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EPA APPROVED GUAM NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES—Continued 

Name of SIP provision Applicable geographic or 

nonattainment area 

State 

submittal 

date 

EPA approval date Explanation 

Appendix H: Diffusion model 

computer printout.

State-wide ............................... 8/14/1973 10/19/1978, 43 FR 48638 ....... Revision to original SIP. See 

40 CFR 52.2673(c)(1). 

Appendix J: Minutes and letters of public hearing on 

compliance schedules.

State-wide ............................... 8/14/1973 10/19/1978, 43 FR 48638 ....... Revision to original SIP. See 

40 CFR 52.2673(c)(1). 

Appendix K: Inventory data for 

1973.

State-wide ............................... 8/14/1973 10/19/1978, 43 FR 48638 ....... Revision to original SIP. See 

40 CFR 52.2673(c)(1). 

[FR Doc. 2015–03178 Filed 2–17–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2010–0406; FRL–9922–80– 

OAR] 

Approval and Promulgation of 

Implementation Plans; North Dakota; 

Regional Haze State Implementation 

Plan; Federal Implementation Plan for 

Interstate Transport of Pollution 

Affecting Visibility and Regional Haze; 

Reconsideration 

AGENCY: Environmental Protection 

Agency. 

ACTION: Notice of final action on 

reconsideration. 

SUMMARY: On April 6, 2012, 

Environmental Protection Agency (EPA) 

published a final rule partially 

approving and partially disapproving a 

North Dakota State Implementation Plan 

(SIP) submittal addressing regional haze 

submitted by the Governor of North 

Dakota on March 3, 2010, along with 

North Dakota’s SIP Supplement No. 1 

submitted on July 27, 2010, and SIP 

Amendment No. 1 submitted on July 28, 

2011. The Administrator subsequently 

received a petition requesting EPA to 

reconsider its approval of certain 

elements of North Dakota’s regional 

haze SIP. Specifically, the petition 

raised several objections to EPA’s 

approval of the State’s best available 

retrofit technology (BART) emission 

limits for nitrogen oxides (NOX) for 

Milton R. Young Station (MRYS) Units 

1 and 2 and Leland Olds Station (LOS) 

Unit 2. On March 15, 2013, EPA 

announced its decision to reconsider its 

approval of the State’s NOX BART limits 

for these facilities. In the same action, 

EPA proposed to affirm its prior 

approval of these elements of North 

Dakota’s SIP. As a result of this 

reconsideration process, EPA has 

concluded that no changes are 

warranted to its 2012 approval of the 

NOX BART limits for these units. 

DATES: This final action is effective 

March 20, 2015. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2010–0406. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard-copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop St., Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8:00 a.m. to 4:00 p.m., excluding 

federal holidays. 

FOR FURTHER INFORMATION CONTACT: Gail 

Fallon, Air Program, U.S. 

Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop Street, Denver, Colorado, 

80202–1129, (303) 312–6281, 

Fallon.Gail@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. Today’s Action 

A. Issue for Which Reconsideration Was 

Granted 

B. Basis for Today’s Final Action 

III. Issues Raised by Commenters and EPA’s 

Responses 

A. Comments on Technical Feasibility of 

SCR 

B. Comments on Emission Limits for SNCR 

C. Comments on Application of MRYS 

BACT Court Ruling to Other Units 

1. Application of MRYS BACT to LOS Unit 

2 

2. Application of MRYS BACT to Coyote 

D. Comments on Visibility Benefits 

E. Comments on Legal Issues 

1. BACT versus BART Determinations 

2. Consideration of the Presumptive NOX

BART Emissions Limit 

3. Collateral Estoppel 

4. EPA versus State Authority 

5. Scope of Reconsideration Action 

F. Comments Generally in Favor of Our 

Proposal 

G. Comments Generally Against Our 

Proposal 

IV. Statutory and Executive Order Reviews 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

• The word Act or initials CAA mean 

or refer to the Clean Air Act, unless the 

context indicates otherwise. 

• The initials ASOFA mean or refer to 

advanced separated overfire air. 

• The initials BACT mean or refer to 

best available control technology. 

• The initials BART mean or refer to 

best available retrofit technology. 

• The initials EPA or the words we, 

us or our mean or refer to the United 

States Environmental Protection 

Agency. 

• The initials FIP mean or refer to 

Federal Implementation Plan. 

• The initials LOS mean or refer to 

Leland Olds Station. 

• The initials MRYS mean or refer to 

Milton R. Young Station. 

• The initials NDDH mean or refer to 

the North Dakota Department of Health. 

• The words North Dakota and State 

mean the State of North Dakota unless 

the context indicates otherwise. 

• The initials NOX mean or refer to 

nitrogen oxides. 

• The initials NPS mean or refer to 

the National Park Service. 

• The initials NSR mean or refer to 

new source review. 

• The initials PRB mean or refer to 

the Powder River Basin. 

• The initials PSD mean or refer to 

prevention of signification deterioration. 

• The initials SCR mean or refer to 

selective catalytic reduction. 

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Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations 8551 

1Although in the April 6, 2012 final rule we 

characterized our action as being an approval of 

part of SIP Amendment No. 1, on further review 

EPA’s position is that we acted on the entirety of 

SIP Amendment No. 1 in our April 2012 final rule. 

This submittal included regional haze plan 

revisions for Coyote Station, additions to SIP 

Appendix C.4 for MRYS, and documentation 

pertaining to the State’s public participation 

process and consultation with the Federal Land 

Managers. The materials that North Dakota 

submitted for incorporation into Appendix C.4 

constitute supporting documentation relevant to its 

NOX BACT determination for MRYS and related 

litigation. Therefore, EPA took the only appropriate 

action on Appendix C.4: to incorporate the 

provided information as supporting documentation 

relevant to the State’s NOX BART determinations 

for MRYS and LOS. 

2United States v. Minnkota Power Cooperative, 

Inc., 831 F. Supp. 2d 1109 (D.N.D. 2012). 

3North Dakota v. EPA, 730 F.3d 750 (8th Cir. 

2013), cert. denied, 134 S. Ct. 2662 (2014). The 

court’s ruling mostly upheld EPA’s final decisions, 

including our disapproval for Coal Creek Station, 

but vacated our Coal Creek Federal Implementation 

Plan (FIP) on the grounds that we failed to consider 

existing controls. EPA remains obligated to 

promulgate a FIP or approve a SIP revision for Coal 

Creek. 

4Among other things, EPA’s BART Guidelines, 

codified at 40 CFR part 51, appendix Y, describe a 

set of steps for determining BART. CAA section 

169A(b)(2) requires that BART be determined 

pursuant to the BART Guidelines for power plants 

with a total generating capacity over 750 megawatts. 

With respect to other BART sources, the BART 

Guidelines reflect EPA’s interpretations regarding 

certain key principles related to BART, including 

the two principles described in the text. For 

reference, the generating capacities for MRYS and 

LOS are 794 megawatts and 656 megawatts, 

respectively. 

• The initials SIP mean or refer to 

State Implementation Plan. 

• The initials SNCR mean or refer to 

selective non-catalytic reduction. 

• The initials TIFI mean or refer to 

targeted in-furnace injection. 

I. Background 

On April 6, 2012, EPA published a 

final rule partially approving and 

partially disapproving a North Dakota 

SIP submittal addressing regional haze 

submitted by the Governor of North 

Dakota on March 3, 2010, along with 

North Dakota’s SIP Supplement No. 1 

submitted on July 27, 2010, and SIP 

Amendment No. 1 submitted on July 28, 

2011.1 77 FR 20894. We gave the history 

of the North Dakota regional haze 

rulemaking process that preceded 

today’s final action in the April 6, 2012 

rule. 77 FR at 20895–20897. Following 

our April 6, 2012 final rule, the 

Administrator received petitions for 

reconsideration from North Dakota, 

Great River Energy (the owner of Coal 

Creek Station), and Earthjustice on 

behalf of environmental groups. Parallel 

lawsuits were also filed by these parties. 

