[Federal Register Volume 80, Number 32 (Wednesday, February 18, 2015)]
[Rules and Regulations]
[Pages 8550-8559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-03177]


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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.

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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 (NO<INF>X</INF>) 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 NO<INF>X</INF> 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 NO<INF>X</INF> 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, 
<a href="/cdn-cgi/l/email-protection#d096b1bcbcbfbefe97b1b9bc90b5a0b1feb7bfa6"><span class="__cf_email__" data-cfemail="4c0a2d20202322620b2d25200c293c2d622b233a">[email protected]</span></a>.

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 NO<INF>X</INF> 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:
    <bullet> The word Act or initials CAA mean or refer to the Clean 
Air Act, unless the context indicates otherwise.
    <bullet> The initials ASOFA mean or refer to advanced separated 
overfire air.
    <bullet> The initials BACT mean or refer to best available control 
technology.
    <bullet> The initials BART mean or refer to best available retrofit 
technology.
    <bullet> The initials EPA or the words we, us or our mean or refer 
to the United States Environmental Protection Agency.
    <bullet> The initials FIP mean or refer to Federal Implementation 
Plan.
    <bullet> The initials LOS mean or refer to Leland Olds Station.
    <bullet> The initials MRYS mean or refer to Milton R. Young 
Station.
    <bullet> The initials NDDH mean or refer to the North Dakota 
Department of Health.
    <bullet> The words North Dakota and State mean the State of North 
Dakota unless the context indicates otherwise.
    <bullet> The initials NOX mean or refer to nitrogen oxides.
    <bullet> The initials NPS mean or refer to the National Park 
Service.
    <bullet> The initials NSR mean or refer to new source review.
    <bullet> The initials PRB mean or refer to the Powder River Basin.
    <bullet> The initials PSD mean or refer to prevention of 
signification deterioration.
    <bullet> The initials SCR mean or refer to selective catalytic 
reduction.

[[Page 8551]]

    <bullet> The initials SIP mean or refer to State Implementation 
Plan.
    <bullet> The initials SNCR mean or refer to selective non-catalytic 
reduction.
    <bullet> 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.
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    \1\ Although 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 NO<INF>X</INF> 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 NO<INF>X</INF> BART 
determinations for MRYS and LOS.
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    On March 15, 2013, EPA published a notice of proposed rulemaking 
initiating the reconsideration of our approval of the State's 
NO<INF>X</INF> 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 
NO<INF>X</INF> 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.
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    \2\ United States v. Minnkota Power Cooperative, Inc., 831 F. 
Supp. 2d 1109 (D.N.D. 2012).
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    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.
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    \3\ North 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.
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    We requested comments on our March 15, 2013 proposed 
reconsideration and provided a two-month 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 
NO<INF>X</INF> 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.
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    \4\ Among 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.
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    Our BART Guidelines indicate that states may generally consider 
recent BACT determinations to be BART without further analysis. Here, 
as

[[Page 8552]]

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.
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    \5\ The 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.
    \6\ See 40 CFR 51.308(f) requirements for comprehensive periodic 
revisions of implementation plans for regional haze.
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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.
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    \7\ February 27, 2012 letter from Ken Jeffers, Johnson Matthey 
to Callie Videtich, EPA Region 8. See docket EPA-R08-OAR-2010-0406-
0322.
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    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

[[Page 8553]]

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.
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    \8\ Two companies, Haldor Topsoe, Inc. and CERAM Environmental, 
Inc. would require pilot-scale 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.
    \9\ The 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.
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    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 low-dust 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.
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    \10\ See docket EPA-R08-OAR-2010-0406-0364.
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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 NO<INF>X</INF> 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.
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    \11\ PerNOxide 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 higher-order 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.
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    Response: CyClean and TIFI were not identified as technically 
feasible NO<INF>X</INF> 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 NO<INF>X</INF> 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\
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    \12\ Prairie Public News, Minnkota says new method of reducing 
emissions `promising,' Dave Thompson, August 12, 2013. http://news.prairiepublic.org/post/minnkota-says-new-method-reducing-emissions-promising.
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    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

[[Page 8554]]

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 in-duct 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 NO<INF>X</INF> 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.
---------------------------------------------------------------------------

    \13\ North 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.
    \14\ Les 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.
    \15\ SIP, 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.
---------------------------------------------------------------------------

    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 NO<INF>X</INF> 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

[[Page 8555]]

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.
---------------------------------------------------------------------------

    \16\ North Dakota also conducted modeling according to the BART 
Guidelines, which provides the visibility benefit information that 
EPA used in our original proposal analyses.
    \17\ See docket EPA-R08-OAR-2010-0406-0418.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \18\ Since SCR is eliminated from consideration based on 
technical infeasibility, SNCR becomes the most stringent technically 
feasible control option.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 late-breaking 
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

[[Page 8556]]

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 NO<INF>X</INF> 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 NO<INF>X</INF> 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 NO<INF>X</INF> BART level and found it 
feasible and cost effective.\20\ The commenters argued that EPA has not 
refuted the presumptive determination in this case.
---------------------------------------------------------------------------

    \20\ See EPA, Technical Support Document: Methodology for 
Developing BART NO<INF>X</INF> Presumptive Limits (June 15, 2005), 
docket EPA-R08-OAR-2010-0406-0092; Technical Support Document for 
BART NO<INF>X</INF> Limits for Electric Generating Units Excel 
Spreadsheet (June 15, 2005), docket EPA-HQ-OAR-2002-0076-0446.
---------------------------------------------------------------------------

    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 NO<INF>X</INF> 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 NO<INF>X</INF> 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

[[Page 8557]]

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 Sec.  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 NO<INF>X</INF> 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 NO<INF>X</INF> 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 NO<INF>X</INF> 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 NO<INF>X</INF> 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

[[Page 8558]]

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 NO<INF>X</INF> 
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

[[Page 8559]]

poverty rate for the State of North Dakota is 12.1%. Supporting 
documentation is included in the docket.
---------------------------------------------------------------------------

    \21\ Mercer 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.
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    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


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