section 110(a)(2)(D), a SIP must contain “adequate provisions (i) prohibiting . . . 

any source . . . from emitting any air pollutant in amounts which will—(I) contribute 

significantly to nonattainment in, or interfere with maintenance by, any other State with 

respect to any such national primary or secondary ambient air quality standard . . . .” 42 

U.S.C. § 7410(a)(2)(D)(i)(I). Minnesota’s Infrastructure SIP, as proposed, fails to 

address any cross-state impacts that are due to sources within the state. This is inadequate 

and should result in EPA disapproving the submittal. 

Minnesota cannot rely on the absence of nonattainment areas within the state for 

the pollutants addressed in this Draft I-SIP to determine whether it is contributing to 

nonattainment or interference with maintenance of the NAAQS in downwind states. See

Draft I-SIP at 3. Not having any area designated nonattainment in Minnesota for 2010 

NO2, 2010 SO2, 2008 ozone, and 2012 PM2.5 NAAQS does not prove that its sources, 

especially large sources such as coal plants, are not contributing to problems with the 

NAAQS attainment and maintenance in other states. Due to wind speed and topography, 

an emitting source’s pollution could simply be blowing over a state line, concentrating 

across the border in another state, and contributing to or interfering with maintenance of 

the NAAQS. Under this scenario, areas in Minnesota would never be designated 

nonattainment, but could still be contributing to nonattainment areas or interfering with 

the NAAQS in other states. 

In addition, Minnesota cannot rely on a FIP for Prevention of Significant 

Deterioration (“PSD”) and an approved nonattainment New Source Review (“NNSR”) 

 

22 The Supreme Court has resoundingly disapproved the belief that states cannot address the 

section 110(a)(2)(D)(i), the Good Neighbor provision, until EPA first calculates the budget of 

emissions and gives upwind states the opportunity to propose SIPs allocating those budgets 

among in-state sources before issuing a FIP. See Homer City, 696 F.3d 7, 37 (D.C. Cir. 2012), 

rev’d, No. 12-1182, slip op. at 27-28 (U.S. Apr. 29,2014) (stating “nothing in the statute places 

EPA under an obligation to provide specific metrics to States before they undertake to fulfill their 

good neighbor obligations” and finding the D.C. Circuit impermissably altered the clear deadlines 

in the Act).

23 Just as EPA has historically used air dispersion modeling in attainment designations and SIP 

revisions, so has the agency relied on modeling to assess cross-state impacts under the Act’s 

Good Neighbor provision—section 110(a)(2)(D)(i)(I). Under Clean Air Interstate Rule (“CAIR”) 

and the Cross-State Air Pollution Rule (“CSAPR”), as well as the 2003 NOx SIP Call, EPA has 

used modeling to determine pollutants’ cross-state impacts. Note that the D.C. Circuit court 

never questioned the agency’s use of modeling to assess cross-state impacts. See generally North 

Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).
28

permitting program to determine that Minnesota is not contributing to nonattainment or 

interference with maintenance of the NAAQS in downwind states. See Draft I-SIP at 3. 

Minnesota cannot rely on a FIP to satisfy any requirement of the I-SIP. EPA has said that 

states cannot rely on FIPs to satisfy any part of requirements of CAA section 110(a). See 

EPA I-SIP Guidance at 12-13 (stating that when a FIP addresses a gap in a SIP, “the EPA 

cannot give ‘credit’ for the FIP when determining whether an air agency has met any 

later obligations under these sections”). As EPA detailed in its guidance, a FIP is not a 

SIP and cannot be relied upon by the state to satisfy later requirements, such as those 

imposed in subsequent NAAQS. 

In addition, PSD and NSR programs only address new sources, thus old sources 

are never evaluated to determine if they are contributing to downwind states’ pollution. 

Additionally, the NNSR program only applies to nonattainment areas, which Minnesota 

does not have. Thus, Minnesota must still address whether it is contributing to 

nonattainment areas or interfering with the NAAQS in other states to satisfy its 

requirements under the Interstate Transport Provision.24

In light of the recent Homer City Supreme Court decision, MPCA should act 

quickly to address pollution that may be contributing to another state’s nonattainment or 

interfering with another state’s maintenance of the NAAQS. The Court’s decision means 

Minnesota must address its exceedances under its own volition, or EPA will be required 

to act instead. Even if CSAPR is fully implemented, Minnesota will still have to address 

the pollutants that are contributing to nonattainment or interference with the NAAQS that 

are not covered by CSAPR. Minnesota should take the opportunity now to place 

enforceable emission limits on large sources contributing to problems with the attainment 

and maintenance of the NAAQS in other states. MPCA must provide provisions in its 

proposed I-SIP to ensure that pollution from Minnesota is not preventing other states 

from attaining or maintaining the NAAQS. 

