UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 


REGION 8 


1595 Wynkoop Street 

DENVER, CO 80202-1129 

Phone 800-227-8917 

http://www.epa.gov/region08 

.." . ~ 20U 

Ref: 8P-AR 

Cris Miller 

Senior Environmental Project Administrator 

Basin Electric Power Cooperative 

1717 East Interstate A venue 

Bismarck, ND 58503-0564 

RE: Request for Information for Basin Electric's 

Leland Olds Station in North Dakota Pursuant to 

Section 1 14 0 f the Clean Air Act 

Dear Mr. Miller: 

The United States Environmental Protection Agency (EPA) hereby requires Basin 

Ele<.:tric Power Cooperative to provide cert'lin information relating to Leland Olds Station Unit 2, 

in Stanton, North Dakota. EPA made a previous request for this information directly to Basin 

Electric'$ consultant, Sargent & Lundy LLC. in a letter dated December 6. 2010. Sargent & 

Lundy LLC has requested two extensions to provide such information based in part on their need 

to obtain pemlission from Basin Electric to disclose documents they claim are subject to a 

confidentiality agreement. While EPA would be able to demonstrate Sargent & Lundy's legal 

obligation under the Clean Air Act (CAA), 42 U.S.C. *7414(a). to provide this information with 

the understanding that any confidentiality claims would be addressed per ~: nclosure 3. we arc 

under severe. legally mandated time constraints and are hence providing Basin Electric with the 

choice of either submitting the needed information directly or authorizing Sargent & Lundy to do 

so. The one exception is for item 7 on the following page. which requires a response directly 

from Basin Electric. 

EPA Region 8 is moving fonvard with the work needed to implement the Best Availahle 

Retrofit Technology (BART) requirements of the Regional Haze Rule (RHR), 40 C.F.R. 

§§51JO1, 5!J08(e), under a proposed Federal Implementation Plan (FIP) for Leland Olds 

Station Unit 2. See Section 11 O(c)(l) of the CAA, 42 U .S.C. §74! O(c)( I). As part of our effort 

to address these RHR requirements, EPA is requiring that Basin Electric provide the information 

detailed below. 

This inJormation request is issued Lmder Section 114(a) of thl:! CAA, 42 U.s.c. §7414(a). 

You are hereby required to respond to the following requests for information within the time 

periods specified. Please see Enclosure I for instructions and definitions. 
1. 	 Provide a copy of all conespondencc between Sargent & Lundy LLC and any selective 

catalytic reduction (SCR) technology system suppliers and/or catalyst suppliers regarding 

the feasibility and/or cost of SCR technology at Leland Olds Station Unit 2. 

2. 	 Provide all calculations, formulas, and methodologies, including fully functional 

electronic spreadsheet files, used to generate the costs presented in the Sargent & Lundy 

LLC letter to Basin Electric Power Cooperative dated May 27. 2009 on the subject of 

"BART Evaluation Update - Tail End SCR.'· 

3. 	 Provide a copy of all conespondence between Sargent & Lundy LLC and Basin Electric 

(or any other contractors working on behalf of Basi n Electric) regarding the solicitation 

and/or review of information from SCR technology system suppliers and/or catalyst 

suppliers about the feasibility and/or cost of SCR technology at I.cland Olds Station 

Unit 2. 

4. 	 Provide a copy of all documents reflecting any directions or instructions issued to 

Sargent & Lundy LLC regarding the solicitation andlor review of information fromSCR 

technology system suppliers and/or catalyst suppliers about the feasibility and/or cost of 

SCR technology at Leland Olds Station Unit 2. 

5. 	 Provide a copy of any additional documents, including, but not limited to. any documents 

generated by Sargent & Lundy L LC regarding information from SCR technology system 

suppliers and/or catalyst suppliers about the feasibility and/or cost of SCR technology at 

Leland Olds Station Unit 2. 

6. 	 Provide a copy of any and all documents relating in any way to Sargent & Lundy LLC's 

assessment of SCR as a potential control technology for Leland Olds Station Unit 2. 

7. 	 Provide a copy of any and all other documents relating in any way to Basin Electric's 

assessment of SCR as a potential control technology for Leland Olds Station Unit 2. 