On March 15, 2013, EPA published a 

notice of proposed rulemaking initiating 

the reconsideration of our approval of 

the State’s NOX BART determination 

and limits for MRYS Units 1 and 2 and 

LOS Unit 2. In that notice, we proposed 

to affirm our prior approval of the 

determination and limits. We did not 

grant reconsideration of, or request 

comment on, any other provisions of the 

final rule. 

Our action was prompted by a June 4, 

2012 petition for reconsideration 

submitted by Earthjustice on behalf of 

the National Parks Conservation 

Association and the Sierra Club. The 

petition requested that EPA reconsider 

its approval of the State’s NOX BART 

determinations for MRYS Units 1 and 2 

and LOS Unit 2. The petition asserted 

that the environmental groups were 

unable to raise their objections to EPA’s 

reliance on a December 21, 2011 U.S. 

District Court decision 2 during the 

comment period because of the timing 

of that decision, and that their 

objections are of central relevance to 

EPA’s final rule because EPA relied on 

the district court decision in explaining 

the basis for its final rule. 

Issues raised in the other two 

petitions for reconsideration from North 

Dakota and Great River Energy were 

addressed in a decision on the parallel 

lawsuits issued by the United States 

Court of Appeals for the Eighth Circuit 

on September 23, 2013.3 The court set 

aside the issues raised in the 

Earthjustice lawsuit, pending EPA’s 

action on the June 2012 petition for 

reconsideration. 

We requested comments on our 

March 15, 2013 proposed 

reconsideration and provided a twomonth comment period, which closed 

on May 14, 2013. At the request of the 

North Dakota Department of Health 

(NDDH), we provided a public hearing 

on May 15, 2013. To allow for a full 30- 

day public comment period for the 

submission of additional comments 

following the public hearing, we 

extended the comment period to June 

17, 2013. 

We received a significant number of 

comments on our proposed 

reconsideration action. Many 

comments, primarily from state and city 

agencies, rural power cooperatives, and 

industrial facilities and groups, 

supported our proposed affirmation of 

our approval of the State’s 

determinations for the units in question. 

Many comments from citizens and 

environmental groups were critical of 

our proposed action. 

In this action, we are responding to 

the timely comments we have received, 

taking final action on our 

reconsideration, and explaining the 

bases for our action. We did not 

consider and are not responding to any 

comments received after the close of the 

extended comment period on June 17, 

2013. Our March 15, 2013 proposed rule 

provides additional background 

information on the December 21, 2011 

district court decision and on our 

rationale for this reconsideration. 

II. Today’s Action 

A. Issue for Which Reconsideration Was 

Granted 

EPA granted the petition to reconsider 

our approval of the State’s NOX BART 

emission limits for MRYS Units 1 and 

2 and LOS Unit 2. After reconsideration 

of these matters, we are finalizing our 

approval of the emission limits. We did 

not reconsider or request comment on 

any other provisions of our final rule 

issued on April 6, 2012, in which we 

partially approved and partially 

disapproved the North Dakota regional 

haze SIP. 

B. Basis for Today’s Final Action 

We have fully considered all 

significant comments on our proposal 

and have concluded that no changes 

from our proposal are warranted. Our 

action is based on an evaluation of 

North Dakota’s SIP submittals against 

the regional haze requirements at 40 

CFR 51.300–51.309 and Clean Air Act 

(CAA) sections 169A and 169B. All 

general SIP requirements contained in 

CAA section 110, other provisions of the 

CAA, and our regulations applicable to 

this action were also evaluated. The 

purpose of this action is to ensure 

compliance with these requirements. 

Our authority for action on North 

Dakota’s SIP submittals is based on CAA 

section 110(k). 

As discussed in our rationale for our 

proposed decision to affirm our prior 

approval, two critical principles from 

our BART Guidelines are relevant to 

this situation. See 78 FR at 16454– 

16455. The first is that as part of a BART 

analysis, states may eliminate 

technically infeasible control options 

from further review. The second is that 

states generally may rely on a recent 

best available control technology 

(BACT) determination for a source for 

purposes of determining BART for that 

source.4 Considered in light of the facts 

of this matter, those principles support 

our decision to affirm our prior 

approval. 

Our BART Guidelines indicate that 

states may generally consider recent 

BACT determinations to be BART 

without further analysis. Here, as 

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5The associated BART limits are 0.36 lb/MMBtu 

for MRYS Unit 1, 0.35 lb/MMBtu for MRYS Unit 

2, and 0.35 lb/MMBtu for LOS Unit 2, on a 30-day 

rolling average basis. The SIP contains separate 

limits for MRYS Units 1 and 2 during startup of 

2070.1 and 3995.6 pounds per hour, respectively, 

on a 24-hour rolling average basis. See SIP section 

7.4.2, p. 74. 

6See 40 CFR 51.308(f) requirements for 

comprehensive periodic revisions of 

implementation plans for regional haze. 

7February 27, 2012 letter from Ken Jeffers, 

Johnson Matthey to Callie Videtich, EPA Region 8. 

See docket EPA–R08–OAR–2010–0406–0322. 

discussed below in more detail, the 

State’s BART determinations were 

developed at approximately the same 

time as its BACT determination for one 

of the facilities, a decision which was 

upheld by a U.S. district court. Based on 

these facts, we consider it appropriate to 

approve the State’s selection of selective 

non-catalytic reduction (SNCR) plus 

advanced separated overfire air 

(ASOFA) controls as BART at MRYS 

Units 1 and 2 and LOS Unit 2.5 As we 

noted in our proposal, evaluations of 

technical feasibility often change over 

time. In the future, North Dakota may 

reach a different conclusion about the 

technical feasibility of selective catalytic 

reduction (SCR) controls at these plants 

as part of, for example, a reasonable 

progress analysis. The regional haze 

program requires additional reasonable 

progress reviews every ten years to 

ensure that states make progress toward 

the visibility goal of the CAA.6

Therefore, we expect that North Dakota 

will reassess the technical feasibility of 

SCR controls at these plants as part of 

a future reasonable progress analysis. 

III. Issues Raised by Commenters and 

EPA’s Responses 

A. Comments on Technical Feasibility 

of SCR 

We received numerous comments on 

our proposal regarding the technical 

feasibility of SCR for cyclone boilers 

burning North Dakota lignite. Many of 

the comments supported the conclusion 

that SCR is technically feasible for these 

types of boilers. Regardless of EPA’s 

position regarding the technical 

feasibility of SCR for the units in 

question, the Minnkota Power court’s 

ruling in our challenge to the State’s 

BACT determination suggests that this 

is an issue on which reasonable minds 

may differ. Based on the terms of an 

April 24, 2006 consent decree settling 

an enforcement case for MRYS, if EPA 

disagreed with the State’s BACT 

determination, EPA had the burden of 

demonstrating to the court that North 

Dakota’s BACT determination was 

unreasonable. EPA did disagree with 

North Dakota’s BACT determination and 

challenged that determination in federal 

district court. In its December 21, 2011 

decision, however, the court concluded 

that EPA had not shown that North 

Dakota’s determination was 

unreasonable. Because the criteria for 

determining the technical feasibility of 

a control technology are essentially 

identical for both BART and BACT, as 

discussed in our prior final rule at 77 FR 

20897, we consider it appropriate to 

take the federal district court’s ruling on 

that BACT determination into account 

in our assessment of North Dakota’s 

regional haze SIP. 

In our review of a BART 

determination in a regional haze SIP, 

EPA’s task is to determine whether the 

State acted reasonably and in 

accordance with the requirements of the 

CAA and our regulations. We have 

accordingly reviewed North Dakota’s 

SIP based on the record before the State 

at the time of its decision to determine 

whether it acted reasonably in 

concluding that SCR is technically 

infeasible for MRYS and LOS. As noted 

above, the December 21, 2011 Minnkota 

Power ruling suggests that North Dakota 

was not clearly unreasonable in 

deciding that SCR could not be used on 

these units. This decision, along with 

the discussion in the BART Guidelines 

indicating that technically infeasible 

options may be eliminated and that 

states may generally rely on recent 

BACT determinations in making their 

BART decisions, forms the basis for our 

approval of North Dakota’s BART 

determinations for these two facilities. 