 

24 Just as EPA has historically used air dispersion modeling in attainment designations and SIP 

revisions, so has the agency relied on modeling to assess cross-state impacts under the Act’s 

Good Neighbor provision—section 110(a)(2)(D)(i)(I). Under Clean Air Interstate Rule (“CAIR”) 

and the Cross-State Air Pollution Rule (“CSAPR”), as well as the 2003 NOx SIP Call, EPA has 

used modeling to determine pollutants’ cross-state impacts. Note that the D.C. Circuit court 

never questioned the agency’s use of modeling to assess cross-state impacts. See generally North 

Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).
29

H. The Draft Infrastructure SIP Fails to Include Provisions for Adequate 

Personnel, Funding, and Authority. 

Section 110(a)(2)(E) requires that an I-SIP provide for adequate personnel, 

funding, and authority to implement the SIP. Despite claiming to have enough personnel, 

funding, and authority, see Draft I-SIP at 4, MPCA simply does not, as demonstrated by 

long overdue reissuance of permits under its Title V program. The Taconite Harbor 

Plant’s permit has been expired for a decade. See Taconite Harbor Permit No. 03100001-

08. And, the Boswell Plant has been expired for two years. See Boswell Permit No. 

0610004-07. MPCA regulations specify that the agency shall take final action on a 

permit reissuance within eighteen months. See Minn. R. 7007.0750 subp. 2C. Under the 

expired permits, these plants are allowed to exceed the 2010 SO2 NAAQS as 

demonstrated by the air dispersion modeling cited above. Because MPCA is unable to 

address these permits and potentially others within the allotted time, MPCA has failed to 

demonstrate it has enough funding, personnel, and authority to implement the SIP. As 

shown above, the delays in issuing the Taconite Harbor’s and Boswell’s permits and thus 

their operation under expired permits are allowing these plants to exceed the 2010 SO2

NAAQS. Thus, MPCA must revise the SIP to include more personnel, funding, and 

authority to implement the SIP.

I. The Draft Infrastructure SIP Fails to Include Proper Public 

Notification for Exceedances of the 2010 NO2, 2010 SO2, 2008 Ozone, and 

2012 PM2.5 NAAQS. 

Under section 110(a)(2)(J), an I-SIP must provide for public notification of 

exceedances of the 2010 NO2, 2010 SO2, 2008 ozone, and 2012 PM2.5 NAAQS. That 

section requires each state to satisfy section 127, which mandates that each SIP must 

contain provisions to effectively notify the public on a regular basis of instances or areas 

of primary NAAQS exceedances in any portion of the preceding calendar year. In 

addition, the state must “advise the public of the health hazards associated with such 

pollution . . . .” 42 U.S.C. §7427. Minnesota’s Draft I-SIP does not satisfy this provision. 

It says that a portion of the MPCA website is dedicated to enhancing public awareness of 

measures to prevent exceedances and also includes general public notice and comment 

procedures. See Draft I-SIP at 5-6. None of the provisions cited require the agency to 

notify the public of exceedances of the NAAQS. MPCA must provide specific 

procedures for notifying the public about NAAQS exceedances and revise its I-SIP to 

ensure that it complies with the requirements of section 110(a)(2)(J).25

 

25 In addition, Sierra Club disagrees that Minnesota can ignore its duty to address visibility 

requirements under Clean Air Act section 110(a)(2)(J). See Draft I-SIP at 5. The statute clearly 

states that each plan shall meet the requirements relating to visibility protection. See 42 U.S.C. § 

7410(a)(2)(J).
30

III. CONCLUSION 

The Draft I-SIP fails to ensure that 2010 NO2, 2010 SO2, 2008 ozone, and 2012 

PM2.5 NAAQS are attained and maintained, as described above. Minnesota must adopt 

new provisions into the I-SIP to protect public health and comply with the Act’s 

requirements. The Sierra Club would be happy to provide any other information that 

might assist Minnesota in evaluating the impacts of these sources and developing an ISIP in full compliance with the Clean Air Act. 