You must submit, and/or authorize and ensure that Sargent & Lundy submits, the 

response to items t and 2 above postmarked by January 14,2010, and the response to the 

remainder of the items postmarked by January 28, 2010. Also, by January 12.2010, you 

must infoffi1 us, via email addressedto tallon.gmla ~pa.l!o •. who (Basin Electric or Sargent & 

Lundy or both) will be providing the response to each item above. We understand that Basin 

Electric and Sargent & Lundy LLC have been in communication regarding this request and 

expect that work is already unde[\.\>"ay. which forms part of the basis for our selection of these 

firm deadlines. Pursuant to Section 114 of the CAA. 42 U.S.C. §7414. and under authority duly 

delegated to the undersigned, you are required to provide us with the information specified in 

this letter. This information will be used by EPA in developing a regional haze FIP or, in the 

event North Dakota Department of Health (NDDH) undertakes revisions to the regional haze 

State Implementation Plan (SIP), in a'>sisting NDDH in that effort. and/or in reviewing a regional 

haze SIP for North Dakota. Information requests pursuant to Section 114 of the CAA are not 

2 

limited to sources that are regulated by the particular rule EPA is implementing. For example, 

Section 114(a)(l) says that EPA may gather infonnation from any person "who owns or operates 

any emission source" or "who the Administrator believes may have information necessary for 

the purposes set forth in this subsection:' Please submit your response to this letter to: 

U.S. Environmental Protection Agency. Region 8 

Office of Partnerships and Regulatory Assistance (8P-AR) 

1595 Wynkoop Street 

Denver, Colorado 80202-! 129 

Attention: Gail Fallon 

Your response to this requested infonnation must be certified by a duly authorized officer 

or agent of Basin Electric Power Cooperative by signing the enclosed Statement of 

Certification (see Enclosure 2) and returning it with your response. All infonnation submitted 

in response to this request must be certified as true. coneeL accurate. and complete by an 

individual with sufficient knowledge and authority to make such representations on behalf of 

Basin Electric. 

A knowing submittal of false information in response to this request may be actionable 

under Section 1l3(c)(2) o[the CAA, as well as 18 U.S.C. §~1001 and 1341. Basin Electric 

should also be aware that a failure to comply fully with the terms of this request may subject it to 

an enforcement action under Section 113 of the CM, 42 U.s.c. §7413. 

This letter in no way affects the obligations of Basin Electric to comply with other local, 

State and Federal laws and regulations. In addition. nothing in this letter shall be construed to be 

a waiver by EPA of any rights or remedies under the eAA. 

Pursuant to Section lI4(c) of the CAA. 42 U.s.C. §7414(c), and 40 C.P.R. Part 2, 

Subpart B, Basin Electric is entitled to assert a business confidentiality claim covering any part 

of the submitted information. Enclosure 3 specil1es the assertion and substantiation requirements 

for business confidentiality claims. Failure to assert such a claim makes the submitted 

information subject to public disclosure upon request and without further notice to you, pursuant 

to the Freedom of [nfornlation Act, 5 U.S.c. Section 552. Information subject to a business 

confidentiality claim may only be made available to the public in accordance \'lith 

40 C.F.R. Part 2, Subpart B . 

. The requirements of this letter are not subject to the Papenvork Reduction Act of 1980. 

44 U.S.C. §3501 el seq. 

3 

We appreciate your cooperation in this matter. If you have any questions please call 

Gail Fallon of my staff' at 303-312-6281. 

Enclosures: 

1. Instructions and Detinitions 

2. Statement of Certification 

3. Confidential Business Information 

cc: 	 Tom Bachman. NDDH 

John Bunyak, NPS 

Sandra Silva. USFWS 

Thomas Dzomba, USFS 

Sincerely, 

! 

Slerhen S. Tuber 

Assistant Regional Administrator 

Office of Partnerships and Regulatory Assistance 

4 

ENCLOSURE 1 


INSTRUCTIONS 


1. 	 Provide a separate narrative response to each question and subpart of a question set forth 

in the Information Request. 

