## Minnesota Pollution Contro l Agency

520 Lafayette Road North I St. Paul, Minne s ota 55155

- 4194 1 651

- 296

- 6300

800-657-3864 I 65 1 -282-5332 T TY I www.pca

. sta t e .r n n.u s I E qu a l Oppo rtunit y Em p l oye r

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 (N0 2 ) and sulfur dioxide (S0 2 ) promulgated in 2010, ozone promulgated in 2008, and particulate matter less than 2.5 micrometers in
diameter (PM 2 .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 (N0 2 ) and sulfur dioxide (S0 2 ) promulgated in 2010, ozone promulgated in 2008, and particulate matter less than 2.5 micrometers
in diameter (PM 2

. 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 PM 2

. 5 and 2008 lead (Pb) NAAQS (for the state board requirements) and
the 2008 ozone, 2010 N0 2 , 2010 S0 2 , and 2012 PM 2

. 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

Enclosures1

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 (NO 2 ) and sulfur dioxide (SO 2 ), promulgated in 20 10 ; ozone, promulgated in 2008; and particulate matter less than 2.5 micrometers in diameter (PM 2.5 ), 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 re ducing 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 have2

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 auth ority 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 SO 2 NAAQS (Minnesota has no nonattainment or maintenance areas under the NO 2 , ozone, or PM 2.5 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 NO 2 , SO 2 , ozone, and PM 2.5 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 Re gion 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 NO 2 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. c h. 7007 contains the requirements of the MPCA’s permitting progra m, 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 mino r 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 NO 2 NAAQS. Since there are no nonattainment areas in the country for this pollutant, Minnesota’s NO 2 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 the4

state’s jurisdiction are no t 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 NA AQS 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 PM 2.5 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 NO 2 , SO 2 , ozone, or PM 2.5 . 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 Agencie s. 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
comp liance 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 Fee7

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 SO 2 , 2010 NO 2 , 2008 ozone, and 2012 PM 2.5 NAAQS

–

and for any other NAAQS for which EPA has not yet taken final action, e.g., the 2006 PM 2.5 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 organized8

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

sa nitary 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 participati on

. 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 SO 2 , 2010 NO 2 , 2008 ozone, 2006 and 2012 PM 2.5 , 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 handboo k 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 SO 2 , 2010 NO 2 , 2008 ozone, 2006 and 2012 PM 2.5 , 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 ReviewAttachment 1: Rules and Statutes for Incorporation into Minnesota’s State Implementation Plan1 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

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### 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

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### 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

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### 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

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### 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.

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### 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.

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### 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

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### 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

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### 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 NoticeMinnesota 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 (PM 2.5 ) NAAQS, the 2010 nitrogen dioxide (NO 2 ) NAAQS, the 2010 sulfur dioxide (SO 2 ) 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; fa x: 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 uponthe MPCA’s receipt of a written request. Additional materials relatin g 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.

A s 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 Cit izens’ 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 S tate 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 Micr osoft 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........................................................................................................ 128 5



### 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 ....................................................... 1296comments 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 (N AAQS) to demonstrate their continued ability to implement, maintain, and enforce the revised standards. This infrastructure SIP submi ssion addresses the 2012 particulate matter of less than 2.5 micrometers in diameter (PM 2.5 ) NAAQS, the 2010 nitrogen dioxide (NO 2 ) NAAQS, the 2010 sulfur dioxide (SO 2 ) 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 publi c 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 incorpora ted 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 qual ity programs such as monitoring, permitting, and modeling. Most of these requirements have already been submitted as part of the SI P.

