### 8478 Federal Register / Vol. 78, No. 25 / Wednesday, February 6, 2013 / Proposed Rules

1 The main channels between the Port of Montreal and Lake Erie have a controlling depth of 8.23m.

(2) Have a diameter not greater than 28 mm for wire line and not greater than 64 mm for approved synthetic lines;

* * * * *

(e) Hand held synthetic lines if permitted by the Manager or Corporation shall meet the criteria in paragraph (a) and shall have a minimum length of not less than 65 meters.

* * * * *

■ 3. Revise § 401.14 to read as follows:

**§ 401.14 Anchor marking buoys.**

(a) A highly visible anchor marking buoy of a type approved by the Manager and the Corporation, fitted with 22 m of suitable line, shall be secured directly to each anchor so that the buoy will mark

the location of the anchor when the anchor is dropped.

(b) Every vessel shall deploy the anchor marking buoy when dropping an anchor in Seaway waters.

■ 4. In § 401.28, revise paragraph (d) to

read as follows:

**§ 401.28 Speed limits.**

* * * * *

(d) Notwithstanding the above speed limits, every vessel approaching a free standing lift bridge shall proceed at a speed so that it will not pass the Limit of Approach sign should the raising of the bridge be delayed.

5. Revise § 401.29 to read as follows:

**§ 401.29. Maximum draft.**

(a) Notwithstanding any provision herein, the loading of cargo, draft and speed of a vessel in transit shall be controlled by the master, who shall take

into account the vessel’s individual characteristics and its tendency to list or squat, so as to avoid striking bottom. 1

(b) The draft of a vessel shall not, in any case, exceed 79.2 dm or the maximum permissible draft designated in a Seaway Notice by the Manager and the Corporation for the part of the Seaway in which a vessel is passing.

(c) Any vessel equipped with an operational Draft Information System (DIS) verified by a member of the

International Association of Classification Societies (IACS) as compliant with the Implementation Specifications found at http:// www.greatlakes-seaway.com and having

onboard:

(1) An operational AIS with accuracy=1 (DGPS); and

(2) Up-to-date electronic navigational charts; and

(3) Up-to-date charts containing highresolution bathymetric data, and (4) The DIS Display shall be located as close to the primary conning position and be visible and legible; and

(5) A pilot plug, if using a portable DIS; will be permitted, when using the DIS, subject to paragraph (a) of this section, to increase their draft by no

more than 7 cm above the maximum permissible draft prescribed under paragraph (b) of this section in effect at

the time.

(d) Verification document of the DIS must be kept on board the vessel at all times and made available for inspection.

(e) A company letter attesting to officer training on use of the DIS must be kept on board and made available for inspection.

(f) Any vessel intending to use the DIS must notify the Manager or the Corporation in writing at least 24-hours prior to commencement of its initial transit in the System with the DIS.

(g) Any vessel intending to use the DIS to transit at a draft greater than the maximum permissible draft prescribed under paragraph (b) of this section in effect at the time, for subsequent transits must fax a completed confirmation

checklist found at www.greatlakesseaway.com to the Manager or the Corporation prior to its transit.

(h) If for any reason the DIS or AIS becomes inoperable, malfunctions, or is not used while the vessel is transiting at a draft greater than the maximum permissible draft prescribed under paragraph (b) of this section in effect at the time, the vessel must notify the Manager or the Corporation immediately.

■ 6. Revise § 401.49 to read as follows:

**§ 401.49. Dropping anchor or tying to**

**canal bank.**

Except in an emergency, no vessel shall drop anchor in any canal or tie-up to any canal bank unless authorized to do so by the traffic controller. Every anchor shall be suitably rigged for immediate release, holding and efficient

retrieval.

■ 7. Revise § 401.73 to read as follows:

**§ 401.73 Cleaning tanks—hazardous cargo**

**vessels.**

(a) Cleaning and gas freeing of tanks shall not take place:

(1) In a canal or a lock; (2) In an area that is not clear of other vessels or structures; and

(3) Before gas freeing and tank cleaning has been reported to the nearest Seaway station.

(b) Hot work permission. Before any hot work, defined as any work that uses flame or that can produce a source of ignition, cutting or welding, is carried out by any vessel on any designated St. Lawrence Seaway Management Corporation (SLSMC) approach walls or wharfs, a written request must be sent to the SLSMC, preferably 24 hours prior

to the vessel’s arrival on SLSMC approach walls or wharfs. The hot work shall not commence until approval is

obtained from an SLSMC Traffic Control

Center.

(c) Special Requirements for Tankers Performing Hot Work. Prior to arriving at any SLSMC designated approach wall or wharf, a tanker must be gas free or have tanks inerted. The gas-free

certificate must be sent to the SLSMC

Traffic Control Center in order to obtain

clearance for the vessel to commence

hot work.

■ 10. In § 401.79 revise paragraph (b)(4)

to read as follows:

**§ 401.79 Advance notice of arrival, vessels requiring inspection.** 

* * * * *

(b) * * * (4) Tug/barge combinations not on the ‘‘Seaway Approved Tow’’ list are subject to Seaway inspection prior to every transit of the Seaway unless provided with a valid Inspection Report for a round trip transit.

Issued at Washington, DC, on January 31,

2013.

Saint Lawrence Seaway Development Corporation.
Craig H. Middlebrook,
Deputy Administrator.

