[Federal Register Volume 89, Number 133 (Thursday, July 11, 2024)]
[Proposed Rules]
[Pages 56827-56847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14851]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2022-0974; FRL-12039-01-R5]
Air Plan Approval; Minnesota; Second Period Regional Haze Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve the Regional Haze State Implementation Plan (SIP) revision
submitted by the Minnesota Pollution Control Agency (Minnesota) on
December 20, 2022, as satisfying applicable requirements under the
Clean Air Act (CAA) and EPA's Regional Haze Rule (RHR) for the
program's second implementation period. Minnesota's SIP submission
addresses the requirement that states must periodically revise their
long-term strategies for making reasonable progress towards the
national goal of preventing any future, and remedying any existing,
anthropogenic impairment of visibility, including regional haze, in
mandatory Class I Federal areas. The SIP submission also addresses
other applicable requirements for the second implementation period of
the regional haze program. EPA is taking this action pursuant to
sections 110 and 169A of the CAA.
DATES: Written comments must be received on or before August 12, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2022-0974 at https://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment received to its public docket. Do not submit to EPA's
docket at https://www.regulations.gov any information you consider to
be confidential business information (CBI), Proprietary Business
Information (PBI), or other information whose disclosure is restricted
by statute. Multimedia submissions (audio, video, etc.) must be
accompanied by a written comment. The written comment is considered the
official comment and should include discussion of all points you wish
to make. EPA will generally not consider comments or comment contents
located outside of the primary submission (i.e., on the web, cloud, or
other file sharing system). For additional submission methods, please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section. For the full EPA public comment policy, information about CBI,
PBI, or multimedia submissions, and general guidance on making
effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Matt Rau, Air and Radiation Division
(AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-6524,
[email protected]. The EPA Region 5 office is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding Federal holidays.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. What action is EPA proposing?
II. Background and Requirements for Regional Haze Plans
A. Regional Haze Background
B. Roles of Agencies in Addressing Regional Haze
III. Requirements for Regional Haze Plans for the Second
Implementation Period
A. Identification of Class I Areas
B. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
C. Long-Term Strategy for Regional Haze
D. Reasonable Progress Goals
E. Monitoring Strategy and Other State Implementation Plan
Requirements
F. Requirements for Periodic Reports Describing Progress Towards
the Reasonable Progress Goals
G. Requirements for State and Federal Land Manager Coordination
IV. EPA's Evaluation of Minnesota's Regional Haze Submission for the
Second Implementation Period
A. Background on Minnesota's First Implementation Period SIP
Submission
B. Minnesota's Second Implementation Period SIP Submission and
EPA's Evaluation
C. Identification of Class I Areas
D. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
E. Long-Term Strategy for Regional Haze
1. Emission Measures Necessary To Make Reasonable Progress
2. EPA's Evaluation of Minnesota's Compliance With 40 CFR
51.308(f)(2)(i)
3. Additional Long-Term Strategy Requirements
F. Reasonable Progress Goals
G. Monitoring Strategy and Other Implementation Plan
Requirements
H. Requirements for Periodic Reports Describing Progress Towards
the Reasonable Progress Goals
I. Requirements for State and Federal Land Manager Coordination
V. Environmental Justice Considerations
VI. Proposed Action
VII. Incorporation by Reference
VIII. Statutory and Executive Order Reviews
I. What action is EPA proposing?
On December 20, 2022, Minnesota submitted a revision to its SIP to
address regional haze for the second implementation period. Minnesota
made this SIP submission to satisfy the requirements of the CAA's
regional haze program pursuant to CAA sections 169A and 169B and 40 CFR
51.308. EPA proposes to find that the Minnesota Regional Haze SIP
submission for the second implementation period meets the applicable
statutory and regulatory requirements. Thus, EPA proposes to approve
Minnesota's submission into its SIP.
II. Background and Requirements for Regional Haze Plans
A. Regional Haze Background
In the 1977 CAA Amendments, Congress created a program for
protecting visibility in the nation's mandatory Class I Federal areas,
which include certain national parks and wilderness areas.\1\ CAA 169A.
The CAA establishes as a national goal the ``prevention of any future,
and the remedying of any existing, impairment of visibility in
mandatory class I Federal areas which impairment results from manmade
air pollution.'' CAA 169A(a)(1). The CAA further directs EPA to
promulgate regulations to assure reasonable progress toward meeting
this national goal. CAA 169A(a)(4). On December 2, 1980, EPA
promulgated regulations addressing visibility
[[Page 56828]]
impairment in mandatory Class I Federal areas (hereinafter referred to
as ``Class I areas'') that is ``reasonably attributable'' to a single
source or small group of sources. (45 FR 80084, December 2, 1980).
These regulations, codified at 40 CFR 51.300 through 51.307,
represented the first phase of EPA's efforts to address visibility
impairment. In 1990, Congress added section 169B to the CAA to further
address visibility impairment, specifically, impairment from regional
haze. CAA 169B. EPA promulgated the RHR, codified at 40 CFR 51.308,\2\
on July 1, 1999. (64 FR 35714, July 1, 1999). These regional haze
regulations are a central component of EPA's comprehensive visibility
protection program for Class I areas.
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\1\ Areas statutorily designated as mandatory Class I Federal
areas consist of national parks exceeding 6,000 acres, wilderness
areas and national memorial parks exceeding 5,000 acres, and all
international parks that were in existence on August 7, 1977. CAA
162(a). There are 156 mandatory Class I areas. The list of areas to
which the requirements of the visibility protection program apply is
in 40 CFR part 81, subpart D.
\2\ In addition to the generally applicable regional haze
provisions at 40 CFR 51.308, EPA also promulgated regulations
specific to addressing regional haze visibility impairment in Class
I areas on the Colorado Plateau at 40 CFR 51.309. The latter
regulations are applicable only for specific jurisdictions' regional
haze plans submitted no later than December 17, 2007, and thus are
not relevant here.
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Regional haze is a visibility impairment that is produced by a
multitude of anthropogenic sources and activities that are located
across a broad geographic area and that emit pollutants that impair
visibility. Visibility impairing pollutants include fine and coarse
particulate matter (PM) (e.g., sulfates, nitrates, organic carbon,
elemental carbon, and soil dust) and their precursors (e.g., sulfur
dioxide (SO2), nitrogen oxides (NOX), and, in
some cases, volatile organic compounds (VOC) and ammonia
(NH3)). Fine particle precursors react in the atmosphere to
form fine particulate matter (PM2.5), which impairs
visibility by scattering and absorbing light. Visibility impairment
reduces the perception of clarity and color, as well as visible
distance.\3\
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\3\ There are several ways to measure the amount of visibility
impairment, i.e., haze. One such measurement is the deciview, which
is the principal metric used by the RHR. Under many circumstances, a
change in one deciview will be perceived by the human eye to be the
same on both clear and hazy days. The deciview is unitless. It is
proportional to the logarithm of the atmospheric extinction of
light, which is the perceived dimming of light due to its being
scattered and absorbed as it passes through the atmosphere.
Atmospheric light extinction (b\ext\) is a metric used to for
expressing visibility and is measured in inverse megameters
(Mm-1). EPA's Guidance on Regional Haze State
Implementation Plans for the Second Implementation Period (``2019
Guidance'') offers the flexibility for the use of light extinction
in certain cases. Light extinction can be simpler to use in
calculations than deciviews, since it is not a logarithmic function.
See, e.g., 2019 Guidance at 16, 19, https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period, EPA Office of Air Quality Planning and
Standards, Research Triangle Park (August 20, 2019). The formula for
the deciview is 10 ln (b\ext\)/10 Mm-1). 40 CFR 51.301.
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To address regional haze visibility impairment, the 1999 RHR
established an iterative planning process that requires both states in
which Class I areas are located and those states ``the emissions from
which may reasonably be anticipated to cause or contribute to any
impairment of visibility'' in a Class I area to periodically submit SIP
revisions to address such impairment. CAA 169A(b)(2); \4\ see also 40
CFR 51.308(b), (f) (establishing submission dates for iterative
regional haze SIP revisions); (64 FR 35768, July 1, 1999). Under the
CAA, each SIP submission must contain ``a long-term (ten to fifteen
years) strategy for making reasonable progress toward meeting the
national goal,'' CAA 169A(b)(2)(B); the initial round of SIP
submissions also had to address the statutory requirement that certain
older, larger sources of visibility impairing pollutants install and
operate the best available retrofit technology (BART). CAA
169A(b)(2)(A); 40 CFR 51.308(d), (e). States' first regional haze SIPs
were due by December 17, 2007, 40 CFR 51.308(b), with subsequent SIP
submissions containing updated long-term strategies originally due July
31, 2018, and every ten years thereafter. (64 FR 35768, July 1, 1999).
EPA established in the 1999 RHR that all states either have Class I
areas within their borders or ``contain sources whose emissions are
reasonably anticipated to contribute to regional haze in a Class I
area''; therefore, all states must submit regional haze SIPs.\5\ 64 FR
35721, July 1, 1999.
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\4\ The RHR expresses the statutory requirement for states to
submit plans addressing out-of-state class I areas by providing that
states must address visibility impairment ``in each mandatory Class
I Federal area located outside the State that may be affected by
emissions from within the State.'' 40 CFR 51.308(d), (f).
\5\ In addition to each of the fifty states, EPA also concluded
that the Virgin Islands and District of Columbia must also submit
regional haze SIPs because they either contain a Class I area or
contain sources whose emissions are reasonably anticipated to
contribute regional haze in a Class I area. See 40 CFR 51.300(b),
(d)(3).