Were EPA making the BART 

determination in the absence of the 

factors present here, we would not 

eliminate SCR from consideration based 

on technical infeasibility. Given the 

basis for our decision, however, we do 

not consider comments regarding the 

technical feasibility of SCR to be 

relevant to our decision regarding the 

reasonableness of North Dakota’s BART 

determination. Therefore, we generally 

are not summarizing or responding to 

these comments. However, we are 

responding to comments that may be 

relevant to other aspects of this action. 

Comment: Environmental groups 

commented that EPA should consider 

SCR’s technical feasibility in light of 

more recent developments such as the 

Electric Power Research Institute’s 

(EPRI) research and operating 

experience gained with Texas lignite. 

The EPRI research described by the 

commenters relates to work simulating 

catalyst fouling using chemical kinetic 

modeling. Preliminary results from this 

research were presented at conferences 

in 2012 and 2013. The commenters also 

noted that SCR has been successfully 

used at Oak Grove Units 1 and 2 and 

Sandow Unit 4, which burn Texas 

lignite. While there was very little 

experience with SCR at the Texas plants 

at the time of North Dakota’s BACT 

determination for MRYS, the 

commenters note that the technology 

has now been in operation for about 

three years at the Texas plants, 

exceeding the catalyst’s guaranteed 

lifetime. The Texas plants’ catalyst was 

supplied by Johnson Matthey Catalysts, 

the same company that (after the State’s 

BART determination) offered to 

guarantee SCR on North Dakota lignite 

with standard industry performance and 

lifetime catalyst guarantees.7

Commenters point to EPA’s BART 

Guidelines to assert that ‘‘technical 

feasibility changes over time as 

technologies evolve,’’ and that EPA 

therefore cannot rely on the Minnkota 

Power decision given more recent 

technological developments. 

Response: We do not agree that EPA 

should take these recent developments 

into account at this late date. In this 

matter the BACT and BART 

determinations by the state occurred 

relatively close to each other in time: 

North Dakota’s regional haze public 

comment period closed in January 2010, 

while the BACT determination was 

finalized in November 2010, and North 

Dakota’s public comment period on its 

SIP Amendment No. 1 ended on March 

12, 2011. Therefore, the State could 

reasonably assert that at the time of its 

BART determination, no material new 

technologies would have arisen since its 

BACT determination. Similarly, our 

review of the BART determination was 

made at close to the same time that the 

district court reached its decision, on 

much the same record. And while (as 

noted elsewhere in this notice) we do 

not view the Minnkota Power decision 

as binding or determinative, we do view 

it as relevant to our consideration of this 

matter. 

It is true that the EPA generally has 

discretion, in its CAA rulemaking 

decisions, to take advantage of the 

greater knowledge that may result from 

receiving additional information. See 

Michigan v. Thomas, 805 F.2d 176, 185 

(6th Cir. 1986) (‘‘At no time should an 

agency be estopped from using its 

increased expertise.’’). But EPA also has 

the legal responsibility to complete CAA 

actions without unreasonable delay. See 

CAA section 304(a). Here, the 

developments cited by the commenters 

occurred after the state’s BACT and 

regional haze decision processes, and 

for the most part after the Minnkota 

decision as well. As a general matter, 

the Agency does not consider it 

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Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations 8553 

8Two companies, Haldor Topsoe, Inc. and 

CERAM Environmental, Inc. would require pilotscale testing in order to offer any guarantee 

regarding SCR catalyst life. See SIP Appendix C.4 

(EPA–R08–OAR–2010–0406–0013, pdf pp. 388 and 

p. 392), January 13, 2010 letter from Wayne Jones 

to Robert Blakley, and January 13, 2010 email from 

Noel Rosha, CERAM to Robert Blakley. Another 

vendor, Alstom Power, stated that despite many 

challenges a properly designed system fueled by 

North Dakota lignite could employ SCR. See SIP 

Appendix C.4 (EPA–R08–OAR–2010–0406–0011, 

pdf p. 159), May 30, 2007 letter from Michael G. 

Phillips, Alstom, to Robert Blakley, Burns and 

McDonnell. In our view this statement was so 

overlaid with conditions and qualifications that it 

was not unreasonable for the State to choose not to 

rely on it. 

9The Johnson Matthey offer came after the close 

of the State’s comment period and thus was not 

available to the State when it made its BACT and 

BART decisions. 10See docket EPA–R08–OAR–2010–0406–0364. 

11PerNOxide is a technology involving a two-step 

process. Hydrogen peroxide is injected between the 

economizer and air preheater to oxidize nitrogen 

oxide in flue gas to nitrogen dioxide and higherorder oxides. These oxides are then removed in 

downstream wet scrubbers, such as those installed 

on MRYS and LOS. See docket EPA–R08–OAR– 

2010–0406–0415, attachment 3, Technical 

Comments of Bill Powers, P.E. 2013–06–17, p. 30. 

12Prairie Public News, Minnkota says new 

method of reducing emissions ‘promising,’ Dave 

Thompson, August 12, 2013. http://

news.prairiepublic.org/post/minnkota-says-newmethod-reducing-emissions-promising. 

appropriate to perpetually restart the 

BART rulemaking process to consider 

late-breaking technological 

developments, or else we would seldom 

be able to finalize an action. 

Accordingly, under the facts present 

here, and in light of the district court’s 

Minnkota decision, in our judgment 

there is no need to alter our decision in 

light of these recent developments. 

Comment: Commenters stated that 

EPA should consider a performance 

guarantee for SCR catalysts on units 

burning North Dakota lignite provided 

by Johnson Matthey Catalysts, LLC. 

Commenters argued that since the 

district court relied heavily on the 

absence of vendor guarantees in 

upholding the State’s determination of 

technical infeasibility, EPA cannot rely 

on the court’s reasoning since a 

guarantee is now available. 

Response: Regardless of EPA’s 

position on the technical feasibility of 

SCR for MRYS Units 1 and 2 and LOS 

Unit 2, we acknowledge that throughout 

the development of the BACT and 

BART determinations for these units, 

other parties contested the feasibility of 

SCR on these high-temperature cyclone 

boiler units burning high-sodium North 

Dakota lignite. The State gave great 

weight to the fact that it did not receive 

any catalyst vendor guarantees. As 

noted by commenters on our 

reconsideration action, however, no 

catalyst vendors have stated that SCR 

would be technically infeasible at these 

units,8 and one (Johnson Matthey 

Catalysts, LLC) would offer ‘‘SCR 

catalyst designs with reasonable 

operating lifetime performance 

guarantees for service in a low-dust or 

tail-end SCR configuration’’ 9 absent 

additional field testing. Most of this 

information, with the exception of the 

Johnson Matthey offer, was in the BACT 

record and thus was before the court at 

the time of the December 21, 2011 court 

decision. And while the Johnson 

Mathey offer is interesting, it is hardly 

decisive. Considering the abundance of 

information that was already in the 

BACT record in December 2011, it is 

unlikely that the court would have 

reached a different conclusion based 

only on the addition of the Johnson 

Matthey offer, particularly in light of the 

fact that two other equally reputable 

vendors would not provide guarantees. 

As noted in our BART Guidelines, ‘‘we 

do not consider a vendor guarantee 

alone to be sufficient justification that a 

control option will work.’’ Id. 40 CFR 

part 51, appendix Y, section IV.D, 

step 2. 

Accordingly, based on the unique 

circumstances here, and taking into 

consideration the district court’s 

decision, we are affirming our approval 

of the State’s MRYS and LOS BART 

decisions, which are based on a recent 

BACT decision. In finalizing our 

approval, we note that North Dakota 

provided an explanation for its 

conclusions that a federal court found 

reasonable. We will continue to foster 

efforts among the interested parties for 

additional testing to resolve any 

outstanding uncertainty regarding the 

feasibility of SCR technology for these 

units. In a December 20, 2011 letter,10

North Dakota expressed openness to 

continuing discussions with EPA 

concerning further testing and 

evaluation of SCR technology involving 

North Dakota lignite coal. Such testing 

in the field would analyze the technical 

feasibility of SCR for North Dakota 

lignite at these cyclone units in a lowdust or tail-end configuration. The 

existing installation of SNCR should not 

preclude such efforts. We acknowledge 

that in a subsequent letter on July 18, 

2014, North Dakota stated that based on 

the Minnkota Power ruling it no longer 

believes testing is a reasonable 

approach. However, technological 

advances elsewhere may yet provide 

compelling information to drive further 

testing on North Dakota lignite or negate 

the need for such testing. As noted 

above, we expect that North Dakota will 

reassess the technical feasibility of SCR 

controls at these plants as part of a 

future reasonable progress analysis. 