2. 	 Precede each answer with the number of the question to which it corresponds and at the 

end of each answer identify theperson(s) that provided information that was used or 

considered in responding to that question. as well as each person that was consulted in the 

preparation of that response. 

3. 	 Indicate on each document produced in response to this Infomlation Request. or in some 

other reasonable manner, the number of the question to which it corresponds. 

4. 	 When a response is provided in the form of a number, specify the units of measure of the 

number in a precise manner. 

5. 	 Where documents or information necessary for a response are neither in your possession 

nor available to you, indicate in your response why such documents or information is not 

available or in your posse:;sion and identify any source that either possesses or is likely to 

possess such information. 

DEFINITIONS 

All terms used in this Request for Information will have their ordinary meaning unless 

such terms are defined in the Act, 42 U.S.c. §7401,40 C.F.R. Part 52, or other Clean Air Act 

implementing regulations. 

I. 	 The terms "document" anJ "documents" shall mean any object that records. stores, or 

presents infomlation, and includes writings, memoranda, records. or infomation of any 

kind, fomal or informal, whether wholly or partially handwritten or typed. whether in 

computer fomal. memory. or storage device, or in hardcopy, including any form or 

format of'these. If in computer format or memory, each such document shall be provided 

in translation to a fom useable and readable by EPA, with all necessary documentation 

and support. All documents in hard copy should also include attachments to or 

enclosures with any document. 

2. 	 The tem "correspondence" shall mean any document that conveys infonnation between 

the persons identified in the question. 

3. 	 The terms "you" or "Basin Electric" shall mean Ba~in Electric Power Cooperative, and its 

officers. partners, managers, t:mployees. contractors, trustees, successors, predecessors, 

assigns, and agents. 
----------------

ENCLOSURE 2 

STATEMENT OF CERTIFICATION 

I eCI1ify under penalty of law that I have personally examined and am familiar with the 

information submitted in this document and all attachments and that, based on my inquiry of 

those individuals immediately responsible for obtaining the information, I believe that the 

information is true, accmate, and complete. I am aware that there are signijjcant penalties for 

submitting false information, including the possibility of fine or imprisonment. 

(Signature) 

(Title) 

(Date) 
ENCLOSURE 3 

Confidential Business Information (CBI) 

Assertion and Substantiation Requirements 

a. Assertion Requirements 

You may assert a business confidentiality claim covering all or part of the information 

requested in the attached letter, as provided in 40 C.F .R. §2.203(b). To make a confidentiality 

claim. submit the requested information and indicate that you are making a claim of 

confidentiality. Any docW11cnl over which you make a claim of confidentiality should be 

marked by placing on or attaching to the information, at the time it is submitted to the United 

States Environmental Protection Agency (U.S. EPA), a cover sheet, stamped or typed legend, or 

other suitable form of notice employing language such as "trade secret" or "proprietary" or 

"company confidential" and a date, if any, when the information should no longer be treated as 

confidential. Information covered by such a claim will be disclosed by the U.S. EPA only to the 

extent permitted and by means of the procedures set forth in Section 114(<.:) of the Clean Air Act 

(CAA). and 40 C.F.R. Part 2. Allegedly confidential portions of otherwise non-confidential 

documents should be clearly identified. U.S. EPA will construe the failure 10 furnish a 

confidentiality claim with your response to the attached letter as a waiver of that claim, and the 

information may be made available to the public without further notice to you. 

Please segregate personnel, medical and similar files from your responses and include 

that information on separate sheet(s) marked as "Personal Privacy Information" given that 

disclosure of such information to the general public may constitute an invasion of privacy. 

b. Substantiation Requirements 

All confidentiality claims are subject to U.S. EPA verification and must be made in 

accordance with 40 C.F.R. 92.208 which provides in part that you satisfactorily shov,,' that you 

have taken reasonable measures to protect the confidentiality or the information and that you 

intend to continue to do so and that the information is nOI and has not been reasonably obtainable 

by legitimate means without your consent. 

Pursuant to 40 C.F.R. Part 2, Subpart B, C.S. EPA may at any time send yo\.l a letter 

asking you to substantiate fully your CBl claim. If you receive such a let1er, you must provide 

U.S. EPA with a response within the number of days set forth in the U.S. EPA request letter. 