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Much of the focus in the first implementation period of the
regional haze program, which ran from 2007 through 2018, was on
satisfying states' BART obligations. First implementation period SIPs
were additionally required to contain long-term strategies for making
reasonable progress toward the national visibility goal, of which BART
is one component. The core required elements for the first
implementation period SIPs (other than BART) are laid out in 40 CFR
51.308(d). Those provisions required that states containing Class I
areas establish reasonable progress goals (RPGs) that are measured in
deciviews (dv) and reflect the anticipated visibility conditions at the
end of the implementation period including from implementation of
states' long-term strategies. The first planning period RPGs were
required to provide for an improvement in visibility for the most
impaired days over the period of the implementation plan and ensure no
degradation in visibility for the least impaired days over the same
period. In establishing the RPGs for any Class I area in a state, the
state was required to consider four statutory factors: the costs of
compliance, the time necessary for compliance, the energy and non-air
quality environmental impacts of compliance, and the remaining useful
life of any potentially affected sources. CAA 169A(g)(1); 40 CFR
51.308(d)(1).
States were also required to calculate baseline (using the five
year period of 2000-2004) and natural visibility conditions (i.e.,
visibility conditions without anthropogenic visibility impairment) for
each Class I area, and to calculate the linear rate of progress needed
to attain natural visibility conditions, assuming a starting point of
baseline visibility conditions in 2004 and ending with natural
conditions in 2064. This linear interpolation is known as the uniform
rate of progress (URP) and is used as a tracking metric to help states
assess the amount of progress they are making towards the national
visibility goal over time in each Class I area.\6\ 40 CFR
51.308(d)(1)(i)(B), (d)(2). The 1999 RHR also provided that States'
long-term strategies must include the ``enforceable emissions
limitations, compliance, schedules, and other measures as necessary to
achieve the reasonable progress goals.'' 40 CFR 51.308(d)(3). In
establishing their long-term strategies, states are required to consult
with other states that also contribute to visibility impairment in a
given Class I area and include all measures necessary to obtain their
[[Page 56829]]
shares of the emission reductions needed to meet the RPGs. 40 CFR
51.308(d)(3)(i), (ii). Section 51.308(d) also contains seven additional
factors states must consider in formulating their long-term strategies,
40 CFR 51.308(d)(3)(v), as well as provisions governing monitoring and
other implementation plan requirements. 40 CFR 51.308(d)(4). Finally,
the 1999 RHR required states to submit periodic progress reports--SIP
revisions due every five years that contain information on states'
implementation of their regional haze plans and an assessment of
whether anything additional is needed to make reasonable progress, see
40 CFR 51.308(g), (h), and to consult with the Federal Land Manager(s)
\7\ (FLMs) responsible for each Class I area according to the
requirements in CAA 169A(d) and 40 CFR 51.308(i).
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\6\ EPA established the URP framework in the 1999 RHR to provide
``an equitable analytical approach'' to assessing the rate of
visibility improvement at Class I areas across the country. The
starting point for the URP analysis is 2004 and the endpoint was
calculated based on the amount of visibility improvement that was
anticipated to result from implementation of existing CAA programs
over the period from the mid-1990s to approximately 2005. Assuming
this rate of progress would continue into the future, EPA determined
that natural visibility conditions would be reached in 60 years, or
2064 (60 years from the baseline starting point of 2004). However,
EPA did not establish 2064 as the year by which the national goal
must be reached. 64 FR 35714 at 35731-32, July 1, 1999. That is, the
URP and the 2064 date are not enforceable targets but are rather
tools that ``allow for analytical comparisons between the rate of
progress that would be achieved by the state's chosen set of control
measures and the URP.'' (82 FR 3078 at 3084, January 10, 2017).
\7\ EPA's regulations define ``Federal Land Manager`` as ``the
Secretary of the department with authority over the Federal Class I
area (or the Secretary's designee) or, with respect to Roosevelt-
Campobello International Park, the Chairman of the Roosevelt-
Campobello International Park Commission.`` 40 CFR 51.301.
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On January 10, 2017, EPA promulgated revisions to the RHR, (82 FR
3078, January 10, 2017), that apply for the second and subsequent
implementation periods. The 2017 rulemaking made several changes to the
requirements for regional haze SIPs to clarify states' obligations and
streamline certain regional haze requirements. The revisions to the
regional haze program for the second and subsequent implementation
periods focused on the requirement that SIPs contain long-term
strategies for making reasonable progress towards the national
visibility goal. The reasonable progress requirements as revised in the
2017 rulemaking (referred to here as the 2017 RHR Revisions) are
codified at 40 CFR 51.308(f). Among other changes, the 2017 RHR
Revisions adjusted the deadline for states to submit their second
implementation period SIPs from July 31, 2018, to July 31, 2021,
clarified the order of analysis and the relationship between RPGs and
the long-term strategy, and focused on making visibility improvements
on the days with the most anthropogenic visibility impairment, as
opposed to the days with the most visibility impairment overall. EPA
also revised requirements of the visibility protection program related
to periodic progress reports and FLM consultation. The specific
requirements applicable to second implementation period regional haze
SIP submissions are addressed in detail below.
EPA provided guidance to the states for their second implementation
period SIP submissions in the preamble to the 2017 RHR Revisions as
well as in subsequent, stand-alone guidance documents. In August 2019,
EPA issued ``Guidance on Regional Haze State Implementation Plans for
the Second Implementation Period'' (``2019 Guidance'').\8\ On July 8,
2021, EPA issued a memorandum containing ``Clarifications Regarding
Regional Haze State Implementation Plans for the Second Implementation
Period'' (``2021 Clarifications Memo'').\9\ Additionally, EPA further
clarified the recommended procedures for processing ambient visibility
data and optionally adjusting the URP to account for international
anthropogenic and prescribed fire impacts in two technical guidance
documents: the December 2018 ``Technical Guidance on Tracking
Visibility Progress for the Second Implementation Period of the
Regional Haze Program'' (``2018 Visibility Tracking Guidance''),\10\
and the June 2020 ``Recommendation for the Use of Patched and
Substituted Data and Clarification of Data Completeness for Tracking
Visibility Progress for the Second Implementation Period of the
Regional Haze Program'' and associated Technical Addendum (``2020 Data
Completeness Memo'').\11\
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\8\ Guidance on Regional Haze State Implementation Plans for the
Second Implementation Period. https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period EPA Office of Air Quality Planning and
Standards, Research Triangle Park (August 20, 2019).
\9\ Clarifications Regarding Regional Haze State Implementation
Plans for the Second Implementation Period. https://www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf. EPA Office of Air Quality Planning and Standards,
Research Triangle Park (July 8, 2021).
\10\ Technical Guidance on Tracking Visibility Progress for the
Second Implementation Period of the Regional Haze Program. https://www.epa.gov/visibility/technical-guidance-tracking-visibility-progress-second-implementation-period-regional EPA Office of Air
Quality Planning and Standards, Research Triangle Park. (December
20, 2018).
\11\ Recommendation for the Use of Patched and Substituted Data
and Clarification of Data Completeness for Tracking Visibility
Progress for the Second Implementation Period of the Regional Haze
Program. https://www.epa.gov/visibility/memo-and-technical-addendum-ambient-data-usage-and-completeness-regional-haze-program EPA Office
of Air Quality Planning and Standards, Research Triangle Park (June
3, 2020).
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As explained in the 2021 Clarifications Memo, EPA intends the
second implementation period of the regional haze program to secure
meaningful reductions in visibility impairing pollutants that build on
the significant progress states have achieved to date. The Agency also
recognizes that analyses regarding reasonable progress are state-
specific and that, based on state and sources' individual
circumstances, what constitutes reasonable reductions in visibility
impairing pollutants will vary from state-to-state. While there exist
many opportunities for states to leverage both ongoing and upcoming
emission reductions under other CAA programs, the Agency expects states
to undertake rigorous reasonable progress analyses that identify
further opportunities to advance the national visibility goal
consistent with the statutory and regulatory requirements. See
generally 2021 Clarifications Memo. This is consistent with Congress's
determination that a visibility protection program is needed in
addition to the CAA's National Ambient Air Quality Standards (NAAQS)
and Prevention of Significant Deterioration programs, as further
emission reductions may be necessary to adequately protect visibility
in Class I areas throughout the country.\12\
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\12\ See, e.g., H.R. Rep No. 95-294 at 205 (``In determining how
to best remedy the growing visibility problem in these areas of
great scenic importance, the committee realizes that as a matter of
equity, the national ambient air quality standards cannot be revised
to adequately protect visibility in all areas of the country.''),
(``the mandatory class I increments of [the PSD program] do not
adequately protect visibility in class I areas'').
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B. Roles of Agencies in Addressing Regional Haze
Because the air pollutants and pollution affecting visibility in
Class I areas can be transported over long distances, successful
implementation of the regional haze program requires long-term,
regional coordination among multiple jurisdictions and agencies that
have responsibility for Class I areas and the emissions that impact
visibility in those areas. To address regional haze, states need to
develop strategies in coordination with one another, considering the
effect of emissions from one jurisdiction on the air quality in
another. Five regional planning organizations (RPOs),\13\ which include
representation from state and Tribal governments, EPA, and FLMs, were
developed in the lead-up to the first implementation period to address
regional haze. RPOs evaluate technical information to better understand
how emissions from State and Tribal land impact Class I areas across
the country, pursue the development of regional strategies to reduce
emissions of
[[Page 56830]]
particulate matter and other pollutants leading to regional haze, and
help states meet the consultation requirements of the RHR.