[FR Doc. 2013–02601 Filed 2–5–13; 8:45 am]

**BILLING CODE 4910–61–P**

**ENVIRONMENTAL PROTECTION**

**AGENCY**

**40 CFR Part 52**

**[EPA–R05–OAR–2010–0954 and EPA–R05– OAR–2010–0037; FRL–9772–8]** 

**Approval and Promulgation of Air Quality Implementation Plans; States**  **of Michigan and Minnesota; Regional**

**Haze**

**AGENCY :**  Environmental Protection Agency (EPA).

**ACTION :**  Proposed rule; supplemental.

**SUMMARY :**  In this supplemental notice of proposed rulemaking, EPA is soliciting additional comments on its proposal to disapprove in part the Michigan and Minnesota regional haze State Implementation Plans (SIPs) for failure

to mandate best available retrofit technology (BART) for taconite facilities within these states. This proposal supplements an August 15,2012, action that proposed to disapprove these

elements of these SIPs and to establish


### 8479 Federal Register / Vol. 78, No. 25 / Wednesday, February 6, 2013 / Proposed Rules

Federal emission limits representing

BART.

**DATES :**  Comments must be received on or before March 8, 2013.

**ADDRESSES :**  Submit your comments, identified by Docket IDs No. EPA–R05–

OAR–2010–0954 and EPA–R05–OAR– 2010–0037, by one of the following

methods:

1. www.regulations.gov: Follow the on-line instructions for submitting

comments.

2. Email: aburano.douglas@epa.gov.

3. Fax: (312) 692–2450.

4. Mail: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,

Illinois 60604.

5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements

should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

Instructions: Direct your comments to
Docket IDs No. EPA–R05–OAR–2010–

0954 and EPA–R05–OAR–2010–0037. EPA’s policy is that all comments received will be included in the public docket without change and may be

made available online at www.regulations.gov, including any personal information provided, unless

the comment includes information

claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you

consider to be CBI or otherwise protected through www.regulations.gov

or email. The www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your

name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or

viruses. For additional instructions on submitting comments, go to Section I of

the **SUPPLEMENTARY INFORMATION** section
of this document.

Docket: All documents in the docket

are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly

available docket materials are available either electronically in www.regulations.gov or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone John Summerhays at (312) 886–6067 before visiting the Region 5 office.

**FOR FURTHER INFORMATION CONTACT :**  John Summerhays, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6067, summerhays.john@epa.gov.

**SUPPLEMENTARY INFORMATION :**  This supplementary information section is arranged as follows:

I. What should I consider as I prepare my

comments for EPA? II. What is the background for this action?

III. What is EPA’s review of Minnesota and Michigan’s BART determinations for

taconite facilities?

A. Minnesota B. Michigan

IV. How does this action relate to the action to promulgate Federal requirements for taconite plants? V. Statutory and Executive Order Reviews.

I. What should I consider as I prepare my comments for EPA?

When submitting comments,

remember to:

1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part

or section number. 3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

4. Describe any assumptions and provide any technical information and/ or data that you used.

5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

6. Provide specific examples to illustrate your concerns, and suggest

alternatives.

7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

8. Make sure to submit your comments by the comment period

deadline identified.

II. What is the background for this

action?

Minnesota submitted its regional haze plan on December 30, 2009, and further submitted a proposed supplemental submission on January 5, 2012, and a final supplemental submission on May 8, 2012. EPA proposed approval of the Minnesota plan on January 25, 2012 (77 FR 3681). Among other actions, this proposed rule proposed to approve Minnesota’s plan as requiring BART for the State’s several taconite plants, provided Minnesota submitted its proposed taconite plant BART limits prior to final EPA action. However,

comments on Minnesota’s and EPA’s proposals provided evidence that better, cost-effective technology for control of taconite plant emissions was available. Therefore, EPA published a final rule approving other aspects of the Minnesota regional haze plan on June 12, 2012 (77 FR 34801), but deferred

action on BART for Minnesota’s taconite

facilities.

Michigan submitted its regional haze plan on November 5, 2010. EPA proposed action on the Michigan regional haze plan on August 6, 2012 (77 FR 46912). This proposed rule proposed to approve several aspects of Michigan’s regional haze plan, and proposed to disapprove Michigan’s

BART determinations for a Portland cement plant and a paper mill and proposed Federal limits for those two facilities. However, in this proposed rule, EPA deferred action on BART for the Tilden Mining taconite facility in Michigan. EPA published final action pursuant to this proposal on December 3, 2012 (77 FR 71533), again deferring action on BART for the Tilden Mining taconite plant in Michigan.

Michigan has a second taconite plant, known as Empire Mining. While Empire Mining began operation during the statutory timeframe such that the


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facility is BART-eligible, Michigan’s plan demonstrates satisfactorily that the impact of this facility is sufficiently small, as a result of the enforceable shutdown of one line, that the facility may justifiably be exempted from the BART requirement. On the other hand, Michigan’s plan identifies Tilden Mining as meeting the criteria for being subject to BART. Thus, references in this action to taconite plants in Minnesota and Michigan are meant to refer only to taconite plants in Minnesota and Michigan that are subject to BART, which includes all of the taconite plants in Minnesota and Tilden Mining in Michigan but does not include the Empire Mining plant.