B. Comments on Emission Limits for 

SNCR 

Comment: Commenters stated that 

MRYS and LOS can achieve more 

stringent emission limits with SNCR 

and ASOFA than those approved by 

EPA. The commenters assert that, in 

combination with SNCR and ASOFA, 

technologies currently in use at MRYS 

and LOS, namely CyClean and Targeted 

In-Furnace Injection (TIFI) technology, 

respectively, allow these units to 

achieve emission limits much lower 

than the BART emission limit 

previously approved by EPA. The 

commenters also suggested that 

PerNOxide 11 and hybrid SCR–SNCR are 

other feasible technology options that 

should be considered to improve on the 

performance of NOX emissions controls 

at MRYS and LOS. Commenters assert 

that if EPA had a valid basis for 

rejecting conventional SCR as BART, it 

would have to consider the emission 

reductions that SNCR can achieve in 

conjunction with other cost-effective 

controls. 

Response: CyClean and TIFI were not 

identified as technically feasible NOX

control options in the State’s SIP. Nor 

were they the subject of comments 

during EPA’s review, and ultimate 

approval, of the BART determinations 

for MRYS and LOS. As detailed above 

in response to another comment, EPA is 

assessing the reasonableness of the 

State’s determination based on the 

record before the State at the time. 

Accordingly, we do not find that a 

review of these technologies is 

appropriate for this reconsideration 

action. Moreover, we note that these 

technologies are intended primarily to 

provide operational benefits, such as 

improved efficiency and reduced 

slagging and fouling, and that NOX

emissions reductions are only 

sometimes a co-benefit of these 

operational changes. In particular, there 

is some question whether CyClean at 

MRYS is consistently effective in 

reducing NOx emissions.12

Furthermore, as the commenters point 

out, PerNOxide was not commercially 

available at the time of the BACT or 

BART determinations. It would 

therefore not be reasonable for EPA to 

now disapprove the SIP in this 

reconsideration on the basis that the 

State did not select the PerNOxide 

technology. It may, however, be 

appropriate for North Dakota to consider 

this technology in the next planning 

period as a reasonable progress measure. 

Regarding hybrid SCR–SNCR, this 

technology too was not previously 

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13North Dakota Department of Health, 

Preliminary Best Available Control Technology 

Determination for Control of Nitrogen Oxides for 

M.R. Young Station Units 1 and 2, Table 1, page 18, 

June 2008, SIP Amendment No. 1. See docket EPA– 

R08–OAR–2010–0406–0039. 

14Les Allery et al., Demonstrated Performance 

Improvements on Large Lignite-Fired Boiler with 

Targeted In-Furnace Injection Technology at 7, 

presented at COAL–GEN 2010, Aug. 10–12, 2010, 

Pittsburg, PA, available at http://www.ftek.com/

media/en-US/pdfs/TPP-592.pdf. See docket EPA– 

R08–OAR–2010–0406–0419, attachment 6. 

15SIP, Appendix C.1, BART Determination Study 

for Leland Olds Station Unit 1 and 2, Basin Electric 

Power Cooperative, Final Draft, Table 1.2–2—Coal 

Parameters, p. 8. 

identified, and so its review is not 

appropriate for this reconsideration 

action. Even so, there is no evidence 

that the technical feasibility of hybrid 

SCR–SNCR in relation to catalyst 

poisons would be any greater than that 

of conventional SCR. This is 

particularly true because in the hybrid 

system, in order to take advantage of the 

ammonia slip from the SNCR, the induct SCR is located in the high-dust 

position, where it is most vulnerable to 

catalyst poisoning. We also note that the 

installation of the SCR–SNCR 

technology is rare, and we are not aware 

of any cyclone boilers that are currently 

employing this technology. 

C. Comments on Application of MRYS 

BACT Court Ruling to Other Units 

1. Application of MRYS BACT to LOS 

Unit 2 

Comment: Commenters argued that 

the BACT limits for MRYS units should 

not apply to LOS Unit 2. The 

commenters highlighted their 

disagreement with EPA’s position as 

stated in the final rule, ‘‘it [LOS] is the 

same type of boiler burning North 

Dakota lignite coal [as MRYS], and 

North Dakota’s views regarding 

technical infeasibility that the U.S. 

district court upheld in the MRYS 

BACT case apply to it as well.’’ 78 FR 

16455. The commenters contended that 

EPA cannot rely on the BACT 

determination for MRYS to determine 

BART for LOS Unit 2 given critical 

differences between the two facilities. 

The commenters claimed that these 

critical differences include the facts that 

LOS Unit 2 co-fires Powder River Basin 

(PRB) coal and lignite coal with lesser 

amounts of alleged SCR catalyst 

poisons; has been increasing the amount 

of PRB coal that it fires over time; can 

be modified to fire even greater 

quantities of PRB coal, up to 100%, 

completely eliminating the lignite fuel 

quality claims; and, unlike MRYS, is 

equipped with TIFI to reduce slagging 

and NOX emissions. 

Response: EPA disagrees that there 

are critical differences between the units 

in question at MRYS and LOS that 

would have a material bearing on the 

technical feasibility of SCR. These units 

have much in common. They are of the 

same design (cyclone firing) and similar 

size (in particular, MRYS Unit 2 at 517 

MW and LOS Unit 2 at 440 MW). MRYS 

and LOS both burn primarily North 

Dakota lignite coal, which produces ash 

high in catalyst poisons (principally, 

sodium and potassium oxides). While 

MRYS burns lignite coal from the Center 

Mine, and LOS burns lignite coal from 

the Freedom Mine, these mines are 

located within about 40 miles of one 

another and produce lignite coals of 

similar quality. 

Regarding catalyst poisons, the 

commenters cited average amounts of 

sodium and potassium oxides in the 

MRYS ash of 5.6% and 1.0%, 

respectively.13 Similarly, the 

commenters cited average amounts of 

sodium and potassium oxides in the 

LOS ash of 2.94% and 0.73%, 

respectively.14 However, the sodium 

and potassium oxides amounts in the 

LOS ash given in the State’s SIP, 7.55% 

and 1.20%, respectively,15 are higher 

than that suggested by the commenters, 

and even higher than that for MRYS, 

thus undermining the commenters’ 

argument that there is a critical 

difference in the amount of catalyst 

poisons involved. 

On the matter of the ability of LOS to 

co-fire PRB sub-bituminous coal, though 

PRB coal does contain lesser amounts of 

catalyst poisons, there is no evidence 

that it has been, or will be, fired in 

quantities significant enough to alter 

North Dakota’s determination of the 

feasibility of SCR at LOS. As noted in 

comments submitted by NDDH, the 

amount of PRB coal fired at LOS 

averaged 11.3% between 2003 and 2012, 

with a minimum of 6.5% in 2004 and 

a maximum of 16.5% in 2005. These 

levels of PRB coal would only 

marginally lower the amount of catalyst 

poisons in the fuel fired at LOS. Also, 

when considering this ten-year history, 

there is no indication that the 

percentage of PRB coal burned at LOS 

is trending upward. Indeed, the highest 

proportion of PRB coal burned at LOS 

occurred in 2005. In addition, because 

MRYS and LOS are of similar design, 

there is no reason to conclude that the 

ability to co-fire PRB coal is wholly 

unique to LOS. That is, the ability of 

LOS to burn PRB coal does not present 

a critical difference between the units. 

Finally, the commenters have not 

established how the application of TIFI 

is pertinent in relation to SCR 

feasibility. The commenters do not 

present any evidence regarding how 

TIFI may affect the amount of catalyst 

poisons in the ash, or any other 

parameter, that relates to SCR 

feasibility. 