However, Minnesota is submitting certain additional rules and statutes into the SIP to meet the Act’s requirements. The ne wly 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 Ac t. 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 pe riod. Following the end of the comment period, the Commissioner will decide whether to submit the proposed SIP revision to the EPA un less, 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 NoticesSt. 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, Minne sota 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 inform ation, 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 nu mber, 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 on ly 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 wr iting 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 propo sed 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 fro m 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 as sociated 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 NoticesAttachment 3 : Comments Received50 F Street, NW, Suite 800, Washington, DC 20001 TEL: (202) 675

- 2380 FAX: (202) 547

- 6009 www.sierraclub.org 

### V IA 

### E LECTRONIC 

### M AIL AND 

### U.S. M AIL



### 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 (“NO 2 

### ”) , sulfur dioxide (“SO 2 

### ”), 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 (“PM 2.5 

### ”) National Ambient Air Quality Standards (“NAAQS”) ( “D raft 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 PM 2.5 

### , 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 Mi nnesota 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 SO 2 

### and NO 2 

### , and 24-hour averaging time for PM 2.5 

### ; 3) Use SO 2 

### modeling to inform emission limits for the SO 2 

### NAAQS; 4) Require continuous emission monitoring for NO 2 

### , ozone, and PM 2.5 

### ; 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 μ g/m 3 

### of PM 2.5 

### 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 NO 2 

### standard; (2) the June 2, 2010 one-hour primary SO 2 

### standard; (3) the March 27, 2008 eight-hour primary ozone standard; (4) the January 15, 2013 primary annual PM 2.5 

### standard; and (5) the January 15, 2013 primary 24-hour PM 2.5 

### 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.environmental

initiative.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 NO 2 

### NAAQS, set at a level of 100 partsper 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 NO 2 

### 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 NO 2 

### 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 SO 2 

### 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 SO 2 

### NAAQS Rule”]. The primary SO 2 

### NAAQS was set at such a level in order to protect public health from the serious threats posed by short-term exposure to SO 2 

### , 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 SO 2 

### NAAQS Rule at 35,525-26. The health data relied upon by EPA in promulgating the new SO 2 

### 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 O 3 

### -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 ( μ m) in diameter, PM 2 .5 

### ). See National Ambient Air Quality Standard for Particulate Matter Final Rule, 78 Fed. Reg. 3,068 (Jan. 15, 2013). EPA lowered the primary PM 2.5 

### level to 12.0 micrograms per cubic meter ( μ g/m 3 

### ) and retain ed the 24-hour PM 2.5 

### standard at a level of 35 μ g/m 3



### . Id . at 3,068. Exposure to PM 2.5 

### has been linked to both mortality and morbidity from cardiovascular and respiratory diseases. Id . at 3,103. By strengthening the PM 2.5 

### 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 PM 2.5 

### - 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 NO 2 

### , SO 2 

### , ozone, and PM 2.5 

### exposure, the Minnesota Pollution Control Agency (“MPCA”) must properly implement the NO 2 

### , SO 2 

### , ozone, and PM 2.5 

### 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 b ecome 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 Terrestria l Climate Conditions,” Science, 2 Aug. 2013, Vol. 341, no. 6145, 486

- 492. Therefore, the benefit s 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, t he 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) (ex plaining 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)) (requir ing 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 t he 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 SO 2 

### 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 SO 2 

### 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 SO 2 

### 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 SO 2 

### 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 SO 2 

### 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 lan guage 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— se ction 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 NO 2 

### , 2010 SO 2 

### , 2008 Ozone, and 2012 PM 2.5 

### 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 NO 2 

### 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 SO 2 

### NAAQS imposes a new one-hour standard at a level of 196 micrograms per cubic meter (“ μ g/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 ( μ m) in diameter, PM 2.5 

### ) standard imposes a primary annual PM 2.5 

### level of 12.0 micrograms per cubic meter ( μ g/m3) and retain ed the 24-hour PM 2.5 

### standard at a level of 35 μ g/m 3



### . 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 NO 2 

### , 2010 SO 2 

### , 2008 ozone, and 2012 PM 2.5 

### NAAQS ). Moreover, the NO 2 

### and SO 2 

### 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 NO 2 

### , 2010 SO 2 

### , 2008 ozone, and 2012 PM 2.5 

### 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 NO 2 

### , 2010 one-hour SO 2 

### , 2008 eight-hour ozone, and 2012 annual and 24-hour PM 2.5 

### 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 SO 2 

### sources to ensure that areas not currently designated nonattainment will attain and maintain the new one-hour SO 2 

### 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 SO 2 

### NAAQS given the “strong source-oriented nature of SO 2 

### ambient impacts.”

### 12 Final SO 2 

### NAAQS Rule, 75 Fed. Reg. at 35,570. Nationally, large point sources account for 95 percent of SO 2 

### emissions, 66 percent of which come from fossil fuel combustion at electric facilitie s. Id . at 35,524. Specifically, in Minnesota, coal-fired electric generating units are responsible for 55 percent of all SO 2 