On August 15, 2012 (77 FR 49308), EPA published proposed action on BART for taconite plants in Minnesota and Michigan. In that action, EPA reviewed relevant information regarding the feasibility of various options for the

control of emissions from taconite plants and reviewed other information relevant to determining BART for these plants.

Based on this review and the availability of cost-effective controls, EPA proposed Federal emission limits requiring more stringent control of emissions of nitrogen oxides (NO X) and sulfur dioxide (SO 2) than had been required by Minnesota or Michigan. The notice of proposed rulemaking proposing these limits provided a full discussion of why EPA proposed to conclude that proper consideration of

the BART criteria resulted in more stringent control than was required by the States, thus implicitly concluding that the state submittals did not require controls representing BART. Furthermore, the action proposed regulatory text stating that the state submittals failed to require BART for the taconite plants.

Nevertheless, EPA is publishing this supplemental notice of proposed rulemaking to provide additional information regarding the agency’s views on Minnesota’s and Michigan’s plans and to solicit additional comment regarding the proposal to disapprove in part the plans for failing to require BART at the applicable taconite plants. EPA is not soliciting further comment on its proposed Federal limits; this action only addresses whether the state plans must be disapproved for failing to provide proper analysis and require BART for applicable taconite plants. Further discussion regarding the relationship between this action and the action published August 15, 2012 is provided below.

Previous notices of proposed rulemaking addressing the States’ plans, i.e., the actions published January 25, 2012, and August 6, 2012, for Minnesota and Michigan, respectively, include

substantial discussion of the requirements under sections 169A and 169B of the Clean Air Act and subpart P of 40 CFR 50 for regional haze plans. Most pertinent to today’s action are the requirements for BART in Clean Air Act section 169A and 40 CFR 51.308(e). In making BART determinations, section 169A(g)(2) of the Clean Air Act requires the state to 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.

III. What is EPA’s review of Minnesota and Michigan’s BART determinations

for taconite facilities?

A. Minnesota

In its December 30, 2009, regional haze SIP submittal, Minnesota identified the types of controls that it determined to represent BART for its taconite plants. In all cases, good combustion practice was determined to represent BART with respect to the

control of NO X , existing controls were determined to represent BART for the

control of SO 2 , and the maximum achievable control technology limits in 40 CFR part 63 subpart RRRRR were determined to represent BART for the control of particulate matter. However,

this submittal included no enforceable emission limits to require emissions

control at these facilities.

To remedy this deficiency, Minnesota proposed emission limits nominally representing good combustion practice for these facilities on December 19, 2011. EPA provided comments on this proposal, stating that more stringent limits were warranted and necessary because ‘‘information supporting low

NO X main burners as BART is well

documented and has been available for some time.’’ See letter dated February 10, 2012, signed by Douglas Aburano. These comments provided a timetable showing that an analysis in January 2009 of measures for reducing NO X emissions at U.S. Steel’s Minntac Iron Ore Pelletizing Plant recommended pursuing use of low NO X main burners. Initial tests were sufficiently successful that a report on these efforts, issued on April 13, 2010, recommended further testing. Then, U.S. Steel submitted a report to Minnesota on October 22, 2010, with test results from Minntac’s Line 7 that indicated that a 70 percent

reduction in NO X emissions was
achievable via a low NO X main burner. U.S. Steel reported similar results for

Minntac Line 6 to Minnesota on December 1, 2011.

Nevertheless, Minnesota’s submittal did not demonstrate requisite consideration of this evidence regarding the availability and feasibility of this more effective control technology. In 2008, the owners of each taconite facility asserted that a low NO X main burner was infeasible. Minnesota, in its

December 2009 SIP submittal summarily concurred with the facilities, and the State in its May 2012 submittal did not reconsider the feasibility of this control option.

EPA’s BART Guidelines identify a five-step process for conducting a BART analysis, step two of which is to determine whether the available options identified in step one are technically

feasible. The state ‘‘should document a demonstration of technical infeasibility and should explain, based on physical, chemical, or engineering principles, why technical difficulties would preclude the successful use of the control option on the emissions unit under review.’’ See Section IV Step 2 of the BART Guidelines, also at 70 FR 39163. Minnesota provided no such

demonstration and included no explanation why this control option should be considered infeasible. Beyond lacking any discussion of relevant principles bearing on whether the feasibility of low NO X burners in other industries suggests that low NO X main
burners are feasible for taconite facilities, Minnesota’s submittals do not

discuss the successful demonstration of this control option at U.S. Steel’s facilities or explain why this control option should not be considered feasible at these plants and at the other Minnesota taconite plants. Since Minnesota improperly considered low

NO X main burners to be infeasible, the State’s plan lacked the necessary analysis of the costs, emission reductions, visibility benefits, and other

relevant information to determine whether these controls represent BART. Instead, in its May 2012 submittal, Minnesota stated ‘‘The [Minnesota Pollution Control Agency (MPCA)] understood the purpose of the Supplemental SIP was to establish emission limits that correspond to the previously determined BART technology. The MPCA does not believe that completing the emission limits is a vehicle for completely re-evaluating the

BART determinations for the taconite

facilities.’’ Minnesota conceded that the


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tests at Minntac ‘‘indicate a potential to reach a 70 percent reduction in NO X emissions at the subject lines [under certain conditions],’’ but Minnesota characterized the tests as ‘‘pilot tests’’

that could not be used without

substantial additional effort to establish appropriate BART limits. See the 279th page of the Minnesota document entitled ‘‘Regional Haze State Implementation Plan Supplement April

2012.’’