Respectfully submitted, 

 /s/Elizabeth Toba Pearlman 

x

Elizabeth Toba Pearlman 

Office of Elizabeth Toba Pearlman 

1523 27th Street, NW 

Washington, DC 20007 

(202) 643-4068 

etplaw@gmail.com 

 /s/Casey Roberts 

x

Casey Roberts 

Staff Attorney 

Sierra Club Environmental Law 

Program 

85 Second St., Second Floor 

San Francisco, CA 94105 

(415) 977-5710 

Casey.roberts@sierraclub.org 

On behalf of the Sierra Club 
Attachment 4: Response to Comments 

1. Minnesota’s draft Infrastructure State Implementation Plan (I-SIP) does not incorporate the new NAAQS 

Response: 

The MPCA is working on an Omnibus Air Rulemaking, which will update our rules to incorporate the new NAAQS. On 

September 17, 2012 notice was published in the State Register announcing the start of the rulemaking process and 

requesting comments. Details on this rulemaking can be found here: http://www.pca.state.mn.us/enzq146d. In the 

meantime, Minnesota must be in compliance with the new NAAQS, even if they have not yet been officially 

incorporated into the state rules. 

2. Minnesota’s draft I-SIP fails to include enforceable one-hour SO2 emission limits 

Response: 

Since the one-hour SO2 NAAQS promulgation, EPA has revised its approach to implementing the standard. Minnesota 

has been working with the EPA and following the most recent guidance provided to ensure compliance. The newest 

guidance document indicates that subject modeled sources will be required to implement any controls needed to 

ensure compliance by 2017. The background section of the proposed Data Requirements Rule for the 1-Hour Sulfur 

Dioxide (SO2) Primary National Ambient Air Quality Standard (NAAQS), published on May 13, 2014 (79 FR 27446) states 

“the EPA would not expect air agencies to submit substantive attainment demonstrations and emission limitations by 

June 2013 (as part of section 110(a) infrastructure plans) ..., but would expect those submittals to resemble more 

traditional infrastructure SIPs.” Minnesota intends to comply with these EPA requirements and guidance and will 

continue to work with the EPA in order to do so. 

Additionally, air quality monitoring shows that ambient SO2 concentrations in Minnesota are below the one-hour 

standard (Figure 1). 

Figure 1: One-hour SO2 concentrations as compared with NAAQS 

1-Hr Standard

0

10

20

30

40

50

60

70

80

2010 2011 2012 2013

Concentration (parts per billion)

Blaine Flint Hills Resources - 420 Flint Hills Resources - 423

Flint Hills Resources - 441 Flint Hills Resources - 442 Flint Hills Resources - 443

Minneapolis - Downtown Northern Tier Energy - 436
3. Minnesota’s draft I-SIP fails to ensure attainment/maintenance for ozone 

Response: 

The comment references the MPCA’s comments on potential future revisions to the ozone NAAQS made in the MPCA’s 

Air Quality in Minnesota: 2013 Report to the Legislature. The statement referenced provided context that while 

Minnesota was/is meeting the 2008 ozone NAAQS, future NAAQS revisions may result in Minnesota exceeding a lower 

NAAQS level. Since this I-SIP addresses existing NAAQS, and there is no requirement that the MPCA consider future 

potential NAAQS, the comment is outside of the scope of this SIP action. 

Air quality monitoring shows that ambient ozone concentrations in Minnesota are meeting the 2008 eight-hour ozone 

standard (Figure 2), which is the NAAQS addressed in this infrastructure SIP. 

To maintain and improve Minnesota’s air quality, the MPCA is also participating in the Ozone Advance program. As part 

of this program, the MPCA has submitted a plan to EPA that outlines actions we are taking and plan to take in order to 

maintain compliance with current and future NAAQS. Work in this area has been driving down emissions of volatile 

organic compounds (VOCs) (Figure 3). 

Figure 2: Eight-hour ozone concentrations as compared with NAAQS 

8-Hr Standard

40

45

50

55

60

65

70

75

80

2008 2009 2010 2011 2012 2013

Concentratino (parts per billion)

East Bethel Blaine Detroit Lakes Fon Du Lac

Brainerd Stanton Ely Marshall

Mille Lacs Rochester Voyageurs N.P. Duluth

Shakopee St. Cloud Stillwater Twp. St. Michael

8-Hr Standard
Figure 3: VOC emissions 

Note on 2011 data: MPCA is awaiting EPA’s next revision of the National Emissions Inventory before we can report this 

data. 

