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Approval and Promulgation of Air Quality Implementation Plans; Minnesota

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Environmental Protection Agency (EPA).


Direct final rule.


EPA is approving a site-specific revision to the Minnesota sulfur dioxide (SO2) State Implementation Plan (SIP) for the Rochester Public Utilities Silver Lake Plant (RPU-SLP), located in Rochester, Minnesota. In its October 16, 2007, submittal, the Minnesota Pollution Control Agency (MPCA) requested that EPA approve certain conditions contained in RPU-SLP's revised Federally enforceable joint Title I/Title V document into the Minnesota SO2 SIP. The request is approvable because it satisfies the requirements of the Clean Air Act (CAA). The rationale for the approval and other information are provided in this rulemaking action.


This direct final rule will be effective February 1, 2010, unless EPA receives adverse comments by January 4, 2010. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.


Submit your comments, identified by Docket ID No. EPA-R05-OAR-2007-1130, by one of the following methods:

1. Follow the on-line instructions for submitting comments.

2. E-mail:

3. Fax: (312) 692-2551.

4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR 18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

5. Hand Delivery: John M. Mooney, Chief, Criteria Pollutant 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 ID No. EPA-R05-OAR-2007-1130. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at, 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 or e-mail. The 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 e-mail comment directly to EPA without going through your e-mail 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 Start Printed Page 63067name 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.

Docket: All documents in the docket are listed in the 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 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 Christos Panos, Environmental Engineer, at (312) 353-8328 before visiting the Region 5 office.

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Christos Panos, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8328,

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Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

I. General Information

1. What Is the Background for This Action?

2. Why Is EPA Taking This Action?

3. What Is a “Title I Condition?”

II. What Action Is EPA Taking?

III. Statutory and Executive Order Reviews

I. General Information

1. What Is the Background for This Action?

The Silver Lake Plant is an electric generating station located at 425 West Silver Lake Drive Northeast, in Rochester, Olmsted County, Minnesota, having a total generating capacity of approximately 100 megawatts. Emission sources at the facility include four pulverized coal-fired dry-bottom boilers, a natural-gas-fired steam heating boiler, coal handling and storage facilities, fly and bottom ash storage and handling facilities, and fugitive emissions from unpaved roads. Boilers 1, 2, 3, and 4 were constructed in 1949, 1952, 1962, and 1969, respectively. The primary fuels for these four boilers are bituminous coal and natural gas.

Emission limits for the four boilers were part of the 1981 Rochester SO2 SIP approved by EPA. On March 9, 2001 (66 FR 14087), EPA approved a Title V permit into the SIP entitled “Minnesota Air Emission Permit No. 10900011-001,” issued to RPU-SLP on July 22, 1997. This Title V permit included 24-hour average Total Ambient Culpability Weighted Emission Factor (TACWEF) equations that limited the facility to 2718.6 pounds per hour (lbs/hr) of SO2, to provide for attainment and maintenance of the SO2 National Ambient Air Quality Standards (NAAQS). Other SO2 SIP requirements were included in the Title V permit for operation of Continuous Emission Monitors (CEMs), recordkeeping, and reporting deviations.

The Title V permit also contained emission limits and control strategies for particulate matter (PM) with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10). These emission limits and control strategies were originally contained in an administrative order for RPU-SLP previously approved by EPA as part of the Rochester PM10 SIP on June 13, 1995 (60 FR 31088). EPA inadvertently omitted incorporating by reference the PM10 limits when the Title V permit replaced the administrative orders in Minnesota's SIP on March 9, 2001. These PM10 limits still apply to the facility and are included in the joint Title I/Title V document as Title I SIP conditions.

The SIP revision submitted by MPCA on October 16, 2007, consists of “Minnesota Air Emission Permit No. 10900011-004,” issued to RPU-SLP on September 7, 2007, which serves as a joint Title I/Title V document. The State has requested that EPA approve into the Minnesota SO2 SIP only the portions of the permit cited as “Title I Condition: State Implementation Plan for SO2” and “Title I Condition: State Implementation Plan for PM10.”