In short, the commenters have not 

identified any critical differences 

between the coal fired at LOS and that 

fired at MRYS as it pertains to the 

technical feasibility of SCR as assessed 

by the State. To the extent that 

differences do exist, the commenters 

have not shown that these differences 

are extensive enough to alter the 

assessment of SCR feasibility at LOS. If, 

as found by the district court, it was 

reasonable for the State to conclude that 

catalyst poisons in the ash at MRYS 

cause SCR to be technically infeasible, 

then undoubtedly the same reasoning 

extends to LOS, where the State’s SIP 

record indicates that even higher 

amounts of poisons were present. 

2. Application of MRYS BACT to Coyote 

Comment: One commenter stated that 

EPA should conduct additional 

evaluation of NOX emissions for Coyote 

Station. The commenter noted that 

because Coyote is equipped with a lime 

spray dryer and fabric filter, even fewer 

fine aerosol particles, including sodium 

fumes, would be emitted into a potential 

tail-end SCR, and the potential for 

catalyst poisoning would be even less 

than for LOS and MRYS. The 

commenter argued that EPA based its 

conclusion in favor of approving the 

State’s selection of only SNCR for 

Coyote on the incorrect premise that 

Coyote is so similar to LOS and MRYS 

that the BACT decision for MRYS 

supersedes a determination of what 

appropriate controls would be under the 

reasonable progress provisions of the 

regional haze rule. 

Response: This comment is outside 

the scope of this reconsideration action, 

as it pertains to a facility other than 

MRYS or LOS. 

D. Comments on Visibility Benefits 

Comment: We received several 

comments discussing the greater 

visibility benefit of SCR compared to 

SNCR and asserting that this justified 

disapproving the State’s BART 

determinations for SNCR at MRYS Units 

1 and 2 and LOS Unit 2. 

Response: As noted in other 

responses, technical comments 

addressing the merits of SCR over SNCR 

are essentially irrelevant since we are 

basing our decision on the fact that the 

State’s BART determination is 

supported by its BACT determination 

for MRYS, and on our view that it is 

appropriate to consider a federal court’s 

ruling on our challenge to the State’s 

BACT determination. We nonetheless 

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16North Dakota also conducted modeling 

according to the BART Guidelines, which provides 

the visibility benefit information that EPA used in 

our original proposal analyses. 

17See docket EPA–R08–OAR–2010–0406–0418. 

18Since SCR is eliminated from consideration 

based on technical infeasibility, SNCR becomes the 

most stringent technically feasible control option. 

19 In making BART determinations, section 

169A(g)(2) of the CAA requires that states consider 

the following factors: (1) The costs of compliance; 

(2) the energy and non-air quality environmental 

impacts of compliance; (3) any existing pollution 

control technology in use at the source; (4) the 

remaining useful life of the source; and (5) the 

degree of improvement in visibility which may 

reasonably be anticipated to result from the use of 

such technology. 

agree with commenters that SCR is a 

more effective control technology for 

achieving visibility benefit, and we also 

acknowledge that in conducting 

modeling according to its visibility 

modeling protocol, North Dakota 

considered the visibility benefit of SCR 

in an incorrect manner.16 However, as 

clarified by the State’s comments 

submitted for this reconsideration 

action,17 the State’s BART 

determination was based on its recent 

BACT decision for MRYS and its 

conclusions that SCR is not technically 

feasible due to unique design 

characteristics at these units. The State 

rejected SCR on technical feasibility 

grounds rather than on the degree of 

visibility improvement, making North 

Dakota’s erroneous visibility benefit 

analysis irrelevant. In any case, because 

technically infeasible control options 

are eliminated from further analysis in 

the BART determination process, any 

consideration of the visibility benefits of 

SCR is precluded. 

Comment: The National Park Service 

(NPS) noted that EPA only discussed 

visibility impacts and improvements at 

Theodore Roosevelt National Park 

(North Dakota) in the BART analyses 

and should have also included two 

other Class I areas, Medicine Lake 

Wilderness (Montana) and Lostwood 

Wilderness Area (North Dakota), as 

these areas are also within 300 km of 

MRYS and LOS. The NPS stated that it 

was impossible to determine whether or 

how EPA considered impacts at the 

other two Class I areas, and that it is 

appropriate to consider both the degree 

of visibility improvement in a given 

Class I area as well as the cumulative 

effects of improving visibility across all 

of the Class I areas affected. The NPS 

also noted that EPA did not mention the 

visibility impacts at Medicine Lake in 

either the Federal Register notice or in 

the Technical Support Document. 

Response: The commenter’s concern 

is immaterial in this instance. The 

technical feasibility review precedes the 

analysis of visibility impacts in the 

review process. Since our 

reconsideration action applies only to 

MRYS Units 1 and 2 and LOS Unit 2, 

where the State selected what it 

determined to be the most stringent 

technically feasible control option,18 per 

the BART Guidelines, we do not reach 

the issue of visibility impacts. 

E. Comments on Legal Issues 

1. BACT Versus BART Determinations 

Comment: One commenter supporting 

our proposal stated that it would be 

incongruous to make BART more 

stringent than BACT at the same facility. 

The commenter went on to assert that 

the procedures set forth in the New 

Source Review (NSR) Manual and BART 

Guidelines result in BART 

determinations that are less stringent 

than BACT. The commenter noted that 

unlike the NSR Manual, the BART 

Guidelines do not call for a top-down 

analysis. Therefore, according to the 

commenter, in its BART analysis North 

Dakota is not required to select the most 

effective control technology that has not 

been eliminated. Instead, North Dakota 

has ‘‘discretion to determine the order 

in which [it] should evaluate control 

options for BART,’’ and must provide a 

justification for the technology it selects 

as ‘‘best.’’ 40 CFR 51, appendix Y, 

section IV.E.2. The commenter believes 

that because North Dakota has 

discretion to select something other 

than the technology that achieves the 

greatest reduction in emissions, and can 

forego a control technology based on a 

lack of visibility improvement, BART 

controls are less stringent than BACT 

controls. 

Another commenter challenging our 

proposal stated that a BACT decision, 

which does not consider the degree of 

visibility improvement, cannot 

substitute for BART. 

Response: We acknowledge that in 

many instances BACT determinations 

will be more stringent than BART 

determinations, or identical to them. 

However, there are exceptions. First, the 

timing of the determinations, 

particularly in regard to when a control 

technology becomes commercially 

available, may yield different BART and 

BACT determinations. Secondly, the 

degree of visibility improvement, a 

factor considered under BART but not 

BACT, might result in different 

determinations. 

We disagree in this particular 

situation that the predicted visibility 

benefits attributable to SCR at MRYS 

and LOS were small enough, as a sole 

consideration, to have justified the 

selection of SNCR over SCR. The State’s 

own modeling identified greater 

visibility benefits when comparing SCR 

over SNCR of more than 0.5 deciviews 

per unit at the highest impacted Class I 

area, Theodore Roosevelt National Park. 

However, taking into consideration the 

December 21, 2011 court decision, in 

addition to the information the State 

submitted in SIP Amendment No. 1 and 

the State’s comments on our 

reconsideration action, we view the 

State’s BART determinations as a 

rejection of SCR on grounds of technical 

feasibility rather than low visibility 

benefits. Accordingly, the visibility 

factor in the BART analysis does not 

affect the outcome here.19

Comment: One commenter noted that 

the BART Guidelines do not 

automatically authorize reliance on a 

BACT limit. The commenter stated that 

where there is any indication that the 

BACT limit is outdated or does not 

reflect the best available controls, it 

cannot substitute for BART. It is 

uncontested that SCR has the highest 

control efficiency of all control options. 

Thus, the commenter argued that SCR is 

indisputably the best, most stringent 

control, and EPA cannot settle for less 

under the CAA or the implementing 

BART Guidelines. 

Response: As discussed previously, 

EPA agrees that BART analyses should 

not rely on outdated determinations 

reached under other CAA standards, but 

we also do not consider it appropriate 

to perpetually restart the BART 

rulemaking process to consider latebreaking technological developments. 