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\13\ RPOs are sometimes also referred to as ``multi-
jurisdictional organizations,'' or MJOs. For the purposes of this
action, the terms RPO and MJO are synonymous.
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The Lake Michigan Air Directors Consortium (LADCO), one of the five
RPOs described above, is a collaborative effort of state governments,
Tribal governments, and various Federal agencies established to
initiate and coordinate activities associated with the management of
regional haze, visibility, and other air quality issues in the Midwest.
LADCO member states are Illinois, Indiana, Michigan, Minnesota, Ohio,
and Wisconsin. The LADCO Regional Haze Technical Workgroup also
includes Tribes, Iowa, EPA, U.S. National Park Service (NPS), U.S. Fish
and Wildlife Service (FWS), and U.S. Forest Service (USFS).
III. Requirements for Regional Haze Plans for the Second Implementation
Period
Under the CAA and EPA's regulations, all 50 states, the District of
Columbia, and the U.S. Virgin Islands are required to submit regional
haze SIPs satisfying the applicable requirements for the second
implementation period of the regional haze program by July 31, 2021.
Each state's SIP must contain a long-term strategy for making
reasonable progress toward meeting the national goal of remedying any
existing and preventing any future anthropogenic visibility impairment
in Class I areas. CAA 169A(b)(2)(B). To this end, 40 CFR 51.308(f) lays
out the process by which states determine what constitutes their long-
term strategies, with the order of the requirements in 40 CFR
51.308(f)(1) through (3) generally mirroring the order of the steps in
the reasonable progress analysis \14\ and (f)(4) through (6) containing
additional, related requirements. Broadly speaking, a state first must
identify the Class I areas within the state and determine the Class I
areas outside the state in which visibility may be affected by
emissions from the state. These are the Class I areas that must be
addressed in the state's long-term strategy. See 40 CFR 51.308(f),
(f)(2). For each Class I area within its borders, a state must then
calculate the baseline, current, and natural visibility conditions for
that area, as well as the visibility improvement made to date and the
URP. See 40 CFR 51.308(f)(1). Each state having a Class I area and/or
emissions that may affect visibility in a Class I area then develops a
long-term strategy that includes the enforceable emission limitations,
compliance schedules, and other measures that are necessary to make
reasonable progress in such areas. A reasonable progress determination
is based on applying the four factors in CAA section 169A(g)(1) to
sources of visibility-impairing pollutants that the state has selected
to assess for controls for the second implementation period.
Additionally, as further explained below, the RHR at 40 CFR
51.308(f)(2)(iv) separately provides five ``additional factors'' \15\
that states must consider in developing their long-term strategies. See
40 CFR 51.308(f)(2). A state evaluates potential emission reduction
measures for those selected sources and determines which are necessary
to make reasonable progress. Those measures are then incorporated into
the state's long-term strategy. After a state has developed its long-
term strategy, it then establishes RPGs for each Class I area within
its borders by modeling the visibility impacts of all reasonable
progress controls at the end of the second implementation period, i.e.,
in 2028, as well as the impacts of other requirements of the CAA. The
RPGs include reasonable progress controls not only for sources in the
state in which the Class I area is located, but also for sources in
other states that contribute to visibility impairment in that area. The
RPGs are then compared to the baseline visibility conditions and the
URP to ensure that progress is being made towards the statutory goal of
preventing any future and remedying any existing anthropogenic
visibility impairment in Class I areas. 40 CFR 51.308(f)(2) and (3).
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\14\ EPA explained in the 2017 RHR Revisions that we were
adopting new regulatory language in 40 CFR 51.308(f) that, unlike
the structure in 40 CFR 51.308(d), ``tracked the actual planning
sequence.'' (82 FR 3078 at 3091, January 10, 2017).
\15\ The five ``additional factors'' for consideration in 40 CFR
51.308(f)(2)(iv) are distinct from the four factors listed in CAA
section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that states must
consider and apply to sources in determining reasonable progress.
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In addition to satisfying the requirements at 40 CFR 51.308(f)
related to reasonable progress, the regional haze SIP revisions for the
second implementation period must address the requirements in 40 CFR
51.308(g)(1) through (5) pertaining to periodic reports describing
progress towards the RPGs, 40 CFR 51.308(f)(5), as well as requirements
for FLM consultation that apply to all visibility protection SIPs and
SIP revisions. 40 CFR 51.308(i).
A state must submit its regional haze SIP and subsequent SIP
revisions to EPA according to the requirements applicable to all SIP
revisions under the CAA and EPA's regulations. See CAA 169A(b)(2); CAA
110(a). Upon EPA approval, a SIP is enforceable by the Agency and the
public under the CAA. If EPA finds that a state fails to make a
required SIP revision, or if EPA finds that a state's SIP is incomplete
or disapproves the SIP, the Agency must promulgate a Federal
Implementation Plan (FIP) that satisfies the applicable requirements.
CAA 110(c)(1).
A. Identification of Class I Areas
The first step in developing a regional haze SIP is for a state to
determine which Class I areas, in addition to those within its borders,
``may be affected'' by emissions from within the state. In the 1999
RHR, EPA determined that all states contribute to visibility impairment
in at least one Class I area, 64 FR 35714 at 35720-22, July 1, 1999,
and explained that the statute and regulations lay out an ``extremely
low triggering threshold'' for determining ``whether States should be
required to engage in air quality planning and analysis as a
prerequisite to determining the need for control of emissions from
sources within their State.'' 64 FR 35714 at 35721, July 1, 1999.
A state must determine which Class I areas must be addressed by its
SIP by evaluating the total emissions of visibility impairing
pollutants from all sources within the state. While the RHR does not
require this evaluation to be conducted in any particular manner, EPA's
2019 Guidance provides recommendations for how such an assessment might
be accomplished, including by using, where appropriate, the
determinations previously made for the first implementation period.
2019 Guidance at 8-9. In addition, the determination of which Class I
areas may be affected by a state's emissions is subject to the
requirement in 40 CFR 51.308(f)(2)(iii) to ``document the technical
basis, including modeling, monitoring, cost, engineering, and emissions
information, on which the State is relying to determine the emission
reduction measures that are necessary to make reasonable progress in
each mandatory Class I Federal area it affects.''
B. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
As part of assessing whether a SIP submission for the second
implementation period is providing for reasonable progress towards the
national visibility goal, the RHR contains requirements in 40 CFR
51.308(f)(1) related to tracking visibility improvement over time. The
requirements of this subsection apply only to states having Class I
areas within
[[Page 56831]]
their borders; the required calculations must be made for each such
Class I area. EPA's 2018 Visibility Tracking Guidance \16\ provides
recommendations to assist states in satisfying their obligations under
40 CFR 51.308(f)(1); specifically, in developing information on
baseline, current, and natural visibility conditions, and in making
optional adjustments to the URP to account for the impacts of
international anthropogenic emissions and prescribed fires. See 82 FR
3078 at 3103-05, January 10, 2017.
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\16\ The 2018 Visibility Tracking Guidance references and relies
on parts of the 2003 Tracking Guidance: ``Guidance for Tracking
Progress Under the Regional Haze Rule,'' which can be found at
https://www.epa.gov/sites/default/files/2021-03/documents/tracking.pdf.
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The RHR requires tracking of visibility conditions on two sets of
days: the clearest and the most impaired days. Visibility conditions
for both sets of days are expressed as the average deciview index for
the relevant five-year period (the period representing baseline or
current visibility conditions). The RHR provides that the relevant sets
of days for visibility tracking purposes are the 20 percent clearest
(the 20 percent of monitored days in a calendar year with the lowest
values of the deciview index) and 20 percent most impaired days (the 20
percent of monitored days in a calendar year with the highest amounts
of anthropogenic visibility impairment).\17\ 40 CFR 51.301. A state
must calculate visibility conditions for both the 20 percent clearest
and 20 percent most impaired days for the baseline period of 2000-2004
and the most recent five-year period for which visibility monitoring
data are available (representing current visibility conditions). 40 CFR
51.308(f)(1)(i), (iii). States must also calculate natural visibility
conditions for the clearest and most impaired days,\18\ by estimating
the conditions that would exist on those two sets of days absent
anthropogenic visibility impairment. 40 CFR 51.308(f)(1)(ii). Using all
these data, states must then calculate, for each Class I area, the
amount of progress made since the baseline period (2000-2004) and how
much improvement is left to achieve to reach natural visibility
conditions.
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\17\ This action also refers to the 20 percent clearest and 20
percent most anthropogenically impaired days as the ``clearest'' and
``most impaired'' or ``most anthropogenically impaired'' days,
respectively.
\18\ The RHR at 40 CFR 51.308(f)(1)(ii) contains an error
related to the requirement for calculating two sets of natural
conditions values. The rule says, ``most impaired days or the
clearest days'' where it should say ``most impaired days and
clearest days.'' This is an error that was intended to be corrected
in the 2017 RHR Revisions but did not get corrected in the final
rule language. This is supported by the preamble text at 82 FR 3078
at 3098 January 10, 2017: ``In the final version of 40 CFR
51.308(f)(1)(ii), an occurrence of ``or'' has been corrected to
``and'' to indicate that natural visibility conditions for both the
most impaired days and the clearest days must be based on available
monitoring information.''