### emissions released in the State, or 40,792 tons in 2011. See SO 2 

### 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 SO 2 

### 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 SO 2 

### NAAQS. See Khanh Tran, AERMOD Modeling of SO 2 

### Impacts of the Minnesota Power Boswell Coal Plant (Oct. 6, 2011), [hereinafter “Boswell Report”], attached hereto as Ex. 5; Khanh Tran, AERMOD Modeling of SO 2 

### 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 SO 2 

### 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 SO 2 

### (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 SO 2 

### 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 Ma ps database) emissions to determine whether each plant could cause exceedances of the one-hour SO 2 

### 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 SO 2 

### 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 c lose 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 wa s consistent with all available technical guidance, including Appendix W and EPA’s March 2011 guidance for implementing the one-hour SO 2 

### NAAQS. Additionally, the modeler used the most recent version of AERMOD available at the time of the studies. Taco nite 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 SO 2 

### 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 SO 2 

### NAAQS, the I-SIP must limit the emissions from these sources and ensure that the maintenance and attainment of the SO 2 

### NAAQS. See generally Air Quality Designations for the 2010 Sulfur Dioxide (SO 2 

### ) Primary National Ambient Air Quality Standard, 78 Fed. Reg. 47,191 (Aug. 5, 2013), [hereinafter “Final 2010 SO 2 

### 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 monitor s that recorded exceedances of the NAA QS. See Final 2010 SO 2 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. S ierra 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 Facilit y Impact ( μ g/m 3 

### ) Background ( μ g/m 3 

### ) 10 

### Total Impact Facility Impact plus Background ( μ g/m 3 

### ) SO 2 

### NAAQS ( μ g/m 3 

### ) 11 

### Counties Impacted (Not

Designated Nonattainment)

Allowable 533.0 26.2 559.2 196.2 Boswell

Coal Plant Maximum 101.8 26.2 128.0 196.2 Itasca

Allowable 349.2 26.2 375.4 196.2 Hoot Lake Coal Plant Maximum 148.2 26.2 174.4 196.2 Otter Tail

Allowable 504.1 30.0 534.1 196.2 Sherco

Plant Maximum 191.6 30.0 221.6 196.2 Sherburne

Allowable 2,418.9 5.2 2,424.1 196.2 Taconite

Harbor Plant 12 

### Maximum 1,128.1 5.2 1,133.3 196.2 Cook & Lake 13



### 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 areno less stringent than the limits listed in Table 2, below, to achieve and maintain the onehour SO 2 

### 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 backgroun d 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 μ g/m 3 as follows: 75/0.3823 = 196.2 μ g/m 3

. 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 SO 2 allowable exceedance plume covers several sensitive recreation areas, includi ng the Sawbill Trail, Car l ton Peak, and Lake Superior Hiking Trail. See Taconite Harbor Report at 4, 9, Figure 4, and 10, Figure 5.
14 Sierra Club strongly agree s 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 SO 2 

### 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 plants 16 

### is currently authorized to cause exceedances of the one-hour SO 2 

### 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 SO 2 

### -emitting facilities), including the requirement to maintain compliance with the 2010 SO 2 

### 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 A dequ acy of Infrastructure SIPs and Ensuring Attainment and Maintenance of the SO2 NAAQS.