You may seek an extension of the response period specified in the letter. Except in extraordinary 

circumsran<.:es, no extension will be approved. Failure to submit your comments within that time 

would be regarded as a waiver of your confidentiality claim or claims, and U.S. EPA may release 

the information. U.S. EPA will ask you to specify whi<.:h portions of the information you 

consider confidential. You must be specific by page, paragraph, and sentence when 

identifying the information subject to your claim . Any information not specifically identified 

as subject to a confidentiality claim may be disc losed to the requestor wi thout further notice to 

YOLI. for each item or class ofinfonnation that you identify as being subjccllo CBl. C.S. EPA 
will ask you to answer the following questions, giving as much detail as possible: 

l. 	 For what period of time do you request that the information be maintained as 

confidential, c.g., until a certain date, until the occurrence of a speci lied event. or 

permanently? If the occurrence of a specilic event will eliminate the need for 

conlidentiality, please specify that event. 

2. 	 lnforrnation submitted to U.S. EPA becomes stale over time. Why should the 

information you claim as contidential be protected for the time period specified in 

your answer to question # I? 

3. 	 What measures have you taken to protect the information claimed as confidential? 

Have you disclosed the information to anyone other than a governmental body or 

someone who is bound by an agreement not to disclose the information further? 

If so, why should the information still be considered confidential? 

4. 	 Is the information contained in any publicly available material such as the 

Internet, publicly available databases. promotional publications, anllllal reports, or 

articles? Is there any means by which a member of the public could obtain access 

to the information? Is the information of a kind that you would customarily not 

release to the public? 

5. 	 Has any governmcntal body made a dctermination as to the confidentiality of the 

information'? Ifso, please attach a copy of the dctermination. 

6. 	 For each category of information claimed as contidential, explain with speciticilY 

why release of the information is likely to cause substa'1tial harm to your 

competitive position. Explain the specific nature of those harmful effects. why 

they should be viewed as substantiaL and the causal relationship bet\vccn 

disclosure and such harmfhl effects. How could your competitors make use of 

this information to your detriment? 

7. 	 Do you assert that the information is submitted on a voluntary or a mandatory 

basis? Please explain the reason for yoW" assertion. If you assert that the 

information is voluntarily submitted information, explain whether and \vhy 

disclosure of the information would tend to lessen the availability to U.S. EPA of 

similar information in the future. 

8. 	 Any other issue you deem relevant (including, if pertin·:nL reasons why you 

believe that the information you claim to be CI:3J is not emission or effluent data.) 

Please note that emission data provided under Section 114 of the CAl\, 42 eSc. 97414, 

is not entitled to confidential treatment under 40 C.F.R . Pm1 2. "Emission data" means, with 

reference to any source of emission of any substance into the air: 

2 
(a) Information necessary to determine the identity, amount, frequency. concentration, or 

other characteristics (to the extent related to air quality) of any emission which has been 

emitted by the source (or of any pollutant resulting from any emission by the source), or 

any combination of the foregoing; 

(b) Infonnation necessary to determine the identity, amount, frequency, concentration, or 

other characteristics (to the extent related to air quality) of the emissions which, under an 

applicable standard or limitation, the Source was authorized to emit (including, to the 

extent necessary for such purposes, a description of' the manner and rate of operation of 

the s0urce); and 

(c) A general description of the location and/or nature of the source to the extent 

necessary to identify the source and to distinguish it from other sources (including, to the 

extent necessary for such purposes, a description of the device. installation, or operation 

constituting the source). 40 C.F.R. §§2.30 1(a)(2)(i)(A), (B) and (C) 

If you receive a request for a substantiation letter from the EPA, you bear the burden of 

substantiating your confidentiality claim. Conclusory allegations will be given link or no weight 

in the determination. In substantiating your eBI claim(s), U.S. EPA will require you to bracket 

all text so claimed and mark it "CBl." Information so designated will be disclosed by U,S , EPA 

only to the extent allowed by, and by means of the procedures set forth in, 40 C.F.R. Pat12, 

Subpart B. If you fail to claim the infOlmation as confidential, it may be made available to the 

public without further notice to you, 

3