Here, the State could reasonably assert 

that at the time of its BART 

determination, no material new 

technologies would have arisen since its 

BACT determination. In light of the 

Minnkota Power court’s finding that the 

state reached a reasonable conclusion, 

the Agency does not believe it 

appropriate to disregard the BACT 

determination and require SCR. 

Comment: One commenter argued 

that the court never addressed the 

question of whether EPA’s own BACT 

analysis was itself reasonable, let alone 

more persuasive than North Dakota’s 

conclusions regarding feasibility. The 

commenter stated that similarly, the 

court did not consider many of EPA’s 

reasons for concluding that SCR is a 

feasible technology that should be 

designated as BART. Nor did the court 

address EPA’s view that vendor 

willingness or unwillingness to provide 

a catalyst life guarantee had no relation 

to whether SCR was commercially 

available or feasible but rather related to 

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20See EPA, Technical Support Document: 

Methodology for Developing BART NOX

Presumptive Limits (June 15, 2005), docket EPA– 

R08–OAR–2010–0406–0092; Technical Support 

Document for BART NOX Limits for Electric 

Generating Units Excel Spreadsheet (June 15, 2005), 

docket EPA–HQ–OAR–2002–0076–0446. 

the cost of using SCR according to the 

commenter. 

Response: Giving appropriate 

consideration to the district court’s 

decision does not depend on whether 

the court addressed every potential 

argument that EPA made or could have 

made based on the record of that case. 

Minnkota Power remains a final 

decision of a federal court with 

jurisdiction over the subject matter 

before it, a ruling that addressed issues 

relevant to this action. Further, as 

discussed above, EPA finds it 

appropriate to look to North Dakota’s 

recent BACT determination as 

indicative of the appropriate BART 

outcome in this matter. 

Comment: One commenter stated that 

EPA’s BART determination is entitled to 

deference and evaluated under a 

different standard of review than that 

applicable to the district court in the 

Minnkota Power case. The commenter 

noted that EPA is not bound by 

Minnkota Power given EPA’s authority 

when making BART determinations 

under a FIP, or ensuring that a state’s 

submission complies with the CAA, and 

the deference given to those decisions. 

While the definition of technical 

feasibility is substantially the same for 

the BACT and BART programs, the legal 

standard that governed the district 

court’s review of North Dakota’s BACT 

decision is not the same legal standard 

that applies to review of EPA’s decision 

in promulgating a FIP or reviewing the 

adequacy of a state regional haze plan, 

such that the district court decision 

cannot govern here according to the 

commenter. 

Response: EPA does not view 

Minnkota Power as directly governing 

the outcome of this matter, but the 

Agency has taken into consideration 

this federal court ruling in assessing 

North Dakota’s BART determinations for 

MRYS and LOS. In reviewing the State’s 

determinations, EPA considered 

whether North Dakota acted reasonably. 

The decision in Minnkota Power was 

one factor EPA took into account in 

deciding not to disapprove North 

Dakota’s SIP. As noted above, this was 

not the only factor. EPA also took into 

account the BART Guidelines and North 

Dakota’s contemporaneous BACT 

determination. We agree that different 

legal standards govern the district 

court’s review of North Dakota’s BACT 

determination and EPA’s review of its 

decision regarding the adequacy of the 

SIP. 

2. Consideration of the Presumptive 

NOX BART Emissions Limit 

Comment: Commenters stated that the 

BACT determination does not fulfill 

BART requirements for either MRYS or 

LOS since it contains an emissions limit 

higher than presumptive BART, and 

EPA has not conducted a five-factor 

BART analysis justifying an emission 

limit above presumptive BART. The 

BART Guidelines provide that 

presumptive BART for all lignite-fired 

cyclone boilers is a NOX emissions limit 

of 0.10 lb/MMBtu, based upon the 

installation of SCR control technology. 

40 CFR 51, appendix Y, section IV.E.5. 

The commenters note that EPA 

specifically evaluated the use of SCR on 

both MRYS and LOS in determining the 

presumptive NOX BART level and 

found it feasible and cost effective.20

The commenters argued that EPA has 

not refuted the presumptive 

determination in this case. 

Response: We disagree with the 

commenters. EPA is reaffirming our 

approval of three BART determinations 

that included five-factor analyses 

conducted by the State of North Dakota 

for MRYS Units 1 and 2 and LOS Unit 

2. Thus, it was not necessary for EPA to 

conduct its own five-factor analyses or 

to refute the EPA analysis done in 2005 

in support of the development of the 

NOX presumptive limits. The emissions 

limits for SNCR in the State’s analyses 

were based on a careful consideration of 

the statutory factors. While EPA did not 

agree with all aspects of the State’s 

analyses, the deciding factor was that of 

technical feasibility. As discussed in the 

‘‘Basis for Today’s Final Action’’ section 

above, there are two principles from our 

BART Guidelines that are relevant to 

this situation. The first is that as part of 

a BART analysis, states may eliminate 

technically infeasible control options 

from further review. The second is that 

states generally may rely on a recent 

BACT determination for a source for 

purposes of determining BART for that 

source. North Dakota’s BART 

determination for MRYS was developed 

at approximately the same time as its 

BACT determination for this facility, 

and was upheld by a U.S. district court. 

EPA finds it appropriate to approve the 

emissions limits for SNCR (above the 

presumptive emissions limits of 0.10 lb/ 

MMBtu for lignite-fired cyclone boilers, 

based upon installation of SCR control 

technology) predicated on the State’s 

analyses and its determination that SCR 

is eliminated from consideration based 

upon grounds of technical infeasibility. 

Comment: Commenters stated that 

EPA did not consider non-air quality 

benefits in rejecting a presumptive NOX

BART limit of 0.10 lb/MMBtu or lower, 

which is based on installation of SCR 

for cyclone boilers. The commenters 

noted that impacts are much more 

severe with SNCR than SCR as much 

more ammonia is used and released. 

The commenters list non-air-quality 

impacts regarding transportation, 

storage and use of ammonia including 

safety concerns, and potential fly ash 

contamination in addition to potential 

visibility impacts of emissions of 

unreacted ammonia (‘‘ammonia slip’’) 

that offset the claimed visibility 

improvement by SNCR compared to 

SCR. 

Response: We disagree with the 

commenters. They asserted that the 

ammonia slip from SNCR would be 

greater than from SCR, but this 

difference is not pertinent because SCR 

was eliminated from consideration 

based on technical infeasibility. (As 

discussed in our responses elsewhere, 

in approving BART determinations that 

are above the presumptive limit at 

MRYS and LOS, EPA has taken into 

consideration North Dakota’s five-factor 

analyses, the State’s reliance on a recent 

BACT determination, and a federal 

court ruling that addressed issues 

relevant to this action.) The commenters 

did not assert that SNCR should be 

eliminated from consideration based on 

ammonia slip. With SCR an unavailable 

option, SNCR is the most stringent 

technically feasible control option, and 

a comparison of the non-air-quality 

impacts between the eliminated 

technology (SCR) and the remaining 

most stringent technology (SNCR) is 

immaterial. 

3. Collateral Estoppel 

Comment: Commenters expressed 

differing opinions on whether collateral 

estoppel binds EPA to the Minnkota 

Power decision. The doctrine of 

collateral estoppel, also known as issue 

preclusion, provides that ‘‘once a court 

has decided an issue of fact or law 

necessary to its judgment that decision 

may preclude relitigation of the issue in 

a suit on a different cause of action 

involving a party to the first case.’’ Air 

Line Pilots Ass’n Int’l v. Trans States 

Airlines, 638 F.3d 572, 579 (8th Cir. 

2011) (citations and punctuation 

omitted); see also Parklane Hosiery Co. 

v. Shore, 439 U.S. 322, 326 (1979). 

Response: Collateral estoppel does not 

govern EPA’s decision in this matter. 

The district court in Minnkota Power 

decided the case under a standard of 

review outlined in a consent decree that 

settled an enforcement matter. Under 

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the standard derived from the 

enforcement consent decree, EPA had 

the burden of proving that the State’s 

BACT determination was unreasonable. 