As outlined by EPA in the Final SO 2 

### NAAQS Rule, 75 Fed. Reg. at 35,551, air dispersion modeling is the best method for evaluating the short-term impacts of large SO 2 

### 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 SO 2 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 Plant 15 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 SO 2 

### 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 SO 2 

### 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 SO 2 

### sources to perform modeling as needed, to establish whether their current allowable emissions are causing or contributing to a violation of the 1-hour SO 2 

### NAAQS.

In addition, EPA has historically used modeling in determining attainment for the SO 2 

### standard. See e.g ., U.S. EPA , Implementation of the 1-Hour SO 2 

### 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 SO 2 

### Guideline Document, EPA noted that “for SO 2 

### attainment demonstrations, monitoring data alone will generally not be adequate,” U.S. EPA, 1994 SO 2 

### Guideline Document, [hereinafter “1994 SO 2 

### 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 SO 2 

### 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 Bl ack 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, s ubp

. 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. § 116 B. 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 SO 2 

### NAAQS rule simply built upon EPA’s historical practice of using modeling to determine attainment and nonattainment status for SO 2 

### NAAQS. In doing so, EPA properly recognized the “strong source-oriented nature of SO 2 

### ambient impacts,” and concluded that the appropriate methodology for purposes of determining compliance, attainment, and nonattainment with the new NAAQS is modeling. See Final SO 2 

### 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 SO 2 

### 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 SO 2 

### standard “could betteraddress several potentially problematic issues than would the narrower monitoringfocused approach discussed in the proposal for the SO 2 

### NAAQS, including the unique source-specific impacts of SO 2 

### emissions and the special challenges SO 2 

### emissions have historically presented in terms of monitoring short-term SO 2 

### 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 SO 2 

### NAAQS is attained and whether individual sources cause or contribute to a violation of the SO 2 

### 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 NO 2 

### , PM 2.5 

### , SO 2 

### , 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 SO 2 

### 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 SO 2 

### 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 SO 2 

### AERMOD dispersion modeling establishing significant contributions of SO 2 

### to the nonattainment and interference with the maintenance of the one-hour SO 2 

### NAAQS in New Jersey).

Despite EPA ’s position that for the one-hour SO 2 

### NAAQS modeling is the most accurate means of determining attainment with the NAAQS and MPCA’s prior reliance on modeling, Min nesota’s Draft I-SIP lacks SO 2 

### 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 SO 2 

### NAAQS. To comply with the Act’s obligations, Minnesota must include adequate emissions limits in its I-SIP

― that is, source-specific SO 2 

### emission limits that show no exceedances of the NAAQS when modeled.

iii. The Draft I-SIP Must Include Enforceable SO 2 

### 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 SO 2 

### 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 SO 2 

### NAAQS. For instance, in 2011, EP A 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 . . . SO 2 

### NAAQS . . . the permit needs to contain . . . SO 2 

### 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 SO 2 

### 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 SO 2 

### 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 SO 2 

### NAAQS, the I-SIP must require that SO 2 

### emissions are monitored from these sources during every hour of operation, regardless of whether SO 2 

### 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 SO 2 

### NAAQS. To ensure that all areas in Minnesota attain and maintain the one-hour SO 2 

### 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 SO 2 

### . 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 SO 2 

### 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 SO 2 

### 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 SO 2 

### limits on electric generating facilities in order to avoid contributing to nonattainment of the 1-hour SO 2 

### 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 SO 2 

### emissions, MPCA must amend the Draft I-SIP to ensure that large sources of SO 2 

### cannot cause exceedances of the one-hour SO 2 

### 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 (“NO x 

### ”) 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 theLegislature 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 Revie w 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 NO X 

### 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- effectiv ely 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 NO x 

### 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 lb s. /MMBtu and applying the 90% control from SCR, an emission limit of 0.05 lb s. /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 lb s. /MMBtu. Towards the end of the coal rush, BACT was lowered to 0.05 lb s. /MMBtu. EPA acknowledged, in setting BACT for the Desert Rock facility, that even 0.05 lb s. /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 lb s. /MMBtu was achievable for bituminous coal and 0.008 lb s. /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 NO x 

### emission limits (such as 0.07 lbs./hour) on EGUs are a cost effective and relatively easy way to reduce ozone, Minnesota should incorporate NO x