Minnesota held a public hearing regarding the SIP revision and the joint Title I/Title V document on August 23, 2007. The MPCA received one public comment in support of the Title V permit and SIP revision.

2. Why Is EPA Taking This Action?

EPA is taking this action because the State's SIP submittal for RPU-SLP is fully approvable. The SIP revision results in a substantial decrease in SO2 emissions and satisfies the applicable SO2 requirements of the CAA.

Under the 2001 SIP conditions, the four boilers are limited to a 3.2 lb/mmBtu emission limit for SO2 when operating alone, and to sulfur emission limits determined based on TACWEF equations when more than one unit is operating on coal at the same time. The facility's SIP approved PM10 limits are carried over into the joint Title I/Title V document and have not changed in content since they were approved by EPA in 1995.

RPU-SLP initiated changes to the facility to comply with the Clean Air Interstate Rule (CAIR) and to meet their Best Available Retrofit Technology (BART) obligations under the Regional Haze Rule. The changes also satisfy the terms of a 2006 settlement agreement between the Minnesota Center for Environmental Advocacy (MCEA), MPCA, and RPU-SLP, which resulted from MCEA's appeal of a previous permit amendment to RPU-SLP, “Air Emissions Permit No. 10900011-003” issued in 2004. Significant changes that occurred in that permit action included a decreased limit on the amount of coal burned per year and lower SO2 emission limits. A SIP revision was not required for the 2004 permit amendment because the SO2 limits in that permit satisfied the SO2 limits in the SIP. In order to meet the requirements of the settlement, RPU-SLP initiated a project to install additional pollution control equipment for SO2, PM, and Nitrogen Oxides (NOx) on Unit 4. A spray-dryer absorber, designed to achieve a 70-85% removal rate, will be installed to control SO2 and existing electrostatic precipitators will be replaced with fabric filters to control PM. The project will also involve building changes, including removal of an office building and the attachment of two equipment buildings to the north side boiler building. There are no physical changes being made to RPU-SLP Units 1-3.

The new SO2 limits incorporated from the joint Title I/Title V document into the SIP will be 2.3 lb/mmBtu for Units 1-3 for any unit when operating alone for all averaging times. New group limits of 1.9 lb/mmBtu limit for the 24-hour and 1-hour averaging times and 2.3 lb/mmBtu limit for the 3-hour averaging time will apply to Units 1-3 if more than one unit is operating on coal. These new group limits are more stringent than the SO2 limits currently in the SIP and will replace the TACWEF equations, which will be removed upon approval of the SIP revision. An interim SIP limit of 2.1 lb/mmBtu will apply to Unit 4 while the pollution control project is installed. This limit will be Start Printed Page 63068replaced by a final SIP limit of 0.6 lb/mmBtu for Unit 4 once the pollution control project is operational.

MPCA is currently preparing an update to the Rochester SO2 maintenance plan, as the Rochester area was redesignated to attainment of the SO2 NAAQS on March 9, 2001 (66 FR 14087). Section 175A of the CAA requires States to submit a revised maintenance plan eight years after redesignation of any area as an attainment area. MPCA has indicated that this maintenance plan update will include nearby sources, regional sources, background sources, and future growth. Revised air dispersion modeling was conducted for this SIP revision using the AERMOD model with Rochester meteorological data to ensure continued attainment of the SO2 NAAQS in the area. Based on the modeling results, the changes at RPU-SLP described above are projected to lower the air quality impacts from the facility, compared to emission limits currently allowed under the 2001 SIP. The modeling compared RPU-SLP's current operating scenario to the post-project scenario. EPA therefore finds the SIP revision is fully approvable because it results in a substantial decrease in SO2 emissions at RPU-SLP from what is allowed under the 2001 SIP, and subsequent lower SO2 ambient concentrations in the Rochester area.