4. Minnesota’s draft I-SIP fails to ensure attainment/maintenance for NO2

Response: 

Air quality monitoring data shows that ambient air concentrations of NO2 are meeting the NAAQS (Figure 4) and 

Minnesota was designated attainment for NO2 as of February 17, 2012. The MPCA maintains four NO2 monitors, with a 

fifth site coming on-line in January 2015. The locations of all of these monitors are approved by the EPA. NO2

concentrations are expected to be highest in areas of high traffic; we therefore have a near-road monitor, which came 

online in January of 2013, in Minneapolis, along the busiest roadway segment in Minnesota. Although it is too soon to 

have data that can be compared to the NAAQS design values, the monitoring data for the first year indicate that the 98th

percentile daily maximum one-hour NO2 concentration at the near-roadway site was 58 ppb (Figure 5). This 

concentration is higher than at other monitoring locations but still below the NAAQS, although there is still insufficient 

data to make a full comparison with the NAAQS. As mentioned, a second near-road monitor will come on-line in January 

2015. The MPCA’s monitoring locations are determined in collaboration with EPA, in accordance with federal monitoring 

requirements, and are approved by EPA. 

In the 2010 NO2 NAAQS rulemaking, there were no requirements to include enforceable emissions limits in the 

infrastructure SIP submittal. Comments requesting such limits in this SIP action are beyond the scope of this submittal. 

0

100,000

200,000

300,000

400,000

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012

VOC Emissions (tons)

Point Onroad mobile Non-road equpiment Non-point
Figure 4: One-hour NO2 concentrations as compared with NAAQS 

Figure 5: 

1-Hr Standard

0

20

40

60

80

100

120

2010 2011 2012 2013

Concentration (parts per billion)

Blaine Flint Hills Resource - 420 Flint Hills Resources - 423

58

43 44

29

Standard

0

20

40

60

80

100

120

Near Roadway Blaine FHR 420 FHR 423

NO2 Concentration (ppb)

98th percentile daily maximum 1-hour NO2 concentration 

January 2013 - December 2013

Insufficient data to determine compliance with the NAAQS
5. Minnesota’s draft I-SIP fails to ensure attainment/maintenance of PM2.5

Response: 

On December 6, 2013 the MPCA submitted its recommendation to the EPA to designate all areas of the state as 

attainment for the 2012 PM2.5 NAAQS. Air quality monitoring shows that ambient concentrations of PM2.5 are below the 

level of the 2012 PM2.5 annual standard (Figure 6), which is the NAAQS addressed in this infrastructure SIP. Minnesota’s 

infrastructure SIP addressing the 24-hour PM2.5 standard was approved by EPA in 2012 (77 FR 65478). The EPA has not 

revised the 24-hour standard since 2006. Therefore, comments on the 24-hour PM2.5 NAAQS are outside the scope of 

this SIP submittal, though monitoring data shows that ambient concentrations are below the level of the 2006 PM2.5 24-

hour standard. Minnesota is also participating in the PM Advance Program. As part of this program, the MPCA has 

submitted a plan to EPA and is collaborating with it in working towards continued compliance with current and future 

NAAQS. 

Figure 6: Annual PM2.5 concentrations as compared with NAAQS 

 

6. Minnesota’s draft I-SIP fails to include measures that ensure compliance: MN state rules include variances and 

exceptions that mean that the state cannot ensure that the standards are met. 

Response: 

Minnesota is not aware of any instances in which its compliance with the NAAQS has been threatened by the variances 

and exceptions included in its rules. Minnesota monitors compliance with all the NAAQS, including those specifically 

addressed in this submittal. The inclusion of processes for certain variances and exceptions in state rules has not 

hampered Minnesota’s ability to meet these NAAQS. EPA has previously approved state rules containing such processes 

into Minnesota’s SIP. 

Annual Standard

0

2

4

6

8

10

12

14

2012 2013

Concentration (μg/m3

)

Blaine Apple Valley

Richfield Minneapolis-Phillips

Minneapolis-N Humboldt Ave St. Louis Park

Marshall Mille Lacs

Rochester St. Paul-Red Rock Road

St. Paul - Ramsey Health Center St. Paul - Harding H.S.