On the other hand, when courts review 

EPA action on a state’s BART 

determination, an altogether different 

standard applies: courts defer to EPA’s 

technical expertise, and the petitioning 

party must show that EPA’s action was 

arbitrary and capricious. Thus, because 

EPA had a much higher burden of proof 

in the district court than it would have 

on review of a SIP approval, collateral 

estoppel does not apply here. ‘‘Failure 

of one party to carry the burden of 

persuasion on an issue should not 

establish the issue in favor of an 

adversary who otherwise would have 

the burden of persuasion on that issue 

in later litigation.’’ 18 C. Wright, A. 

Miller & E. Cooper, Federal Practice and 

Procedure § 4422 at 592 (2002), quoted 

in Cobb v. Pozzi, 352 F.3d 79, 101–102 

(2d Cir. N.Y. 2003). 

As to LOS Unit 2, an additional 

reason that EPA is not collaterally 

estopped with respect to this action is 

that Minnkota Power only involved 

MRYS, not LOS. Because the case did 

not specifically address the latter 

station, collateral estoppel cannot be 

invoked with respect to it. For these 

reasons, the Agency’s decision in this 

proceeding is not constrained by the 

district court’s Minnkota Power 

decision. That is not to say, however, 

that the district court’s decision is 

irrelevant. Minnkota Power remains a 

final decision of a federal court with 

jurisdiction over the subject matter 

before it, a ruling that addressed some 

issues relevant to this action. EPA has 

reviewed and considered the court’s 

opinion, and views it as relevant to but 

not decisive of the questions presented 

in this matter. 

Finally, although EPA does not agree 

that collateral estoppel applies here, our 

final action is the same as if we had 

accepted as persuasive the comments 

asserting that it does. 

4. EPA Versus State Authority 

Comment: Several commenters in 

supporting our proposal highlighted 

that in approving the State’s BART 

determinations, EPA appropriately 

respected the State of North Dakota’s 

statutory role in establishing BART 

limits and implied that EPA lacked 

authority to pursue another course. 

Response: Courts have rejected state 

primacy arguments in several rulings 

that have occurred since the close of 

EPA’s public comment period for this 

action. EPA’s role in regional haze 

planning includes examining the 

rationale for and the reasonableness of 

states’ underlying decisions. 

5. Scope of Reconsideration Action 

Comment: One commenter stated that 

there was no need to grant petitioners 

an opportunity to comment on the 

Minnkota Power ruling because EPA 

had no choice but to follow it. 

Response: We disagree that EPA had 

no choice but to follow the Minnkota 

Power ruling. Section 307(d)(7)(B) of the 

CAA prohibits a party from seeking 

judicial review of objections to a rule 

that were not raised with reasonable 

specificity during the comment period. 

The CAA provides a two-part exception 

to this general ban on judicial review of 

newly raised objections. The EPA 

Administrator must convene a 

reconsideration proceeding if the 

petitioner can demonstrate that: 

1. It was impracticable to raise such 

an objection during the comment period 

or the information became available 

after the period for public comment; and 

2. The objection is of central 

relevance to the outcome of the rule. 

The significant consideration that EPA 

has given to the district court decision, 

which was made 30 days after the close 

of our public comment period, meets 

the criteria for convening a 

reconsideration proceeding. 

Further, the premise of the comment 

is incorrect. The comment is built on an 

assertion that EPA had ‘‘no choice’’ but 

to follow the Minnkota Power holding. 

For the Agency to have no choice, either 

collateral estoppel or res judicata would 

have to apply. Neither doctrine does. 

The district court in Minnkota Power 

decided the case under a standard of 

review outlined in a consent decree that 

settled an enforcement matter. There is 

no possibility of res judicata, because 

EPA’s regional haze rulemaking action 

was not before the court for decision. 

And as described above, EPA’s action in 

this proceeding is not constrained by 

collateral estoppel based on Minnkota 

Power. Therefore, there is no reason to 

conclude that the Minnkota Power 

decision left EPA ‘‘no choice’’ with 

respect to this rulemaking action. 

Comment: One commenter stated that 

issues involving the technical 

feasibility, cost effectiveness, and 

visibility impact of potential control 

technologies are beyond the scope of 

this reconsideration action. 

Response: EPA initiated the 

reconsideration of our final rule based 

on our approval of the State’s NOX

BART determination and limits for 

MRYS Units 1 and 2 and LOS Unit 2. 

At the time of our proposed 

reconsideration, to allow for broad 

public comment, we decided not to 

limit the relevant scope of comments, 

other than requiring that they address 

one or more of these units. 

F. Comments Generally in Favor of Our 

Proposal 

Comment: We received more than 

1,200 comment letters in support of our 

rulemaking from concerned citizens and 

members representing rural power 

cooperatives. These comments were 

received at the public hearings in 

Bismarck, North Dakota, by internet, 

and through the mail. Each of these 

commenters was generally in favor of 

our proposed decision to approve North 

Dakota’s NOX BART determinations for 

MRYS Units 1 and 2 and LOS Unit 2. 

These comments generally stated that 

SCR is an unproven technology for these 

type of units and would not noticeably 

improve visibility. They also expressed 

concern about increasing electricity 

costs. 

Response: We acknowledge these 

general comments that supported our 

proposed action. While we disagree 

with some of the commenters’ reasoning 

on the points of technical feasibility, 

visibility benefits, and cost, these points 

are largely no longer relevant, because 

we have decided to finalize our 

approval of North Dakota’s NOX BART 

determinations for MRYS Units 1 and 2 

and LOS Unit 2 on grounds explained 

elsewhere. 

G. Comments Generally Against Our 

Proposal 

Comment: We received over 650 

comment letters that urged us to require 

SCR at MRYS Units 1 and 2 and LOS 

Unit 2 based on our original rigorous 

technical analyses that showed SCR was 

cost effective and a commonly used 

technology with more than 400 plants 

using the technology in the United 

States. Commenters stated that SCR 

technology would reduce pollution by 

90% at these plants. Some commenters 

generally requested that EPA lower the 

emission limits for LOS Unit 1. Some 

commenters also generally discussed 

health effects and health costs related to 

regional haze pollutants. Some 

commenters also stated that rapid oil 

and gas development makes it more 

critical to install the best pollution 

controls at these plants. 

Response: Because we have decided 

to finalize our approval of North 

Dakota’s NOX BART determinations for 

MRYS Units 1 and 2 and LOS Unit 2 on 

the grounds explained elsewhere in this 

document, it would not be appropriate 

to require SCR solely based on our 

original technical analyses. 

We appreciate the commenters’ 

concerns regarding the negative health 

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8558 Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations 

21Mercer County, http://quickfacts.census.gov/

qfd/states/38/38057.html, Oliver County, http://

quickfacts.census.gov/qfd/states/38/38065.html. 

22 Income and Poverty in the United States: 2013, 

Current Population Reports, DeNavas-Walt and 

Proctor, Issued September 2014, P60–249, pp. 1 and 

15. Available at https://www.census.gov/content/

dam/Census/library/publications/2014/demo/p60- 

249.pdf. 

impacts of pollutants that contribute to 

regional haze. We agree that these 

pollutants can have effects on human 

health, but such effects are not taken 

into account in setting BART limits 

under the regional haze program. The 

next phase of the regional haze program 

will, as appropriate, lead to further 

emission reductions. 

Regarding the commenters’ concerns 

about rapid oil and gas development in 

North Dakota, while that is beyond the 

scope of this reconsideration action, 

EPA will be closely reviewing North 

Dakota’s plans in future planning 

periods regarding potential impacts 

from oil and gas development as well as 

other anthropogenic emissions on 

regional haze. 

Finally, emission limits at LOS Unit 

1 are outside the scope of this 

reconsideration action; we only 

reconsidered the NOX BART 

determinations for MRYS Units 1 and 2 

and LOS Unit 2. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is exempt from review by 

the Office of Management and Budget 

because it merely approves state law as 

meeting federal requirements and 

imposes no additional requirements 

beyond those imposed by state law. In 

this reconsideration, EPA is affirming its 

prior approval of North Dakota SIP 

requirements for two sources in North 

Dakota. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act. This action is not imposing any 

additional burden on the public. 