EPA has several objections to Minnesota’s rationale for failing to require low NO X burners as BART for its taconite plants. When EPA proposes an action but then receives significant evidence favoring an alternate action,

EPA must consider that evidence and

take the alternate action if warranted.

See Sierra Club v. EPA, 671 F.3d 955 (9th Cir. 2012). Although EPA initially proposed to approve Minnesota’s taconite limits, EPA then received evidence that disapproval was

warranted because more effective

controls were available. EPA’s

consideration of this evidence resulted in EPA’s August 15, 2012, proposal to disapprove in part Minnesota’s regional haze plan with respect to BART for taconite plants and in EPA’s action today to publish this supplemental notice of proposed rulemaking.

EPA believes that Minnesota is under similar obligation to reconsider its taconite plant BART limits. The State solicited comments regarding the limits it proposed to establish for its taconite plants, the State received comments demonstrating that significantly tighter limits were warranted, and the State did not give due consideration to those comments. The failure to promulgate limits reflecting low NO X main burners is especially problematic for Minntac, where the benefits of this technology had been physically demonstrated. Minnesota also did not give due

consideration to the evidence that similar technology could be expected to

achieve similar emission reductions and

benefits at other Minnesota taconite plants.

Furthermore, even at the time Minnesota submitted its original regional haze SIP (December 2009),

information was available that low NO X main burners, which had been successfully demonstrated in several other industries, were likely to be a successful technology for reducing NO X emissions from taconite facilities as well. Although EPA did not have the relevant information when it published its January 2012 proposed rulemaking, the above chronology suggests that

Minnesota had information even in 2009 that warranted considering low NO X main burners to be a feasible technology.

The requirements in Minnesota’s final submittal also reflect significant

modifications from the control technology that the State determined in

2009 to reflect BART. Minnesota determined in 2009 that good combustion practice represented BART. However, aside from requiring continuation of the heat recuperation project at the Hibbing Taconite Plant, Minnesota’s final submittal provided no evidence that good combustion practice is actually required. Minnesota did not explain what specific measures constitute good combustion practice, stating only that good combustion practice varies from plant to plant. However, Minnesota did not define good combustion practice either in general or on a plant-by-plant basis.

Minnesota determined emission limits by conducting statistical analyses

of full sets of recent emissions data measured at the taconite plants. While existing emissions may in some cases reflect some good combustion practices,

Minnesota did not differentiate whether any particular data did or did not represent application of good combustion practice. Thus, Minnesota’s limits must be considered to represent simply the existing combustion practice in effect during the testing, without regard to whether these limits reflect application of good combustion practices. Because the companies were required to collect these data for purposes of determining these limits, with instructions to operate under worst case conditions, it is reasonable to conclude that the companies would not have employed good combustion practices, as those would not have

created ‘‘worst case conditions.’’

Further, Minnesota’s submittal did not determine whether good combustion practices beyond those currently being implemented are feasible, either in general or on a plant-specific basis.

Minnesota’s December 2009 submittal determined that BART would be good combustion practice, suggesting that BART would reflect identification, evaluation, and implementation of improvements in combustion practice. However, Minnesota’s final submittal lacks any such identification, evaluation, or requirement for any such improvement in combustion practice. Moreover, the submittal does not

evaluate whether current combustion practice (or, more precisely, the combustion practice in place during collection of the pertinent emissions data) represents good combustion practice. In these respects, while

Minnesota’s December 2009 submittal determined BART for NO X to be good combustion practice, Minnesota’s final submittal contained no provisions ensuring that good combustion practice will actually be followed.

Minnesota’s final submittal also deviates in other significant respects

from its December 2009 submittal.

Minnesota’s final submittal relies on the Cross-State Air Pollution Rule to satisfy the BART requirement for most of the State’s electric generating units, whereas its December 2009 plan determines BART on a plant-by-plant basis. The long-term strategy in Minnesota’s final plan provides for taconite plants to conduct modeling and to recommend emission limits that would provide for attainment of the nitrogen dioxide (NO 2)

and SO 2 air quality standards, whereas the December 2009 plan provides for the companies to conduct pilot testing of emission control technology. EPA is not conducting rulemaking here on these features of Minnesota’s regional haze plan, but these changes demonstrate that Minnesota recognized its latitude to update portions of its December 2009 submittal significantly in light of more recent information. Similarly, Minnesota cannot argue that it was obligated to set limits based on its December 2009 BART determination, in

the face of evidence that more effective

control is available.

EPA is also concerned that Minnesota rejected flue gas desulfurization as a feasible option for control of SO 2 emissions at United Taconite (UTac). At this facility, Minnesota made its initial

BART determination at a time when UTac’s Line 1 fired only natural gas or

fuel oil and when UTac’s Line 2 fired a variety of fuels including coal and petroleum coke. Minnesota determined

at that time that BART for SO 2 for UTac reflected the existing particulate matter scrubbers on both lines (without further optimization to control SO 2 emissions) and fuel blending to reduce SO 2 emissions on Line 2. Minnesota concluded that flue gas desulfurization

for these lines was not cost effective.