Virginia Duluth-WDSE

Duluth-Lincoln School Shakopee

St. Cloud
7. Minnesota’s draft I-SIP fails to address contribution to nonattainment/interference with maintenance in 

downwind states 

Response: 

At the time of the issuance of the EPA’s most recent I-SIP guidance and Minnesota’s publication of the draft I-SIP in the 

state register, the U.S. Supreme Court had not yet ruled on EPA v. EME Homer City Generation (the Cross-State Air 

Pollution Rule). At the time this draft I-SIP was public noticed, EPA guidance based on the most current case law 

indicated that states should await further instruction regarding Section 110(a)(2)(D)(i)(I) SIP obligations. 

The U.S. Supreme Court published its decision on EPA v. EME Homer City Generation on April 29, 2014 – three days prior 

to the close of the public comment period for this draft I-SIP. Interstate pollutant transport is an exceptionally 

complicated issue and Minnesota has not yet had a chance to develop a strategy to address this issue. The MPCA will 

work with EPA on a strategy to address Minnesota’s obligations under the Good Neighbor Rule based on this most 

recent ruling. 

8. The Minnesota Pollution Control Agency does not have adequate personnel, funding, or authority 

Response:

The MPCA feels that its air quality program is adequate to maintain compliance with the NAAQS. Minnesota has a 

performance partnership agreement with the EPA, which establishes the MPCA’s air quality program obligations and 

priorities. The agreement also defines EPA’s oversight role for Minnesota’s air quality program. 

9. Minnesota’s state rules fail to include requirements for public notification of exceedances 

Response: 

Minnesota is required to notify the public of any NAAQS exceedance resulting in a nonattainment designation as part of 

the area designation public notice process. Regarding the exceedance cited in the comment, MPCA notified the public 

through presentations and reports to the legislature. As required by the EPA, the MPCA publishes an Annual Air 

Monitoring Network Plan, which discusses any exceedances and is put on public notice for comment. Additionally, 

Minn. Stats. §116.011 and §115D.15 subd. 2 require that the MPCA report to the legislature on monitoring and 

emissions levels of air pollutants. Each requires a different report, submitted in alternate years. 

 
Attachment 5: Completeness Review 

A. Administrative Materials (40 CFR pt. 51, Appendix V, Part 2.1) 

The EPA’s Criteria for Determining the Completeness of Plan Submittals, published at 40 CFR part 51, Appendix V, 

requires states to provide the basic documents that show that the State has properly followed the administrative 

requirements called for by the CAA for the adoption of SIPs. The requirements, and how this SIP revision complies with 

these requirements, are discussed here: 

1) Formal Letter of Submittal: 

“A formal letter of submittal from the Governor or his designee, requesting EPA 

approval of the plan or revision thereof.”

Attached to this SIP revision request is a formal letter of submittal from the MPCA Commissioner, John Linc Stine, to the 

EPA Region V Administrator, Susan Hedman. The office of the Commissioner of the MPCA is statutorily created in 

Minnesota Statute § 116.03, subd. 1 (a). The Commissioner is appointed by the Governor, and the duties of the position 

include acting as the state agent to “apply for, receive, and disburse federal funds made available to the state by federal 

law or rule and regulations promulgated thereunder for any purpose related to the power and duties of the MPCA or the 

Commissioner. The Commissioner shall comply with any and all requirements of such federal law or such rules and 

regulations promulgated thereunder to facilitate application for, receipt, and disbursement of such funds.” Minn. Stat. § 

116.03 subd. 3. 

2) Evidence of State Adoption of Plan and Issuance of Orders in Final Form 

“Evidence that the State has adopted the plan in the State code or body of regulations; 

or issued the permit, order, consent agreement (hereafter ‘document’) in final form. 

That evidence shall include the date of adoption or final issuance as well as the effective 

date of the plan, if different from the adoption/issuance date.”

The rules and statutes documented in this submittal have previously been incorporated into Minnesota’s SIP. The 

submittal letter documents the rules and statutes to be incorporated into the SIP pending EPA approval. 

3) Legal Authority Documentation: 

“Evidence that the State has the necessary legal authority under State law to adopt and implement the plan.”

This SIP submittal documents the MPCA’s legal authority in addressing the requirements of Section 110(a)(1) of the 

Clean Air Act. 

4) Compliance with State Procedures: 

“Evidence that the state followed all of the procedural requirements of the State’s laws 

and constitution in conducting and completing the adoption/issuance of the plan.”