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Using the data for the set of most impaired days only, states must
plot a line between visibility conditions in the baseline period and
natural visibility conditions for each Class I area to determine the
URP--the amount of visibility improvement, measured in dv, that would
need to be achieved during each implementation period to achieve
natural visibility conditions by the end of 2064. The URP is used in
later steps of the reasonable progress analysis for informational
purposes and to provide a non-enforceable benchmark against which to
assess a Class I area's rate of visibility improvement.\19\
Additionally, in the 2017 RHR Revisions, EPA provided states the option
of proposing to adjust the endpoint of the URP to account for impacts
of anthropogenic sources outside the United States and/or impacts of
certain types of wildland prescribed fires. These adjustments, which
must be approved by EPA, are intended to avoid any perception that
states should compensate for impacts from international anthropogenic
sources and to give states the flexibility to determine that limiting
the use of wildland-prescribed fire is not necessary for reasonable
progress. 82 FR 3078 at 3107 footnote 116, January 10, 2017.
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\19\ Being on or below the URP is not a ``safe harbor''; i.e.,
achieving the URP does not mean that a Class I area is making
``reasonable progress'' and does not relieve a state from using the
four statutory factors to determine what level of control is needed
to achieve such progress. See, e.g., 82 FR 3078 at 3093, January 10,
2017.
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EPA's 2018 Visibility Tracking Guidance can be used to help satisfy
the 40 CFR 51.308(f)(1) requirements, including in developing
information on baseline, current, and natural visibility conditions,
and in making optional adjustments to the URP. In addition, the 2020
Data Completeness Memo provides recommendations on the data
completeness language referenced in 40 CFR 51.308(f)(1)(i) and provides
updated natural conditions estimates for each Class I area.
C. Long-Term Strategy for Regional Haze
The core component of a regional haze SIP submission is a long-term
strategy that addresses regional haze in each Class I area within a
state's borders and each Class I area that may be affected by emissions
from the state. The long-term strategy ``must include the enforceable
emissions limitations, compliance schedules, and other measures that
are necessary to make reasonable progress, as determined pursuant to
(f)(2)(i) through (iv).'' 40 CFR 51.308(f)(2). The amount of progress
that is ``reasonable progress'' is based on applying the four statutory
factors in CAA section 169A(g)(1) in an evaluation of potential control
options for sources of visibility impairing pollutants, which is
referred to as a ``four-factor'' analysis. The outcome of that analysis
is the emission reduction measures that a particular source or group of
sources needs to implement to make reasonable progress towards the
national visibility goal. See 40 CFR 51.308(f)(2)(i). Emission
reduction measures that are necessary to make reasonable progress may
be either new, additional control measures for a source, or they may be
the existing emission reduction measures that a source is already
implementing. See 2019 Guidance at 43; 2021 Clarifications Memo at 8-
10. Such measures must be represented by ``enforceable emissions
limitations, compliance schedules, and other measures'' (i.e., any
additional compliance tools) in a state's long-term strategy in its
SIP. 40 CFR 51.308(f)(2).
The regulation 40 CFR 51.308(f)(2)(i) provides the requirements for
the four-factor analysis. The first step of this analysis entails
selecting the sources to be evaluated for emission reduction measures;
to this end, the RHR requires states to consider ``major and minor
stationary sources or groups of sources, mobile sources, and area
sources'' of visibility impairing pollutants for potential four-factor
control analysis. 40 CFR 51.308(f)(2)(i). A threshold question at this
step is which visibility impairing pollutants will be analyzed. As EPA
previously explained, consistent with the first implementation period,
EPA generally expects that each state will analyze at least
SO2 and NOX in selecting sources and determining
control measures. See 2019 Guidance at 12, 2021 Clarifications Memo at
4. A state that chooses not to consider at least these two pollutants
should demonstrate why such consideration would be unreasonable. 2021
Clarifications Memo at 4.
While states have the option to analyze all sources, the 2019
Guidance explains that ``an analysis of control measures is not
required for every source in each implementation period,'' and that
``[s]electing a set of sources for analysis of control measures in each
implementation period is . . . consistent with the Regional Haze Rule,
which sets up an iterative planning process and anticipates that a
state may
[[Page 56832]]
not need to analyze control measures for all its sources in a given SIP
revision.'' 2019 Guidance at 9. However, given that source selection is
the basis of all subsequent control determinations, a reasonable source
selection process ``should be designed and conducted to ensure that
source selection results in a set of pollutants and sources the
evaluation of which has the potential to meaningfully reduce their
contributions to visibility impairment.'' 2021 Clarifications Memo at
3.
EPA explained in the 2021 Clarifications Memo that each state has
an obligation to submit a long-term strategy that addresses the
regional haze visibility impairment that results from emissions from
within that state. Thus, source selection should focus on the in-state
contribution to visibility impairment and be designed to capture a
meaningful portion of the state's total contribution to visibility
impairment in Class I areas. A state should not decline to select its
largest in-state sources on the basis that there are even larger out-
of-state contributors. 2021 Clarifications Memo at 4.\20\
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\20\ Similarly, in responding to comments on the 2017 RHR
Revisions EPA explained that ``[a] state should not fail to address
its many relatively low-impact sources merely because it only has
such sources and another state has even more low-impact sources and/
or some high impact sources.'' Responses to Comments on Protection
of Visibility: Amendments to Requirements for State Plans; Proposed
Rule (81 FR 26942, May 4, 2016) at 87-88.
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Thus, while states have discretion to choose any source selection
methodology that is reasonable, whatever choices they make should be
reasonably explained. To this end, 40 CFR 51.308(f)(2)(i) requires that
a state's SIP submission include ``a description of the criteria it
used to determine which sources or groups of sources it evaluated.''
The technical basis for source selection, which may include methods for
quantifying potential visibility impacts such as emissions divided by
distance (Q/d) metrics, trajectory analyses, residence time analyses,
and/or photochemical modeling, must also be appropriately documented,
as required by 40 CFR 51.308(f)(2)(iii).
Once a state has selected the set of sources, the next step is to
determine the emissions reduction measures for those sources that are
necessary to make reasonable progress for the second implementation
period.\21\ This is accomplished by considering the four factors: ``the
costs of compliance, the time necessary for compliance, and the energy
and non-air quality environmental impacts of compliance, and the
remaining useful life of any existing source subject to such
requirements.'' CAA 169A(g)(1). EPA has explained that the four-factor
analysis is an assessment of potential emission reduction measures
(i.e., control options) for sources; ``use of the terms `compliance'
and `subject to such requirements' in section 169A(g)(1) strongly
indicates that Congress intended the relevant determination to be the
requirements with which sources would have to comply to satisfy the
CAA's reasonable progress mandate.'' 82 FR 3078 at 3091, January 10,
2017. Thus, for each source it has selected for four-factor
analysis,\22\ a state must consider a ``meaningful set'' of technically
feasible control options for reducing emissions of visibility impairing
pollutants. 82 FR 3078 at 3088, January 10, 2017. The 2019 Guidance
provides that ``[a] state must reasonably pick and justify the measures
that it will consider, recognizing that there is no statutory or
regulatory requirement to consider all technically feasible measures or
any particular measures. A range of technically feasible measures
available to reduce emissions would be one way to justify a reasonable
set.'' 2019 Guidance at 29.
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\21\ The CAA provides that, ``[i]n determining reasonable
progress there shall be taken into consideration'' the four
statutory factors. CAA 169A(g)(1). However, in addition to four-
factor analyses for selected sources, groups of sources, or source
categories, a state may also consider additional emission reduction
measures for inclusion in its long-term strategy, e.g., from other
newly adopted, on-the-books, or on-the-way rules and measures for
sources not selected for four-factor analysis for the second
planning period.
\22\ ``Each source'' or ``particular source'' is used here as
shorthand. While a source-specific analysis is one way of applying
the four factors, neither the statute nor the RHR requires states to
evaluate individual sources. Rather, states have ``the flexibility
to conduct four-factor analyses for specific sources, groups of
sources or even entire source categories, depending on state policy
preferences and the specific circumstances of each state.'' 82 FR
3078 at 3088, January 10, 2017. However, not all approaches to
grouping sources for four-factor analysis are necessarily
reasonable; the reasonableness of grouping sources in any particular
instance will depend on the circumstances and the manner in which
grouping is conducted. If it is feasible to establish and enforce
different requirements for sources or subgroups of sources, and if
relevant factors can be quantified for those sources or subgroups,
then states should make a separate reasonable progress determination
for each source or subgroup. 2021 Clarifications Memo at 7-8.
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EPA's 2021 Clarifications Memo provides further guidance on what
constitutes a reasonable set of control options for consideration: ``A
reasonable four-factor analysis will consider the full range of
potentially reasonable options for reducing emissions.'' 2021
Clarifications Memo at 7. In addition to add-on controls and other
retrofits (i.e., new emissions reduction measures for sources), EPA
explained that states should generally analyze efficiency improvements
for sources' existing measures as control options in their four-factor
analyses, as in many cases such improvements are reasonable given that
they typically involve only additional operation and maintenance costs.
Additionally, the 2021 Clarifications Memo provides that states that
have assumed a higher emissions rate than a source has achieved or
could potentially achieve using its existing measures should also
consider lower emissions rates as potential control options. That is, a
state should consider a source's recent actual and projected emission
rates to determine if it could reasonably attain lower emission rates
with its existing measures. If so, the state should analyze the lower
emission rate as a control option for reducing emissions. 2021
Clarifications Memo at 7. EPA's recommendations to analyze potential
efficiency improvements and achievable lower emission rates apply to
both sources that have been selected for four-factor analysis and those
that have forgone a four-factor analysis on the basis of existing
``effective controls.'' See 2021 Clarifications Memo at 5, 10.