UTac subsequently obtained a permit

to burn solid fuels on Line 1. Best available control technology (BACT) was not required in this permit because

Minnesota concluded that the fuel blending measures that it had determined to be BART for Line 2, which it incorporated into the permit, would yield a net SO 2 emission reduction. Consequently, the fuel change did not constitute a major modification requiring BACT.

Minnesota also chose not to conduct a revised BART analysis, determining limits reflecting existing controls with the original fuels and then adopting an


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1 While this rulemaking does not address Federal limits that EPA is promulgating elsewhere, it is relevant to note that EPA is promulgating final limits based on the source burning low sulfur fuels. alternate set of limits that it found equivalent.

EPA believes that Minnesota improperly rejected the use of flue gas

desulfurization as a cost effective technology for reducing SO 2 emissions
from UTac’s two lines. As discussed in the August 15, 2012, notice of proposed rulemaking, EPA believes that flue gas scrubbing, particularly in combination with proper fuel blending, is considerably more cost effective than

the cost effectiveness estimates in Minnesota’s plan. Furthermore, the significant change in operation at the plant warranted reanalysis of BART at this plant. The higher sulfur content of the new fuels made more aggressive emission control more cost effective, so that a proper reanalysis of BART could

have concluded that BART for the new configuration reflected more control and lower emissions than the original configuration. Minnesota’s analysis of the plant using its previous fuel mix does not adequately evaluate the appropriateness of controls for the plant as it is currently operated. 1

EPA also has a variety of concerns about the enforceability of Minnesota’s

chosen limits. Minnesota’s limits are expressed as 30-day rolling averages, but Minnesota in many cases does not require continuous emission monitoring systems (CEMS) to provide data for evaluating compliance. In the absence of CEMS, Minnesota requires ‘‘stack testing * * * for 30 hourly data points.’’ Even if the average of the 30 data points exceeds the emission limit, the data can be contested as not necessarily representative of the 720 hours that are in a 30-day average. Minnesota has not

addressed whether 720 consecutive hours of stack testing is even practicable, though none of the data used to develop emission limits appears

to have been collected in this manner.

EPA has special concerns about the enforceability of the CEMS requirement for Hibbing Taconite. Minnesota requires that the company submit a plan for installing a NO X CEMS, but it is not

clear from the administrative order

thatMinnesota or EPA could take enforcement action if Hibbing Taconite failed to install, certify, and properly operate a CEMS at this facility.

The SO 2 emission limits in

Minnesota’s administrative orders are expressed in terms of pounds of SO 2 emissions per long ton of pellets produced. Pellet production is not routinely measured at the end of an indurating furnace. Further, the administrative orders do not specify methods for determining pellet production by indurating furnaces and do not specify any requirement for the companies to keep records of pellet production. Therefore, the enforceability of these limits is also

unclear.

The administrative order for Hibbing Taconite also provides that the company may determine that its limits are not feasible to meet. In that case, the order identifies information that the company

must submit to Minnesota so that the

State can consider revised emission limits. These provisions raise questions

about whether EPA could enforce the

terms of the administrative order if the company has declared the limits to be

infeasible.

EPA also has concerns about the methods for computing emission limits. For Arcelor/Mittal and Hibbing Taconite, Minnesota appears to have set the limit using the upper predictive limit approach. The equation for calculating the upper predictive limit for normally distributed data is:

Where:
UPL = Upper predictive limit

n = number of data points

m = number of future data points df = n ¥ 1

X  ̄ is the mean,

t p,df represents the critical t-value with a p value of p and df degrees of freedom, and

s is the standard deviation

The available emissions data for these facilities appear not to be normally distributed, and so the upper predictive limit equation that Minnesota used is not appropriate for this application. In addition, the analyses contained in the

Minnesota submittal do not appropriately apply the upper predictive limit approach for normally

distributed data. Most notable is the use of inappropriate values for t p,df and m.

A normal distribution has a lower tail of

the distribution with the same frequency as the upper tail of the distribution. In seeking, for example, to establish the 95th percentile value in a normal distribution, a one tailed test must be applied, such that the upper tail contains five percent of the distribution and the lower tail is simply part of the 95 percent of the distribution at or below the 95th percentile value. However, Minnesota selected its values

for t p,df based on statistics for two tailed tests, which derive, for example, a 95 percent confidence interval that reflects a 2.5 percent upper tail and a 2.5 percent lower tail, which would yield a 97.5th percentile value. (Because normal distributions are symmetric, this error can be addressed by using a value

of t p,df for twice as much frequency outside the confidence interval, e.g., using a two-tailed value of t p,df for a confidence interval of 90 percent in order to derive the 95th percentile value, but Minnesota did not make this adjustment.) Thus, Minnesota selected

values of t p,df that were unduly high, and higher in the emissions distribution than Minnesota was purporting to

choose.

In the above formula, m represents the number of future runs, i.e., the number of future data points. Given that the datasets being used in the analyses are onehour averages, with CEMS, the value of

m should be 720 (30 days times 24 hours). At a minimum, under

administrative orders that in the absence of CEMS apparently determine compliance on the basis of 30 hourly data points (presumably intended to represent 30-day average emissions), the appropriate value of m would be 30.

For ArcelorMittal, Minnesota appears

to have set the limit based on a p -value of 0.01 (which in a normal distribution would yield an upper tail of 0.5 percent and thus a 99.5 percentile value) and m = 3. These values do not represent appropriate values for p or m.