### 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 NO 2 

### NAAQS.

As currently proposed, MPCA fails to address dangerous concentrations of NO 2 

### and to demonstrate that the Draft I-SIP is sufficient to ensure attainment and maintenance of the 2010 NO 2 

### NAAQS. In particular, Minnesota’s final I-SIP must include additional monitoring and enforceable NO 2 

### emission limits with one-hour averaging periods that apply at all times to ensure that the 2010 NO 2 

### NAAQS are attained and maintained. 21



### In addition to the potentially dangerous levels of ozone in part resulting from NO 2 

### emissions, a report recently established that Minnesota minority communities are exposed disproportionately to excessive and dangerous levels of NO 2


### . See MPRNEWS, St udy: Vehicle Pollution Greater in Minority Neighborhoods (Apr. 15, 2014), http://www.mprnews.org/story/2014/04/15/air-pollution-disparities . The study found that Mi nnesota ranked 15th in the nation for the largest exposure gap between whites and nonwhites. Id. Minnesota should be aggressive in reducing NO x 

### exposure in these communi ties , including placing additional monitors in minority communities to gather fur th er 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 NO 2 

### effects born by certain communities. MPCA should increase monitoring of NO 2 

### in minority communities and address any exceedances discovered

. 

### Because the NO 2 

### NAAQ S 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 theNAAQS at all times on major sources. The Draft I-SIP does not include adequate onehour NO 2 

### 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 NO 2 

### NAAQS, which sets a maximum one hour ambient NO 2 

### 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 NO 2 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 NO 2 levels.

### 24 Minnesota must revise its I-SIP to include adequately stringent emission limits that address the short-term, more stringent one-hour NO 2 

### 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 NO 2 

### NAAQS as required by law.

E. The Draft Infrastructure SIP Fails to Ensure Attainment and Maintenance of the Primary PM 2 .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 PM 2.5 

### pollution was approximately 34 μ g/m 3 

### in 2009 and 2011, and 36 μ g/m 3 

### in 2010—in other words extremely close to or exceeding the 24-hour PM 2.5 

### 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 PM 2.5 

### but is at risk for falling out of compliance.” MPCA Air Quality Report at 5.

Clearly, maintaining the 24-hour PM 2.5 

### NAAQS is a concern for parts of the state. Yet, MPCA Draft I-SIP for the PM 2.5 

### 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 PM 2 .5 

### sufficient to ensure attainment and maintenance of the 2012 PM 2 .5 

### NAAQS. In particular, Minnesota’s final I-SIP must include enforceable PM 2 .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 PM 2 .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 PM 2 .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 PM 2 .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 PM 2.5 

### that regularly reach 20 μ g/m 3 

### , which is an extremely concerning contribution from a single source. Metals mining further north also generate significant levels of ambient PM 2.5


### . According to the Supplemental Draft Environmental Impact Statement for a proposed mine in northern Minnesota, Polymet,

### 25 the maximum modeled PM 2.5 

### 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 PM 2.5 

### 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 PM 2 .5 

### emission limits on acontinuous basis using a continuous emission monitor system or systems. As the Draft ISIP does not include adequate annual or twenty-four-hour PM 2 .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 PM 2.5 

### 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 NO 2 

### , 2010 SO 2 

### , 2008 Ozone, and 2012 PM 2.5 

### NAAQS.

The statutory and regulatory sections that MPCA incorporated into its Draft I-SIP are insufficient to ensure compliance with the 2010 NO 2 

### , 2010 SO 2 

### , 2008 ozone, and 2012 PM 2.5 

### 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 NO 2 

### , 2010 SO 2 

### , 2008 ozone, and 2012 PM 2.5 

### 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 NO 2 

### , 2010 SO 2 

### , 2008 ozone, and 2012 PM 2.5 

### 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, s ee 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. Th ese 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 NO 2 

### , 2010 SO 2 

### , 2008 ozone, and 2012 PM 2.5 

### 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 NO 2 

### , 2010 SO 2 

### , 2008 ozone, and 2012 PM 2.5 

### 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. S ee 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 NO 2 