After identifying a reasonable set of potential control options for
the sources it has selected, a state then collects information on the
four factors with regard to each option identified. EPA has also
explained that, in addition to the four statutory factors, states have
flexibility under the CAA and RHR to reasonably consider visibility
benefits as an additional factor alongside the four statutory
factors.\23\ The 2019 Guidance provides recommendations for the types
of information that can be used to characterize the four factors (with
or without visibility), as well as ways in which states might
reasonably consider and balance that information to determine which of
the potential control options is necessary to make reasonable progress.
See 2019 Guidance at 30-36. The 2021 Clarifications Memo contains
further guidance on how states can reasonably consider modeled
visibility impacts or benefits in the context of a four-factor
analysis. 2021 Clarifications Memo at 12-13, 14-15. Specifically, EPA
explained that while visibility can reasonably be used when comparing
and choosing between multiple reasonable control options, it should not
be used to summarily reject controls that are reasonable given the four
[[Page 56833]]
statutory factors. 2021 Clarifications Memo at 13. Ultimately, while
states have discretion to reasonably weigh the factors and to determine
what level of control is needed, 40 CFR 51.308(f)(2)(i) provides that a
state ``must include in its implementation plan a description of . . .
how the four factors were taken into consideration in selecting the
measure for inclusion in its long-term strategy.''
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\23\ See, e.g., Responses to Comments on Protection of
Visibility: Amendments to Requirements for State Plans; Proposed
Rule (81 FR 26942, May 4, 2016), Docket Number EPA-HQ-OAR-2015-0531,
U.S. Environmental Protection Agency at 186; 2019 Guidance at 36-37.
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As explained above, 40 CFR 51.308(f)(2)(i) requires states to
determine the emission reduction measures for sources that are
necessary to make reasonable progress by considering the four factors.
Pursuant to 40 CFR 51.308(f)(2), measures that are necessary to make
reasonable progress towards the national visibility goal must be
included in a state's long-term strategy and in its SIP.\24\ If the
outcome of a four-factor analysis is a new, additional emission
reduction measure for a source, that new measure is necessary to make
reasonable progress towards remedying existing anthropogenic visibility
impairment and must be included in the SIP. If the outcome of a four-
factor analysis is that no new measures are reasonable for a source,
continued implementation of the source's existing measures is generally
necessary to prevent future emission increases and thus to make
reasonable progress towards the second part of the national visibility
goal: preventing future anthropogenic visibility impairment. See CAA
169A(a)(1). That is, when the result of a four-factor analysis is that
no new measures are necessary to make reasonable progress, the source's
existing measures are generally necessary to make reasonable progress
and must be included in the SIP. However, there may be circumstances in
which a state can demonstrate that a source's existing measures are not
necessary to make reasonable progress. Specifically, if a state can
demonstrate that a source will continue to implement its existing
measures and will not increase its emissions rate, it may not be
necessary to have those measures in the long-term strategy to prevent
future emissions increases and future visibility impairment. EPA's 2021
Clarifications Memo provides further explanation and guidance on how
states may demonstrate that a source's existing measures are not
necessary to make reasonable progress. See 2021 Clarifications Memo at
8-10. If the state can make such a demonstration, it need not include a
source's existing measures in the long-term strategy or its SIP.
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\24\ States may choose to, but are not required to, include
measures in their long-term strategies beyond just the emission
reduction measures that are necessary for reasonable progress. See
2021 Clarifications Memo at 16. For example, states with smoke
management programs may choose to submit their smoke management
plans to EPA for inclusion in their SIPs but are not required to do
so. See, e.g., 82 FR 3078 at 3108-09, January 10, 2017 (requirement
to consider smoke management practices and smoke management programs
under 40 CFR 51.308(f)(2)(iv) does not require states to adopt such
practices or programs into their SIPs, although they may elect to do
so).
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As with source selection, the characterization of information on
each of the factors is also subject to the documentation requirement in
40 CFR 51.308(f)(2)(iii). The reasonable progress analysis, including
source selection, information gathering, characterization of the four
statutory factors (and potentially visibility), balancing of the four
factors, and selection of the emission reduction measures that
represent reasonable progress, is a technically complex exercise, but
also a flexible one that provides states with bounded discretion to
design and implement approaches appropriate to their circumstances.
Given this flexibility, 40 CFR 51.308(f)(2)(iii) plays an important
function in requiring a state to document the technical basis for its
decision making so that the public and EPA can comprehend and evaluate
the information and analysis the state relied upon to determine what
emission reduction measures must be in place to make reasonable
progress. The technical documentation must include the modeling,
monitoring, cost, engineering, and emissions information on which the
state relied to determine the measures necessary to make reasonable
progress. This documentation requirement can be met through the
provision of and reliance on technical analyses developed through a
regional planning process, so long as that process and its output has
been approved by all state participants. In addition to the explicit
regulatory requirement to document the technical basis of their
reasonable progress determinations, states are also subject to the
general principle that those determinations must be reasonably moored
to the statute.\25\ That is, a state's decisions about the emission
reduction measures that are necessary to make reasonable progress must
be consistent with the statutory goal of remedying existing and
preventing future visibility impairment.
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\25\ See Arizona ex rel. Darwin v. U.S. EPA, 815 F.3d 519, 531
(9th Cir. 2016); Nebraska v. U.S. EPA, 812 F.3d 662, 668 (8th Cir.
2016); North Dakota v. EPA, 730 F.3d 750, 761 (8th Cir. 2013);
Oklahoma v. EPA, 723 F.3d 1201, 1206, 1208-10 (10th Cir. 2013); cf.
also Nat'l Parks Conservation Ass'n v. EPA, 803 F.3d 151, 165 (3d
Cir. 2015); Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S.
461, 485, 490 (2004).
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The four statutory factors (and potentially visibility) are used to
determine what emission reduction measures for selected sources must be
included in a state's long-term strategy for making reasonable
progress. Additionally, the RHR at 40 CFR 51.308(f)(2)(iv) separately
provides five ``additional factors'' \26\ that states must consider in
developing their long-term strategies: (1) emission reductions due to
ongoing air pollution control programs, including measures to address
reasonably attributable visibility impairment (RAVI); (2) measures to
reduce the impacts of construction activities; (3) source retirement
and replacement schedules; (4) basic smoke management practices for
prescribed fire used for agricultural and wildland vegetation
management purposes and smoke management programs; and (5) the
anticipated net effect on visibility due to projected changes in point,
area, and mobile source emissions over the period addressed by the
long-term strategy. The 2019 Guidance provides that a state may satisfy
this requirement by considering these additional factors in the process
of selecting sources for four-factor analysis, when performing that
analysis, or both, and that not every one of the additional factors
needs to be considered at the same stage of the process. See 2019
Guidance at 21. EPA provided further guidance on the five additional
factors in the 2021 Clarifications Memo, explaining that a state should
generally not reject cost-effective and otherwise reasonable controls
merely because there have been emission reductions since the first
planning period owing to other ongoing air pollution control programs
or merely because visibility is otherwise projected to improve at Class
I areas. Additionally, states generally should not rely on these
additional factors to summarily assert that the state has already made
sufficient progress and, therefore, no sources need to be selected or
no new controls are needed regardless of the outcome of four-factor
analyses. 2021 Clarifications Memo at 13.
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\26\ The five ``additional factors'' for consideration in 40 CFR
51.308(f)(2)(iv) are distinct from the four factors listed in CAA
section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that states must
consider and apply to sources in determining reasonable progress.
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Because the air pollution that causes regional haze crosses state
boundaries, 40 CFR 51.308(f)(2)(ii) requires a state to consult with
other states that also have emissions that are reasonably anticipated
to contribute to visibility impairment in a given Class I area.
[[Page 56834]]
Consultation allows for each state that impacts visibility in an area
to share whatever technical information, analyses, and control
determinations may be necessary to develop coordinated emission
management strategies. This coordination may be managed through inter-
and intra-RPO consultation and the development of regional emissions
strategies; additional consultations between states outside of RPO
processes may also occur. If a state, pursuant to consultation, agrees
that certain measures (e.g., a certain emission limitation) are
necessary to make reasonable progress at a Class I area, it must
include those measures in its SIP. 40 CFR 51.308(f)(2)(ii)(A).
Additionally, the RHR requires that states that contribute to
visibility impairment at the same Class I area consider the emission
reduction measures the other contributing states have identified as
being necessary to make reasonable progress for their own sources. 40
CFR 51.308(f)(2)(ii)(B). If a state has been asked to consider or adopt
certain emission reduction measures, but ultimately determines those
measures are not necessary to make reasonable progress, that state must
document in its SIP the actions taken to resolve the disagreement. 40
CFR 51.308(f)(2)(ii)(C). EPA will consider the technical information
and explanations presented by the submitting state and the state with
which it disagrees when considering whether to approve the state's SIP.
See id.; 2019 Guidance at 53. Under all circumstances, a state must
document in its SIP submission all substantive consultations with other
contributing states. 40 CFR 51.308(f)(2)(ii)(C).
D. Reasonable Progress Goals
Reasonable progress goals ``measure the progress that is projected
to be achieved by the control measures states have determined are
necessary to make reasonable progress based on a four-factor
analysis.'' 82 FR 3078 at 3091, January 10, 2017. Their primary purpose
is to assist the public and EPA in assessing the reasonableness of
states' long-term strategies for making reasonable progress towards the
national visibility goal. See 40 CFR 51.308(f)(3)(iii) and (iv). States
in which Class I areas are located must establish two RPGs, both in
dv--one representing visibility conditions on the clearest days and one
representing visibility on the most anthropogenically impaired days--
for each area within their borders. 40 CFR 51.308(f)(3)(i). The two
RPGs are intended to reflect the projected impacts, on the two sets of
days, of the emission reduction measures the state with the Class I
area, as well as all other contributing states, have included in their
long-term strategies for the second implementation period.\27\ The RPGs
also account for the projected impacts of implementing other CAA
requirements, including non-SIP based requirements. Because RPGs are
the modeled result of the measures in states' long-term strategies (as
well as other measures required under the CAA), they cannot be
determined before states have conducted their four-factor analyses and
determined the control measures that are necessary to make reasonable
progress. See 2021 Clarifications Memo at 6.