Furthermore, Minnesota did not base its limits for this facility directly on the original data set, but instead used the 157 original data points to create multiple artificial data sets, each including 2000 sets of 30 values randomly selected from the original 157 values. Minnesota then performed statistical analysis of these data sets, using the mean of the original 157 data points plus an adjustment based on the highest standard deviation among the

various artificial data sets that was intended to provide a 99th percent upper predictive limit value. Minnesota does not justify use of these artificial data sets as providing a better representation of emissions or being a better basis for determining an appropriate emission limit than direct use of the original data set, nor does Minnesota justify using this particular

combination of statistics.

Also of note is the fact that the average of the 157 data points is significantly higher than the results of stack tests conducted between June 2000 and April 2009; specifically, the average is 17 percent higher than the highest of these stack test results and 32 percent higher than the average of these stack test results. This suggests that the

data set on which Minnesota used to


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derive its emission limits reflected poorer combustion practice than was in place during the prior stack tests. This raises further questions as to whether

the data sets on which Minnesota bases

its limits can even be considered to reflect good combustion practice, much

less BART-level emission control.

For Hibbing Taconite, Minnesota appears to have set the limit based on

a p -value of 0.05 (which would represent a 97.5% confidence interval)

and m = 1. Again, these are not appropriate values for p or m.

For Northshore Mining, Minnesota appears to have had very little

emissions data available as a basis for setting a limit. The hood exhaust portion of the limit appears to be based on one test data point multiplied by a ‘‘compliance margin’’ of 1.73. The state provided inadequate justification for the 1.73 multiplier. The waste gas portion of the limit appears to be based on a 95percent upper confidence limit (onetailed test) and three data points.

For the U.S. Steel-Minntac and-Keetac facilities, Minnesota set facilitywide limits in terms of tons of SO 2 per day. Minnesota has not demonstrated that limiting the sum of emissions across multiple lines requires control and visibility benefits that are better than those that would be obtained by requiring BART on each line.

In summary, the BART

determinations for taconite facilities in Minnesota’s plan reflect several deficiencies. Most notably, Minnesota inappropriately rejects significant emission control options as being infeasible. Minnesota summarily states

that low NO X main burners are infeasible, without providing the necessary explanation as to why this technology could not be applied and without properly considering evidence at U.S. Steel’s Minntac plant demonstrating successful operation of this control. Similarly, Minnesota inappropriately rejected control options requiring significant reductions in SO 2 emissions. Minnesota determined that good combustion practice represents

BART for NO X control for these plants,

but the State did not define the measures that constitute good combustion practice, the State did not evaluate what good combustion practices might be implemented either in general or at specific plants, and the State provided no basis to believe that its adopted limits in fact reflect good combustion practice. Finally, EPA has concerns about the enforceability and

the derivation of several of the limits in Minnesota’s plan. B. Michigan

As with Minnesota’s plan, EPA’s primary concern with Michigan’s plan for the Tilden Mining facility is the failure of the plan to require emission control that fully represents BART. The Michigan plan provides no limits on

NO X emissions, and Michigan relies on a state permit to provide a limit on SO 2 emissions that is over four times higher than current emissions. Thus, rather than require implementation of BART, Michigan’s plan allows Tilden Mining

to increase emissions to levels substantially higher than the levels that are occurring now.

For NO X , Michigan nominally is defining BART to reflect ‘‘good combustion practices,’’ but in fact neither Michigan nor Tilden Mining provide any analysis of what these practices might be and whether any such measures that are not currently being implemented might be required to be instituted. Michigan’s plan thus might be considered to define BART to reflect existing combustion practices, except that Michigan’s plan provides no limits that would require even the existing combustion practices to be maintained. Instead, Michigan’s plan states that Michigan ‘‘accepts Tilden’s proposal to set a BART NO X emission
limit in a manner similar to the Minnesota Regional Haze SIP. The new

NO X limits will be set after testing to determine appropriate limits based on ‘good combustion practices’ before December 31, 2012.’’ See page 36 of the document entitled, ‘‘State Implementation Plan Submittal for Regional Haze’’ dated October 2010. The plan anticipates that the company will perform stack testing to develop

information on which to base such limits. However, Michigan has provided

no information to EPA that it has taken any of the steps that it would need to

take to establish these limits. In response to a request under authority of Clean Air Act section 114, Tilden Mining provided EPA the results of

three stack tests at each of the two furnace stacks. However, Michigan has submitted no information providing any analysis of emission limits to indicate what limit it might find appropriate, and Michigan has evidently not adopted and has not submitted any emission limit that would make any definition of

NO X BART at this facility enforceable.

Appendix 9H of Michigan’s submittal,

a document labeled Tilden BART Technical Analysis that was apparently prepared by Tilden Mining, states that ‘‘[l]ow NO X burners have been installedin the preheating section of a straightgrate furnace at another taconite plant; however, the [Tilden] indurating furnace does not contain a pre-heat burner section. If [low NO X burners] were to be applied in the indurating zone of the furnace, the reduced flame temperatures associated with [low NO X burners] were to be applied in the indurating zone of the furnace, the reduced flame temperatures associated with [low NO X burners] would adversely affect taconite pellet product quality. [Low NO X burners have] not been applied to the indurating or preheat zones of any grate-kiln taconite furnace. Therefore, this option is not technically feasible.’’ Michigan’s plan accepts Tilden Mining’s conclusion that

low NO X burners are not technically feasible at this facility.