3. What Is a “Title I Condition?”

SIP control measures were contained in permits issued to culpable sources in Minnesota until 1990 when EPA determined that limits in State-issued permits are not Federally enforceable because the permits expire. The State then issued permanent Administrative Orders to culpable sources in nonattainment areas from 1991 to February of 1996.

Minnesota's consolidated permitting regulations, approved into the Minnesota SIP on May 2, 1995 (60 FR 21447), include the term “Title I condition” which was written, in part, to satisfy EPA requirements that SIP control measures remain permanent. A “Title I condition” is defined as “any condition based on source-specific determination of ambient impacts imposed for the purposes of achieving or maintaining attainment with the [NAAQS] and which was part of the [SIP] approved by EPA or submitted to the EPA pending approval under section 110 of the act. * * *” The rule also states that “Title I conditions and the permittee's obligation to comply with them, shall not expire, regardless of the expiration of the other conditions of the permit.” Further, “any title I condition shall remain in effect without regard to permit expiration or reissuance, and shall be restated in the reissued permit.”

Minnesota has also initiated using joint Title I/Title V documents as the enforceable document for imposing emission limitations and compliance requirements in SIPs. The SIP requirements in joint Title I/Title V documents submitted by MPCA are cited as “Title I conditions,” therefore ensuring that SIP requirements remain permanent and enforceable. EPA reviewed the State's procedure for using joint Title I/Title V documents to implement site-specific SIP requirements and found it to be acceptable under both titles I and V of the CAA (July 3, 1997 letter from David Kee, EPA, to Michael J. Sandusky, MPCA). Further, a June 15, 2006, letter from EPA to MPCA clarifies procedures to transfer requirements from Administrative Orders to joint Title I/Title V documents.

II. What Action Is EPA Taking?

EPA is approving into the Minnesota SO2 SIP for the City of Rochester, Olmsted County, certain portions of Minnesota Air Emission Permit No. 10900011-004, issued to RPU-SLP on August 23, 2007. Specifically, EPA is only approving into the SIP those portions of the joint Title I/Title V document cited as “Title I Condition: State Implementation Plan for SO2” and “Title I Condition: State Implementation Plan for PM10.” In addition, EPA is removing from the Minnesota SO2 SIP all other references to Title I conditions for RPU-SLP that are not relevant to attainment of the NAAQS.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the State plan if relevant adverse written comments are filed. This rule will be effective February 1, 2010 without further notice unless we receive relevant adverse written comments by January 4, 2010. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective February 1, 2010.

III. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

  • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
  • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
  • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
  • 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);
  • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
  • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
  • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
  • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Act; and
  • 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 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct Start Printed Page 63069costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 February 1, 2010. 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).)

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List of Subjects in 40 CFR Part 52

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Dated: November 17, 2009.

Walter W. Kovalick Jr.,

Acting Regional Administrator, Region 5.

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is amended as follows:

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1. The authority citation for part 52 continues to read as follows:

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Authority: 42 U.S.C. 7401 et seq.

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Subpart Y—Minnesota

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2. In § 52.1220 the table in paragraph (d) is amended by revising the entry for “Rochester Public Utilities, Silver Lake Plant” to read as follows:

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Identification of plan.
* * * * *

(d) * * *

EPA-Approved Minnesota Source-Specific Permits

Name of sourcePermit No.State effective dateEPA approval dateComments
*         *         *         *         *         *         *
Rochester Public Utilities, Silver Lake Plant10900011-0049/7/07December 2, 2009, [Insert page number where the document begins]Only conditions cited as “Title I Condition: SIP for SO2” and “Title I Condition: SIP for PM10.”
*         *         *         *         *         *         *
* * * * *
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[FR Doc. E9-28681 Filed 12-1-09; 8:45 am]