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\27\ RPGs are intended to reflect the projected impacts of the
measures all contributing states include in their long-term
strategies. However, due to the timing of analyses and of control
determinations by other states, other on-going emissions changes, a
particular state's RPGs may not reflect all control measures and
emissions reductions that are expected to occur by the end of the
implementation period. The 2019 Guidance provides recommendations
for addressing the timing of RPG calculations when states are
developing their long-term strategies on disparate schedules, as
well as for adjusting RPGs using a post-modeling approach. 2019
Guidance at 47-48.
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For the second implementation period, the RPGs are set for 2028.
Reasonable progress goals are not enforceable targets, 40 CFR
51.308(f)(3)(iii); rather, they ``provide a way for the states to check
the projected outcome of the [long-term strategy] against the goals for
visibility improvement.'' 2019 Guidance at 46. While states are not
legally obligated to achieve the visibility conditions described in
their RPGs, 40 CFR 51.308(f)(3)(i) requires that ``[t]he long-term
strategy and the reasonable progress goals must provide for an
improvement in visibility for the most impaired days since the baseline
period and ensure no degradation in visibility for the clearest days
since the baseline period.'' Thus, states are required to have emission
reduction measures in their long-term strategies that are projected to
achieve visibility conditions on the most impaired days that are better
than the baseline period and shows no degradation on the clearest days
compared to the clearest days from the baseline period. The baseline
period for the purpose of this comparison is the baseline visibility
condition--the annual average visibility condition for the period 2000-
2004. See 40 CFR 51.308(f)(1)(i), 82 FR 3078 at 3097-98, January 10,
2017.
So that RPGs may also serve as a metric for assessing the amount of
progress a state is making towards the national visibility goal, the
RHR requires states with Class I areas to compare the 2028 RPG for the
most impaired days to the corresponding point on the URP line
(representing visibility conditions in 2028 if visibility were to
improve at a linear rate from conditions in the baseline period of
2000-2004 to natural visibility conditions in 2064). If the most
impaired days RPG in 2028 is above the URP (i.e., if visibility
conditions are improving more slowly than the rate described by the
URP), each state that contributes to visibility impairment in the Class
I area must demonstrate, based on the four-factor analysis required
under 40 CFR 51.308(f)(2)(i), that no additional emission reduction
measures would be reasonable to include in its long-term strategy. 40
CFR 51.308(f)(3)(ii). To this end, 40 CFR 51.308(f)(3)(ii) requires
that each state contributing to visibility impairment in a Class I area
that is projected to improve more slowly than the URP provide ``a
robust demonstration, including documenting the criteria used to
determine which sources or groups [of] sources were evaluated and how
the four factors required by paragraph (f)(2)(i) were taken into
consideration in selecting the measures for inclusion in its long-term
strategy.'' The 2019 Guidance provides suggestions about how such a
``robust demonstration'' might be conducted. See 2019 Guidance at 50-
51.
The 2017 RHR, 2019 Guidance, and 2021 Clarifications Memo also
explain that projecting an RPG that is on or below the URP based on
only on-the-books and/or on-the-way control measures (i.e., control
measures already required or anticipated before the four-factor
analysis is conducted) is not a ``safe harbor'' from the CAA's and
RHR's requirement that all states must conduct a four-factor analysis
to determine what emission reduction measures constitute reasonable
progress. The URP is a planning metric used to gauge the amount of
progress made thus far and the amount left before reaching natural
visibility conditions. However, the URP is not based on consideration
of the four statutory factors and therefore cannot answer the question
of whether the amount of progress being made in any particular
implementation period is ``reasonable progress.'' See 82 FR 3078 at
3093, 3099-3100, January 10, 2017; 2019 Guidance at 22; 2021
Clarifications Memo at 15-16.
E. Monitoring Strategy and Other State Implementation Plan Requirements
Section 51.308(f)(6) requires states to have certain strategies and
elements in place for assessing and reporting on visibility. Individual
requirements
[[Page 56835]]
under this subsection apply either to states with Class I areas within
their borders, states with no Class I areas but that are reasonably
anticipated to cause or contribute to visibility impairment in any
Class I area, or both. A state with Class I areas within its borders
must submit with its SIP revision a monitoring strategy for measuring,
characterizing, and reporting regional haze visibility impairment that
is representative of all Class I areas within the state. SIP revisions
for such states must also provide for the establishment of any
additional monitoring sites or equipment needed to assess visibility
conditions in Class I areas, as well as reporting of all visibility
monitoring data to EPA at least annually. Compliance with the
monitoring strategy requirement may be met through a state's
participation in the Interagency Monitoring of Protected Visual
Environments (IMPROVE) monitoring network, which is used to measure
visibility impairment caused by air pollution at the 156 Class I areas
covered by the visibility program. 40 CFR 51.308(f)(6), (f)(6)(i), and
(iv). The IMPROVE monitoring data is used to determine the 20% most
anthropogenically impaired and 20% clearest sets of days every year at
each Class I area and tracks visibility impairment over time.
All states' SIPs must provide for procedures by which monitoring
data and other information are used to determine the contribution of
emissions from within the state to regional haze visibility impairment
in affected Class I areas. 40 CFR 51.308(f)(6)(ii), (iii). Section
51.308(f)(6)(v) further requires that all states' SIPs provide for a
statewide inventory of emissions of pollutants that are reasonably
anticipated to cause or contribute to visibility impairment in any
Class I area; the inventory must include emissions for the most recent
year for which data are available and estimates of future projected
emissions. States must also include commitments to update their
inventories periodically. The inventories themselves do not need to be
included as elements in the SIP and are not subject to EPA review as
part of the Agency's evaluation of a SIP revision.\28\ All states' SIPs
must also provide for any other elements, including reporting,
recordkeeping, and other measures, that are necessary for states to
assess and report on visibility. 40 CFR 51.308(f)(6)(vi). Per the 2019
Guidance, a state may note in its regional haze SIP that its compliance
with the Air Emissions Reporting Rule in 40 CFR part 51 subpart A
satisfies the requirement to provide for an emissions inventory for the
most recent year for which data are available. To satisfy the
requirement to provide estimates of future projected emissions, a state
may explain in its SIP how projected emissions were developed for use
in establishing RPGs for its own and nearby Class I areas.\29\
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\28\ See ``Step 8: Additional requirements for regional haze
SIPs'' in 2019 Guidance at 55.
\29\ Id.
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Separate from the requirements related to monitoring for regional
haze purposes under 40 CFR 51.308(f)(6), the RHR also contains a
requirement at 40 CFR 51.308(f)(4) related to any additional monitoring
that may be needed to address visibility impairment in Class I areas
from a single source or a small group of sources. This is called
``reasonably attributable visibility impairment.'' \30\ Under this
provision, if EPA or the FLM of an affected Class I area has advised a
state that additional monitoring is needed to assess RAVI, the state
must include in its SIP revision for the second implementation period
an appropriate strategy for evaluating such impairment.
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\30\ EPA's visibility protection regulations define ``reasonably
attributable visibility impairment'' as ``visibility impairment that
is caused by the emission of air pollutants from one, or a small
number of sources.'' 40 CFR 51.301.
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F. Requirements for Periodic Reports Describing Progress Towards the
Reasonable Progress Goals
Section 51.308(f)(5) requires a state's regional haze SIP revision
to address the requirements of paragraphs 40 CFR 51.308(g)(1) through
(5) so that the plan revision due in 2021 will serve also as a progress
report addressing the period since submission of the progress report
for the first implementation period. The regional haze progress report
requirement is designed to inform the public and EPA about a state's
implementation of its existing long-term strategy and whether such
implementation is in fact resulting in the expected visibility
improvement. See 81 FR 26942 at 26950 (May 4, 2016), (82 FR 3078 at
3119, January 10, 2017). To this end, every state's SIP revision for
the second implementation period is required to describe the status of
implementation of all measures included in the state's long-term
strategy, including BART and reasonable progress emission reduction
measures from the first implementation period, and the resulting
emissions reductions. 40 CFR 51.308(g)(1) and (2).
A core component of the progress report requirements is an
assessment of changes in visibility conditions on the clearest and most
impaired days. For second implementation period progress reports, 40
CFR 51.308(g)(3) requires states with Class I areas within their
borders to first determine current visibility conditions for each area
on the most impaired and clearest days, 40 CFR 51.308(g)(3)(i), and
then to calculate the difference between those current conditions and
baseline (2000-2004) visibility conditions to assess progress made to
date. See 40 CFR 51.308(g)(3)(ii). States must also assess the changes
in visibility impairment for the most impaired and clearest days since
they submitted their first implementation period progress reports. See
40 CFR 51.308(f)(5) and (g)(3)(iii). Since different states submitted
their first implementation period progress reports at different times,
the starting point for this assessment will vary state by state.
Similarly, states must provide analyses tracking the change in
emissions of pollutants contributing to visibility impairment from all
sources and activities within the state over the period since they
submitted their first implementation period progress reports. See 40
CFR 51.308(f)(5) and (g)(4). Changes in emissions should be identified
by the type of source or activity. Section 51.308(g)(5) also addresses
changes in emissions since the period addressed by the previous
progress report and requires states' SIP revisions to include an
assessment of any significant changes in anthropogenic emissions within
or outside the state. This assessment must explain whether these
changes in emissions were anticipated and whether they have limited or
impeded progress in reducing emissions and improving visibility
relative to what the state projected based on its long-term strategy
for the first implementation period.