As noted above, low NO X burners now have been applied to a taconite furnace, in particular to the indurating zones of two grate-kiln furnaces. These applications were found not to have adverse effects on product quality. Thus, low NO X burners must be considered technically feasible for Tilden Mining’s indurating furnace. Michigan was aware of the testing of

low NO X main burners at U.S. Steel’s Minntac plant and received comments on the subject before the end of the public comment period on its SIP. Insofar as Michigan has not conducted an adequate review of the costs, benefits and other consequences of implementing this technology, and since this control would provide substantially better control compared to current practice at the plant and compared to the unlimited NO X emissions that Michigan allows, Michigan’s plan cannot be considered to require BART for NO X at Tilden Mining.

With respect to SO 2 , Michigan found several emission control options to be feasible, but the State ultimately concurred with Tilden Mining’s viewthat none of the options were costeffective, based on costs per ton of SO 2 removal ranging from $6,557 per ton to $22,407 per ton. Michigan rejected use of alternative fuels such as natural gas as not required by the BART Guidelines.

In its August 15, 2012 proposed rulemaking, EPA reviewed the cost

effectiveness of SO 2 emission controls and concluded that flue gas

desulfurization would be more cost effective than the Michigan plan

indicated. EPA has received comments on the cost effectiveness of this control,

and EPA has also received comments from Cliffs Natural Resources indicating that limits reflecting the firing of natural gas would also be an appropriate basis for setting SO 2 emission limits for

Tilden. EPA will evaluate these comments and any additional comments


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that EPA receives in response to today’s notice of proposed rulemaking, in order

to determine whether it considers these findings in Michigan’s plan to be problematic. In any case, EPA believes

that the SO 2 emission limit for this facility set by Michigan, allowing more

than four times more emissions than the facility currently emits, cannot be considered to represent BART.

Michigan’s plan also states that ‘‘modeling results showed SO 2 emissions [from Tilden Mining] do not cause visibility impairment to the Class I areas.’’ However, Michigan’s plan does

not include the information that would be necessary to support a statement that

is so at odds with the results of other modeling provided in the plan. In any case, the furnace and other parts of the facility have sufficient impact to be subject to the requirement for BART, and the impact of the emissions of one pollutant can be considered as part of a five factor analysis of BART but does not justify failing to perform the necessary BART analysis, nor can such an analysis justify a conclusion that BART reflects substantially greater emissions than the facility currently

emits.

IV. How does this action relate to the action to promulgate Federal requirements for taconite plants?

As noted above, in an action published August 15, 2012, EPA proposed both to promulgate Federal limits representing BART for taconite plants in Minnesota and Michigan and to disapprove Minnesota and Michigan’s plans with respect to BART for these plants. In response, EPA received comments objecting that the agency had not adequately explained its rationale for proposing to disapprove

the state submittals. EPA notes that it expressly proposed revisions to 40 CFR 52.1183 and 52.1235 to disapprove Michigan and Minnesota’s plans with respect to taconite plant BART and provided extensive discussion of the limits needed to satisfy the taconite plant BART requirement, which implicitly demonstrated the inadequacy of the states’ plans. Nonetheless, EPA agrees that further explanation of the basis for its proposal to disapprove the state plans is warranted. Therefore, EPA is providing this further explanation in this action and is soliciting further comments on this topic.

In these circumstances, EPA views the promulgation of a Federal implementation plan (FIP) and the disapproval of the relevant elements of the state plans as separable actions. A mandate for promulgating Federal limits applies in cases where EPA ‘‘finds that a State has failed to make a required submission.’’ EPA ‘‘shall promulgate [a FIP] within two years’’ of such a finding, ‘‘unless the State corrects the deficiency, and [EPA] approves the plan or plan revision, before [EPA] promulgates such Federal implementation plan.’’ See Clean Air Act section 110(c)(1)(A). Here, EPA made findings, published on January 14, 2009, at 74 FR 2392, that Minnesota and Michigan had failed to make complete submittals addressing regional haze requirements. Minnesota and Michigan subsequently made complete submittals,

but because of the deficiencies discussed in detail in this notice, EPA has not approved these submittals with respect to BART for taconite plants. Therefore, the mandate remains for EPA to promulgate a FIP with respect to taconite plant BART. EPA notes that the agency’s mandate to promulgate such a FIP applies without regard to whether EPA has disapproved a state submittal. While EPA has proposed to disapprove Michigan and Minnesota’s regional haze SIPs in this instance, publication of final disapproval of the states’ submittals is not a prerequisite for promulgating a FIP, and EPA must promulgate a FIP in these circumstances irrespective of whether it has disapproved the state submittals.

As a result, EPA today is publishing a separate action to promulgate a FIP addressing BART for taconite plants in Minnesota and Michigan. That action does not address the approvability of the state submittals, a subject that will be addressed only after EPA considers any additional comments it receives in response to this supplemental notice of proposed rulemaking. Conversely, this action only addresses the deficiencies in

the states’ submittals without addressing the limits that EPA would find necessary, through Federal promulgation or state adoption, to satisfy the BART requirement for these sources. Similarly, this action is soliciting further comments on the approvability of the state plans with respect to BART for taconite plants, but EPA is not soliciting further comments on the FIP that EPA proposed to promulgate. In addition, commenters that submitted comments on the August 15, 2012, action that addressed the approvability of the state submittals need not resubmit those comments; EPA

will consider those comments as well as any comments it receives in response to today’s proposal as it prepares final

action on the elements of Minnesota and Michigan’s plans addressing BART for their taconite plants.