### , 2010 SO 2 

### , 2008 ozone, and 2012 PM 2.5 

### 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 Neighb or provision, until EPA first calculates the budget of emiss i ons 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 -1 182, 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 al tered 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

— sect ion 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 NO x SIP Call, EPA has used modeling to determine pollutants’ cross

- state impacts. Note that the D.C. Circuit court

neve r 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 t he 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 NO x 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 SO 2 

### 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 SO 2 

### 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 NO 2 

### , 2010 SO 2 

### , 2008 Ozone, and 2012 PM 2.5 

### NAAQS

.
Under section 110(a)(2)(J), an I-SIP must provide for public notification of exceedances of the 2010 NO 2 

### , 2010 SO 2 

### , 2008 ozone, and 2012 PM 2.5 

### 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 additi on, 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 p rotection. See 42 U.S.C. § 7410(a)(2)(J).

### 30 III. CONCLUSION

The Draft I-SIP fails to ensure that 2010 NO 2 

### , 2010 SO 2 

### , 2008 ozone, and 2012 PM 2.5 

### 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 tha tmight 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 ClubAttachment 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 SO 2 emission limits Response: Since the one-hour SO 2 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 (SO 2 ) 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 SO 2 concentrations in Minnesota are below the one-hour standard (Figure 1).

Figure 1: One-hour SO 2 concentrations as compared with NAAQS

1

- Hr Standard

0 10 20 30 40 50 60 70 80

2010 2011 2012 2013Concentration (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 - 4363. 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
po tential 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 volatil e 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 2013Concentratino (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 StandardFigure 3: VOC emissions

Note on 2011 data: MPCA is awaiting EPA’s next revision of the N ational Emissions Inventory before we can report this data.

4. Minnesota’s draft I -SIP fails to ensure attainment/maintenance for NO 2 Response: Air quality monitoring data shows that ambient air concentrations of NO 2 are meeting the NAAQS (Figure 4) and Minnesota was designated attainment for NO 2 as of February 17, 2012

. The MPCA maintains four NO 2 monitors, with a fifth site coming on-line in January 2015. The locations of all of these monitors are approved by the EPA. NO 2 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 98 th percentile daily maximum one-hour NO 2 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 NO 2 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 2012VOC Emissions (tons)



## Point Onroad mobile Non-road equpiment Non-pointFigure 4: One-hour NO 2 concentrations as compared with NAAQS

Figure 5: 

### 1

- Hr Standard

0 20 40 60 80 100 120

2010 2011 2012 2013Concentration (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 423NO2Concentration (ppb) 

## 98th percentile daily maximum 1

- hour NO 2 

## concentration January 2013

- December 2013 Insufficient data to determine compliance with the NAAQS5. Minnesota’s draft I -SIP fails to ensure attainment/maintenance of PM 2.5 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 PM 2.5 NAAQS

. Air quality monitoring shows that ambient concentrations of PM 2.5 are below the level of the 2012 PM 2.5 annual standard (Figure 6) , which is the NAAQS addressed in this infrastructure SIP. Minnesota’s infrastructure SIP addressing the 24-hour PM 2.5 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 PM 2.5 NAAQS are outside the scope of this SIP submittal, though monitoring data shows that ambient concentrations are below the level of the 2006 PM 2.5 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 PM 2.5 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 2013Concentration (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. Cloud7. 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 f ail 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 fo rm. 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 Min nesota’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 inf ormation 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 (PM 2.5 ) NAAQS, the 2010 nitrogen dioxide (NO 2 ) NAAQS, the 2010 sulfur dioxide (SO 2 ) NAAQS, and the 2008 ozone NAAQS.

2) Source Identification

“Identification of the locations of affected sources including t he 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, prevent ion 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, inc luding 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 o n continuous emission reduction technology.”

Does not apply to this SIP submittal.

7) Emission Level Assurance

“Evidence that the plan contains emission limitati ons, 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.