C. Regulatory Flexibility Act 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the Regulatory and Flexibility 

Act. In making this determination, the 

impact of concern is any significant 

adverse economic impact on small 

entities. An agency may certify that a 

rule will not have a significant 

economic impact on a substantial 

number of small entities if the rule 

relieves regulatory burden, has no net 

burden or otherwise has a positive 

economic effect on the small entities 

subject to the rule. In this 

reconsideration, EPA is affirming its 

prior approval of North Dakota SIP 

requirements for two sources in North 

Dakota. The action merely approves 

state law as meeting federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. We have therefore concluded 

that this action will have no net 

regulatory burden for all directly 

regulated small entities. 

Unfunded Mandates Reform Act 

This action does not contain any 

unfunded mandate as described in the 

Unfunded Mandates Reform Act, 2 

U.S.C. 1531–1538, and does not 

significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

D. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

E. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 because it does not impose 

substantial direct compliance costs and 

does not preempt tribal law. In this 

reconsideration, EPA is affirming its 

prior approval of North Dakota SIP 

requirements for two sources in North 

Dakota. The action merely approves 

state law as meeting federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. Thus, Executive Order 13175 

does not apply to this rule. 

F. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that concern environmental 

health or safety risks that EPA has 

reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it affirms a prior approval of a 

state action implementing a federal 

standard. 

G. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

H. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

I. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations. In this reconsideration, 

EPA is affirming its prior approval of 

North Dakota SIP requirements for two 

sources in North Dakota which increase 

environmental protection for the general 

population. The action merely approves 

state law as meeting federal 

requirements and imposes no additional 

requirements beyond those imposed by 

state law. This regulatory option was 

selected as the preferable regulatory 

option for the reasons summarized in 

section II.B of this action. EPA provided 

meaningful participation opportunities 

for minority, low-income or indigenous 

populations or tribes in the 

development of this rule by conducting 

a public hearing on May 15, 2013 and 

by providing a three-month public 

comment period as described in section 

I of this action. 

As part of this environmental justice 

assessment, EPA also reviewed 2013 

U.S. Census Bureau data for Mercer and 

Oliver counties 21 where the two sources 

involved in this reconsideration action 

are located. Both counties have small 

minority populations with the white, 

non-minority populations comprising 

over 95% of the whole. Both counties 

are also below the 2013 national official 

poverty rate of 14.5% and the Midwest 

poverty rate of 12.9%.22 The 2013 

poverty rates for Mercer and Oliver 

counties are 7.2% and 11.4%, 

respectively. For comparison, the 

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Federal Register / Vol. 80, No. 32 / Wednesday, February 18, 2015 / Rules and Regulations 8559 

poverty rate for the State of North 

Dakota is 12.1%. Supporting 

documentation is included in the 

docket. 

EPA’s policy on environmental justice 

is to ensure the fair treatment and 

meaningful involvement of all people 

regardless of race, color, national origin, 

or income with respect to the 

development, implementation, and 

enforcement of environmental laws, 

regulations, and policies. Our review 

here for this reconsideration action is 

consistent with EPA’s policy. This 

section, along with the supporting 

documentation in the docket, constitute 

EPA’s full analysis of environmental 

justice for this action. 

J. Congressional Review Act 

This action is subject to the 

Congressional Review Act, and EPA will 

submit a rule report to each House of 

the Congress and to the Comptroller 

General of the United States. This action 

is not a ‘‘major rule’’ as defined by 5 

U.S.C. 804(2). 

K. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by April 20, 2015. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxides, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur dioxide, Volatile 

organic compounds. 

Dated: February 6, 2015. 

Gina McCarthy, 

Administrator. 

[FR Doc. 2015–03177 Filed 2–17–15; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 120404257–3325–02] 

RIN 0648–XD735 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; 2015 

Commercial Accountability Measure 

and Closure for South Atlantic Golden 

Tilefish Longline Component 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS implements an 

accountability measure for the 

commercial longline component for 

golden tilefish in the exclusive 

economic zone (EEZ) of the South 

Atlantic. Commercial longline landings 

for golden tilefish are projected to reach 

the longline component’s commercial 

annual catch limit (ACL; commercial 

quota) on February 19, 2015. Therefore, 

NMFS closes the commercial longline 

component for golden tilefish in the 

South Atlantic EEZ on February 19, 

2015, and it will remain closed until the 

start of the next fishing season, January 

1, 2016. This closure is necessary to 

protect the golden tilefish resource. 

DATES: This rule is effective 12:01 a.m., 

local time, February 19, 2015, until 

12:01 a.m., local time, January 1, 2016. 

FOR FURTHER INFORMATION CONTACT: 

Britni LaVine, telephone: 727–824– 

5305, email: britni.lavine@noaa.gov. 

SUPPLEMENTARY INFORMATION: The 

snapper-grouper fishery of the South 

Atlantic includes golden tilefish and is 

managed under the Fishery 

Management Plan for the SnapperGrouper Fishery of the South Atlantic 

Region (FMP). The FMP was prepared 

by the South Atlantic Fishery 

Management Council and is 

implemented under the authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) by regulations 

at 50 CFR part 622. 

On April 23, 2013, NMFS published 

a final rule to implement Amendment 

18B to the FMP (78 FR 23858). 

Amendment 18B to the FMP established 

a longline endorsement program for the 

commercial golden tilefish component 

of the snapper-grouper fishery and 

allocated the commercial golden tilefish 

ACL among two gear groups, the 

longline and hook-and-line components 

as commercial quotas. 

The commercial quota for the longline 

component for golden tilefish in the 

South Atlantic is 405,971 lb (184,145 

kg), gutted weight, for the current 

fishing year, January 1 through 

December 31, 2015, as specified in 50 

CFR 622.190(a)(2)(iii). 

Under 50 CFR 622.193(a)(1)(ii), NMFS 

is required to close the commercial 

longline component for golden tilefish 

when the longline component’s 

commercial quota has been reached, or 

is projected to be reached, by filing a 

notification to that effect with the Office 

of the Federal Register. After the 

commercial quota for the longline 

component is reached or projected to be 

reached, golden tilefish may not be 

fished for or possessed by a vessel with 

a golden tilefish longline endorsement. 

NMFS has determined that the 

commercial quota for the longline 

component for golden tilefish in the 

South Atlantic will be reached on 

February 19, 2015. Accordingly, the 

commercial longline component for 

South Atlantic golden tilefish is closed 

effective 12:01 a.m., local time, February 

19, 2015, until 12:01 a.m., local time, 

January 1, 2016. 

During the commercial longline 

closure, golden tilefish may still be 

harvested commercially using hookand-line gear. However, a vessel with a 

golden tilefish longline endorsement is 

not eligible to fish for or possess golden 

tilefish using hook-and-line gear under 

the hook-and-line trip limit, as specified 

in 50 CFR 622.191(a)(2)(ii). The operator 

of a vessel with a valid commercial 

vessel permit for South Atlantic 

snapper-grouper and a valid commercial 

longline endorsement for golden tilefish 

having golden tilefish on board must 

have landed and bartered, traded, or 

sold such golden tilefish prior to 12:01 

a.m., local time, February 19, 2015. 

During the commercial longline closure, 

the bag limit and possession limits 

specified in 50 CFR 622.187(b)(2)(iii) 

and (c)(1), respectively, apply to all 

harvest or possession of golden tilefish 

in or from the South Atlantic EEZ by a 

vessel with a golden tilefish longline 

endorsement, and the sale or purchase 

of longline-caught golden tilefish taken 

from the EEZ is prohibited. The 

prohibition on sale or purchase does not 

apply to the sale or purchase of 

longline-caught golden tilefish that were 

harvested, landed ashore, and sold prior 

to 12:01 a.m., local time, February 19, 

2015, and were held in cold storage by 

a dealer or processor. Additionally, the 

bag and possession limits and the sale 

and purchase provisions of the 

commercial closure apply to a person on 

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