MPCA complied with all relevant state procedures for issuing the permit as well as the SIP revision. 

5) Public Notice: 

“Evidence that public notice was given of the proposed change consistent with the 

procedures approved by the EPA, including the date of the publication of the notice.”
The public notice for the SIP revision was published in the State Register on March 31, 2014 with the public comment 

period commencing on March 31, 2014 and ending on May 2, 2014. During the public comment period, a copy of the SIP 

revision was made available at the MPCA office located in St. Paul and on the MPCA’s website. A copy of the public 

notice is attached (Attachment 2).

6) Public Hearing Certification: 

“Certification that public hearing(s) were held in accordance with the information 

provided in the public notice and the State’s laws and constitution, if applicable.”

The public notice states: “A public information meeting will only be held if one is requested by 4:30 p.m. on Friday, May 

2, 2014. If such a meeting is requested, it will be held on Friday, May 9, 2014 at 10 a.m. at the MPCA St. Paul Office, 520 

Lafayette Road North, St. Paul, Minnesota 55155-4194. To find out if a public information meeting will be held, please 

contact Amanda Jarrett Smith at 651-757-2486 or amanda.smith@state.mn.us after Friday, May 2, 2014 at 4:30 p.m. 

The public information meeting, if one is requested, will provide information, receive public input, and answer questions 

about the proposed SIP revision. If the public information meeting is held, additional written comments on the proposed 

documents will be accepted until 4:30pm on Friday, May 23, 2014, following the same guidelines described above.”

No public meeting was requested. 

7) Public Comments and State Response: 

“Compilation of the public comments and State’s response thereto.”

MPCA received one comment letter in relation to this SIP action. The comment letter and MPCA’s response to it are 

included in Attachments 3 and 4, respectively. 

B. Technical Support: 

1) Pollutants Regulated: 

“Identification of all regulated pollutants affect by the plan.”

This infrastructure SIP submission addresses the 2012 particulate matter of less than 2.5 micrometers in diameter 

(PM2.5) NAAQS, the 2010 nitrogen dioxide (NO2) NAAQS, the 2010 sulfur dioxide (SO2) NAAQS, and the 2008 ozone 

NAAQS. 

2) Source Identification 

“Identification of the locations of affected sources including the EPA 

attainment/nonattainment designation of the locations and the state of the Attainment 

Plan for the affected area(s).”

Does not apply to this SIP submittal. 

3) Emissions Quantification: 

“Quantification of the changes in the plan; allowable emissions from the affected 

sources; estimates of changes in current actual emissions from affected sources or, 

where appropriate, quantification of the changes in actual emissions through 

calculations of the differences between certain baseline levels and allowable emissions 

anticipated as a result of the revision.”
Does not apply to this SIP submittal. 

4) NAAQS Protections: 

“The State’s demonstration that the NAAQS, prevention of significant deterioration 

increments, reasonable further progress demonstration, and visibility, as applicable, are 

protected if the plan is approved and implemented.”

The purpose of this SIP submittal is to demonstrate Minnesota’s ability to implement, maintain, and enforce the revised 

NAAQS. 

5) Modeling Information 

“Modeling information required to support the proposed revision, including input data, 

output data, models used, justification of the model selections, ambient monitoring 

data used, meteorological data used, justification for use of off-site data (where used), 

modes of models used, assumptions, and other information relevant to the 

determination of adequacy of the modeling analysis.”

Does not apply to this SIP submittal. 

6) Continuous Emission Reduction 

“Evidence, where necessary, that emission limitations are based on continuous emission 

reduction technology.”

Does not apply to this SIP submittal. 

7) Emission Level Assurance 

“Evidence that the plan contains emission limitations, work practice standards and 

recordkeeping/requirements, where necessary, to ensure emissions levels.”

The purpose of this SIP submittal is to demonstrate Minnesota’s ability to implement, maintain, and enforce the revised 

NAAQS. 

8) Compliance/Enforcement 

“Compliance and enforcement strategies, including how compliance will be determined 

in practice.”

The purpose of this SIP submittal is to demonstrate Minnesota’s ability to implement, maintain, and enforce the revised 

NAAQS. 

9) Special Economic and Technological Justifications: 

“Special economic and technological justifications required by any applicable EPA 

policies, or an explanation of why such justifications are not necessary.”

Does not apply to this SIP submittal.