In summary, on August 15, 2012, EPA proposed to partially disapprove Minnesota and Michigan’s plans as failing to satisfy the requirements for BART for their taconite plants. Today’s supplemental notice of proposed rulemaking provides further explanation of EPA’s rationale for proposing that

action and solicits further comment on that proposed action.

V. Statutory and Executive Order

Reviews.

Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a ‘‘significant regulatory action’’ and, therefore, is not subject to review by the Office of Management and Budget.

Paperwork Reduction Act

This rule does not impose an

information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Regulatory Flexibility Act

This action merely solicits comment on a proposal to disapprove state law as not meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial

number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
et seq. ).

Unfunded Mandates Reform Act

Because this rule solicits comment on a proposal to disapprove pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described

in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4).

Executive Order 13132: Federalism

This action also does not have Federalism implications because it does

not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely solicits comment on a proposal to disapprove a state plan, and does not alter the relationship or the distribution of power and responsibilities

established in the Clean Air Act.


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Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

Subject to Executive Order 13175 (65 FR 67249, November 9, 2000), EPA may not issue a regulation that has tribal implication, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement.

EPA has concluded that this action, in conjunction with the FIP promulgation, may have tribal implications. For example, although the FIP does not apply to sources in Indian country, controls and emission reductions arising from the program may affect Indian country or other tribal interests. However, the regulations arising under that action, and the SIP disapproval being addressed here, will neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law.

EPA initiated consultation with Tribal officials early in the process of developing this regulation to permit them to have meaningful and timely input into its development. EPA sent an invitation to consult to each Region 5 Tribe on August 15, 2012, along with a copy of the proposed taconite FIP Federal Register notice. Conference

calls were held on the taconite FIP proposal on August 22, 2012 and September 12, 2012 to provide all Region 5 Tribes with more information on the proposed rulemaking and an opportunity to ask questions of EPA technical staff and request formal

individual consultation if desired. Four Region 5 Tribes participated in the August 22, 2012 call. Two Region 5 Tribes participated in the September 12, 2012 discussion. One Region 5 Tribe provided verbal testimony at the public hearing held on the proposed taconite FIP rulemaking on August 29, 2012. One Region 5 Tribal Chair expressed appreciation for the consultation

discussions held with the Tribes and gratitude for EPA’s careful consideration of the regional haze situation in

northeast Minnesota.

Executive Order 13045: Protection of

Children From Environmental Health and Safety Risks

This rule also is not subject to

Executive Order 13045 ‘‘Protection of

Children from Environmental Health Risks and Safety Risks’’ (62 FR 19885, April 23, 1997), because it solicits comment on a proposal to disapprove a

state rule.

Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

Because it is not a ‘‘significant regulatory action’’ under Executive Order 12866 or a ‘‘significant energy action,’’ this action is also not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001).

National Technology Transfer

Advancement Act

In reviewing state submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for

failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a

state submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high

and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA lacks the discretionary authority to address environmental justice in this proposed action. In reviewing SIP submissions, EPA’s role is to approve or disapprove state choices, based on the

criteria of the Clean Air Act. Accordingly, this action merely proposes to disapprove certain state requirements for inclusion into the SIP under section 110 and subchapter I, part

D of the Clean Air Act and will not inand-of itself create any new requirements. Accordingly, it does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under

Executive Order 12898.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.

Dated: January 11, 2013.

Susan Hedman,
Regional Administrator, Region 5.

[FR Doc. 2013–01463 Filed 2–5–13; 8:45 am]

**BILLING CODE 6560–50–P**

**ENVIRONMENTAL PROTECTION**

**AGENCY**

**40 CFR Part 52**

**[EPA–R05–OAR–2010–0566; FRL–9776–9]**

**Approval and Promulgation of Air Quality Implementation Plans;**  **Michigan**

**AGENCY :**  Environmental Protection Agency (EPA).

**ACTION :**  Proposed rule.

**SUMMARY :**  EPA is proposing to approve revisions to the State of Michigan’s New Source Review (NSR) State Implementation Plan (SIP) including their revised Part 2 NSR permitting rules, and the addition of their Part 19 rules revising Michigan’s NSR rules for major sources in nonattainment areas to include the Federal NSR reform rules, and other revisions that are affected by the Federal NSR rules. The Michigan Department of Environmental Quality (MDEQ) submitted these revisions to EPA on March 24, 2009.

**DATES :**  Comments must be received on or before March 8, 2013.

**ADDRESSES :**  Submit your comments, identified by Docket ID No. EPA–R05– OAR–2010–0566, by one of the following methods:

1. www.regulations.gov: Follow the on-line instructions for submitting

comments.

2. Email: damico.genevieve@epa.gov.

3. Fax: (312) 886–0968.

4. Mail: Genevieve Damico, Chief, Air Permits Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

5. Hand Delivery: Genevieve Damico, Chief, Air Permits Section, Air Programs Branch (AR–18J), U.S. Environmental