G. Requirements for State and Federal Land Manager Coordination
CAA section 169A(d) requires that before a state holds a public
hearing on a proposed regional haze SIP revision, it must consult with
the appropriate FLM or FLMs; pursuant to that consultation, the state
must include a summary of the FLMs' conclusions and recommendations in
the notice to the public. Consistent with this statutory requirement,
the RHR also requires that states ``provide the [FLM] with an
opportunity for consultation, in person and at a point early enough in
the State's policy analyses of its long-term strategy emission
reduction obligation so that information and recommendations provided
by the [FLM] can meaningfully inform the
[[Page 56836]]
State's decisions on the long-term strategy.'' 40 CFR 51.308(i)(2).
Consultation that occurs 120 days prior to any public hearing or public
comment opportunity will be deemed ``early enough,'' but the RHR
provides that in any event the opportunity for consultation must be
provided at least 60 days before a public hearing or comment
opportunity. This consultation must include the opportunity for the
FLMs to discuss their assessment of visibility impairment in any Class
I area and their recommendations on the development and implementation
of strategies to address such impairment. 40 CFR 51.308(i)(2). For EPA
to evaluate whether FLM consultation meeting the requirements of the
RHR has occurred, the SIP submission should include documentation of
the timing and content of such consultation. The SIP revision submitted
to EPA must also describe how the state addressed any comments provided
by the FLMs. 40 CFR 51.308(i)(3). Finally, a SIP revision must provide
procedures for continuing consultation between the state and FLMs
regarding the state's visibility protection program, including
development and review of SIP revisions, five-year progress reports,
and the implementation of other programs having the potential to
contribute to impairment of visibility in Class I areas. 40 CFR
51.308(i)(4).
IV. EPA's Evaluation of Minnesota's Regional Haze Submission for the
Second Implementation Period
A. Background on Minnesota's First Implementation Period SIP Submission
Minnesota submitted its Regional Haze SIP for the first
implementation period to EPA on December 30, 2009, and supplemented it
on January 5, 2012, and May 8, 2012. EPA approved Minnesota's first
implementation period Regional Haze SIP submission as satisfying the
applicable requirements in 40 CFR 51.308, except for BART emission
limits for the taconite facilities, on June 12, 2012 (77 FR 34801),
effective July 12, 2012. These requirements include identifying
affected Class I areas, calculating the baseline and natural
visibility, establishing RPGs, mandating BART emission reductions for
the five electric generating units (EGUs) that were subject to BART (in
this case through participation in the Cross-State Air Pollution Rule
(CSAPR)), adopting a long-term strategy for making reasonable progress
toward visibility goals, providing a monitoring strategy, and
consulting with other states and the FLMs before adopting its regional
haze plan. EPA acted on RAVI BART for Northern States Power Company's
Sherburne County Generating Station (Sherco) in a separate action (81
FR 11668, March 7, 2016), but approved the Minnesota provided emission
limitations for Sherco units 1 and 2 solely as a SIP strengthening
measure. The requirements for regional haze SIPs for the first
implementation period are contained in 40 CFR 51.308(d) and (e).
EPA promulgated a FIP addressing the BART requirement for taconite
plants in Michigan and Minnesota. This FIP was published in the Federal
Register on February 6, 2013 (78 FR 8705). EPA revised the taconite
plant FIP on April 12, 2016 (81 FR 21671) and on April 1, 2021 (86 FR
12095). Most recently, EPA published two notices of proposed settlement
agreements on April 23, 2024, setting forth final NOX BART
emission limits for Tilden Mining Company (in Michigan), Hibbing
Taconite Company, United Taconite, Minorca Mine, and Keetac, and final
SO2 BART emission limits for Tilden, Minorca, and Northshore
Mining Company. Final adoption of these limits would complete the
limit-setting process required by the taconite plant FIP. 89 FR 30357
and 30360, April 23, 2024. EPA also issued a FIP addressing RAVI for
Sherco, a Minnesota source, on March 7, 2016 (81 FR 11668).
Pursuant to 40 CFR 51.308(g), Minnesota was also responsible for
submitting a five-year progress report as a SIP revision for the first
implementation period, which it did on December 30, 2014. EPA approved
the progress report and incorporated it into the Minnesota SIP on June
28, 2018 (83 FR 30350), effective July 30, 2018.
B. Minnesota's Second Implementation Period SIP Submission and EPA's
Evaluation
In accordance with CAA section 169A and the RHR at 40 CFR
51.308(f), on December 20, 2022, Minnesota submitted a revision to the
Minnesota SIP to address its regional haze obligations for the second
implementation period that runs from 2018 to 2028. Minnesota made its
second period Regional Haze SIP submission available for public comment
on August 22, 2022. The public comment period lasted until October 7,
2022. Minnesota held a public hearing on September 22, 2022. Minnesota
received and responded to public comments. It included the comments and
its responses in appendix H of its regional haze SIP submission.
The following sections describe Minnesota's SIP submission,
including analyses conducted by LADCO and Minnesota's determinations
based on those analyses, Minnesota's assessment of progress made since
the first implementation period in reducing emissions of visibility
impairing pollutants, and the visibility improvement progress at its
Class I areas and nearby Class I areas. This proposed rulemaking also
contains EPA's evaluation of Minnesota's submission against the
requirements of the CAA and RHR for the second implementation period of
the regional haze program.
C. Identification of Class I Areas
Section 169A(b)(2) of the CAA requires each state in which any
Class I area is located or ``the emissions from which may reasonably be
anticipated to cause or contribute to any impairment of visibility'' in
a Class I area to have a plan for making reasonable progress toward the
national visibility goal. The RHR implements this statutory requirement
at 40 CFR 51.308(f), which provides that each state's plan ``must
address regional haze in each mandatory Class I Federal area located
within the State and in each mandatory Class I Federal area located
outside the State that may be affected by emissions from within the
State,'' and paragraph (f)(2), which requires each state's plan to
include a long-term strategy that addresses regional haze in such Class
I areas.
EPA explained in the 1999 RHR preamble that the CAA section
169A(b)(2) requirement that states submit SIPs to address visibility
impairment establishes ``an `extremely low triggering threshold' in
determining which States should submit SIPs for regional haze.'' 64 FR
35714 at 35721, July 1, 1999. In concluding that each of the contiguous
48 states and the District of Columbia meet this threshold,\31\ EPA
relied on ``a large body of evidence demonstrat[ing] that long-range
transport of fine PM contributes to regional haze,'' id., including
modeling studies that ``preliminarily demonstrated that each State not
having a Class I area had emissions contributing to impairment in at
least one downwind Class I area.'' 64 FR 35714 at 35722, July 1, 1999.
In addition to the technical evidence supporting a conclusion that each
state contributes to
[[Page 56837]]
existing visibility impairment, EPA also explained that the second half
of the national visibility goal--preventing future visibility
impairment--requires having a framework in place to address future
growth in visibility-impairing emissions and makes it inappropriate to
``establish criteria for excluding States or geographic areas from
consideration as potential contributors to regional haze visibility
impairment.'' 64 FR 35714 at 35721, July 1, 1999. Thus, EPA concluded
that the agency's ``statutory authority and the scientific evidence are
sufficient to require all States to develop regional haze SIPs to
ensure the prevention of any future impairment of visibility, and to
conduct further analyses to determine whether additional control
measures are needed to ensure reasonable progress in remedying existing
impairment in downwind Class I areas.'' 64 FR 35714 at 35722, July 1,
1999. EPA's 2017 revisions to the RHR did not disturb this conclusion.
See 82 FR 3078 at 3094 January 10, 2017.
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\31\ EPA determined that ``there is more than sufficient
evidence to support our conclusion that emissions from each of the
48 contiguous states and the District of Columba may reasonably be
anticipated to cause or contribute to visibility impairment in a
Class I area.'' 64 FR 35714 at 35721, July 1, 1999. Hawaii, Alaska,
and the U.S. Virgin Islands must also submit regional haze SIPs
because they contain Class I areas.
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Minnesota is home to two mandatory Class I Federal areas: Boundary
Waters Canoe Area Wilderness (Boundary Waters) and Voyageurs National
Park (Voyageurs). For the second implementation period, Minnesota
performed technical analyses to help assess source and state-level
contributions to visibility impairment at in and out of state Class I
areas. Those results are presented in section 2.2.2 of its plan.
Minnesota also assessed the contributions from other states and regions
to its two Class I areas. See section 2.2.3 of the Minnesota plan.
Based on modeling completed by the state, Minnesota was found to
have the greatest visibility impact on the Class I areas within the
state, Boundary Waters and Voyageurs, contributing an estimated 16.2
and 17.6 percent of sulfate plus nitrate visibility impairment,
respectively. Minnesota emissions also impact out-of-state Class I
areas in Michigan, although the impacts to these out-of-state areas are
smaller at 8.2 percent (Isle Royale) and 4.3 percent (Seney).
Visibility impacts to the next closest six Class I areas in other
states ranged from 0.5 percent at Lostwood Wilderness in North Dakota
to 2.6 percent at Mammoth Cave in Kentucky.
Minnesota also assessed the states and regions impacting
Minnesota's Class I areas. It presented the results of its source
apportionment modeling in section 2.2.3, including Table 13, of its
plan. Minnesota identified itself, Canada, North Dakota, Iowa,
Nebraska, Wisconsin, and Missouri as the largest contributors to
visibility impairment in one or both Class I areas in Minnesota.
D. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
The regulation at 40 CFR 51.308(f)(1) requires states to determine
the following for ``each mandatory Class I Federal area located within
the State'': baseline visibility conditions for the most impaired and
clearest days, natural visibility conditions for the most impaired and
clearest days, progress to date for the most impaired and clearest
days, the differences between current visibility conditions and natural
visibility conditions, and the URP. This section also provides the
option for states to propose adjustments to the URP line for a Class I
area to account for visibility impacts from anthropogenic sources
outside the United States and/or the impacts from wildland prescribed
fires that were conducted for certain, specified objectives. 40 CFR
51.308(f)(1)(vi)(B).
Voyageurs has a complete set of ambient IMPROVE data for 2000 to
2004 baseline visibility conditions. Boundary Waters also has a
complete, but substitute, ambient dataset for this period because an
equipment malfunction in 2002, 2003, and 2004 caused the loss of some
PM2.5 particle mass data, elemental organic carbon mass
data, and coarse particulate (PM10) mass data. The data loss
invalidated three out of every seven samples for these components. To
use the valid data, Minnesota substituted missing elements with data
from Voyageurs. This data substitution is detailed in Minnesota's plan,
appendix A. Minnesota included this data substitution in its first
period Regional Haze plan, which EPA approved, effective July 12, 2012.
77 FR 34801, June 12, 2012.
As noted in section 2.1 of Minnesota's plan, for Boundary Waters,
baseline visibility conditions are 6.5 dv on the 20 percent clearest
days and 18.5 dv on the 20 percent most impaired days. For Voyageurs,
the baseline visibility conditions are 7.2 dv on the 20 percent
clearest days and 17.9 dv on the 20 percent most impaired days.
As noted in section 2.1 of Minnesota's plan, Minnesota calculated
natural conditions for Boundary Waters at 6.5 dv on the 20 percent
clearest days and 9.1 dv on the 20 percent most impaired days. For
Voyageurs, Minnesota calculated the natural conditions at 7.2 dv \32\
on the 20 percent clearest days and 9.3 dv on the 20 percent most
impaired days.
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\32\ EPA estimated the natural visibility conditions on the 20
percent clearest days to be 3.48 dv at Boundary Waters and 4.27 dv
at Voyageurs. See Technical Addendum including updated visibility
data through 2018 for the memo titled ``Recommendation for the Use
of Patched and Substituted Data and Clarification of Data
Completeness for Tracking Visibility Progress for the Second
Implementation Period of the Regional Haze Program'' issued June
2020.
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Current conditions, based on 2015-2019 monitoring data, for the
days of most impaired visibility, are better than the 2018 interim
progress goals for the Boundary Waters and Voyageurs, as depicted in
Figure 4 in section 2.1 of Minnesota's plan. Current conditions for the
days of clearest visibility improved and did not degrade from the
baseline. Minnesota provides the current visibility conditions for each
year and a running five-year average for both Class I areas on Table 5
in section 2.1.3 of its plan. The 2015 to 2019 averages are: Boundary
Waters at 4.2 dv on the clearest days and 13.4 dv on the most impaired
days and Voyageurs at 5.1 dv the clearest days and 13.5 dv on the most
impaired days.
Minnesota shows the progress to date for both its Class I areas in
section 2.1.4, Table 6 of its plan. Table 6 has data for the five-year
averages from 2004 to 2019. For Boundary Waters, the five-year average
for the most impaired days decreased from 18.5 in 2004 to 13.4 in 2019
while the five-year average for the clearest days trended from 6.5 dv
in 2004 to 4.2 in 2019. For Voyageurs, the five-year average for the
most impaired days decreased from 17.9 in 2004 to 13.5 in 2019 while
the five-year average for the clearest days trended from 7.2 dv in 2004
to 5.1 in 2019. Based on the ambient data trends, steady progress
towards natural conditions is being made in both Boundary Waters and
Voyageurs.
Minnesota calculated the difference between current visibility and
natural visibility conditions in section 2.1.5 of its plan. For
Boundary Waters, on the most impaired days, the current visibility is
13.4 dv, which is 4.3 dv above the 2064 end point of 9.1 dv, while the
current 4.2 dv visibility on the clearest days is below the end point
target of 6.5 dv. The difference is similar at Voyageurs, with the
current visibility on the most impaired days of 13.5 dv being 4.2 dv
above the 9.3 dv end point in 2064. The current visibility at Voyageurs
on the clearest days, 5.1 dv, is also below the 2064 end point target
of 7.2 dv.
Minnesota, in section 2.1.6 of its plan, calculated the URP for the
Class I areas
[[Page 56838]]
for each implementation period. The URP for 2018 is 16.3 dv at Boundary
Waters and 15.9 dv at Voyageurs. The 2018 five-year average for the
most impaired days is 13.8 dv at Boundary Waters and 14.0 dv at
Voyageurs. The 2028 URP is 14.7 dv at Boundary Waters and 14.5 dv at
Voyageurs. Thus, 2018 visibility is below the 2018 URP as well as the
2028 URP. The current visibility continues the decline in visibility
impairment seen in 2018. The 2019 five-year average, the most current
at submission, improved to 13.4 dv at Boundary Waters and to 13.5 dv at
Voyageurs.
EPA proposes to find that Minnesota has submitted a regional haze
plan that meets the requirements of 40 CFR 51.308(f)(1) related to the
calculations of baseline, current, and natural visibility conditions;
progress to date; and the URP for the second implementation period.
E. Long-Term Strategy for Regional Haze
1. Emission Measures Necessary To Make Reasonable Progress
Each state having a Class I area within its borders or emissions
that may affect visibility in a Class I area must develop a long-term
strategy for making reasonable progress towards the national visibility
goal. CAA 169A(b)(2)(B). As explained in the Background section of this
action, reasonable progress is achieved when all states contributing to
visibility impairment in a Class I area are implementing the measures
determined--through application of the four statutory factors to
sources of visibility impairing pollutants--to be necessary to make
reasonable progress. 40 CFR 51.308(f)(2)(i). Each state's long-term
strategy must include the enforceable emission limitations, compliance
schedules, and other measures that are necessary to make reasonable
progress. 40 CFR 51.308(f)(2). All new (i.e., additional) measures that
are the outcome of four-factor analyses are necessary to make
reasonable progress and must be in the long-term strategy. If the
outcome of a four-factor analysis and other measures necessary to make
reasonable progress is that no new measures are reasonable for a
source, that source's existing measures are necessary to make
reasonable progress, unless the state can demonstrate that the source
will continue to implement those measures and will not increase its
emission rate. Existing measures that are necessary to make reasonable
progress must also be in the long-term strategy. In developing its
long-term strategies, a state must also consider the five additional
factors in 40 CFR 51.308(f)(2)(iv). As part of its reasonable progress
determinations, the state must describe the criteria used to determine
which sources or group of sources were evaluated (i.e., subjected to
four-factor analysis) for the second implementation period and how the
four factors were taken into consideration in selecting the emission
reduction measures for inclusion in the long-term strategy. 40 CFR
51.308(f)(2)(iii).
The following paragraphs detail how Minnesota's submission
addresses the requirements of 40 CFR 51.308(f)(2)(i). Minnesota
evaluated and determined the emission reduction measures needed to make
reasonable progress. In its submission, Minnesota documents the
methodology it used in its selection of sources for analysis and
control measures necessary to make reasonable progress, which are
discussed later in this section.
States may rely on technical information developed by the RPOs of
which they are members to select sources for four-factor analysis and
to conduct that analysis, as well as to satisfy the documentation
requirements under 40 CFR 51.308(f). States may also satisfy the
requirement of 40 CFR 51.308(f)(2)(ii) to engage in interstate
consultation with other states that have emissions that are reasonably
anticipated to contribute to visibility impairment in a given Class I
area under the auspices of intra- and inter-RPO engagement.
Minnesota is a member of an RPO, LADCO, and participated in the
RPO's regional approach to developing a strategy for making reasonable
progress towards the national visibility goal in the northern Midwest
Class I areas.
Minnesota performed its own technical analysis using EPA and LADCO
provided elements. Minnesota's modeling used EPA's modeling platform
with some portions replaced by those from LADCO.
The technical analyses included in Minnesota's submission are as
follows:
Establishment of RPGs for Boundary Waters and Voyageurs
(appendix A)
Contributions to the 2028 RPGs for Boundary Waters and
Voyageurs (appendix A)
Minnesota's impact on Class I areas (appendix A)
Assessment of states and regions impacting Minnesota's
Class I areas (appendix A)
Modeling analyses supporting the conclusion that the Long-
Term Strategy provides reasonable progress (appendix A)
LADCO's Technical Support Documentation (appendix C)
LADCO's Q/d Materials (appendix C)
LADCO's photochemical modeling and Emissions Modeling
results (appendix C)
Minnesota found that the emission reduction measures necessary to
make reasonable progress include:
Permanent and federally enforceable current and future
retirements at ten EGUs (Minnesota plan Table 32), Enforceable by
permit or administrative order;
Existing effective controls for nine other selected
sources, two paper mills, one EGU, and six taconite facilities, which
are required through permits and the 2013 regional haze taconite plant
FIP (Minnesota plan Table 33); \33\
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\33\ 78 FR 8706, February 6, 2013.
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Additional NOX emission reductions from Hibbing
Public Utilities Commission from its ``Hibbing Public Utilities
Restorative Plan.'' These three EGUs will use renewable resources such
as wood alongside natural gas as the primary fuels for its boilers.
Minnesota established enforceable requirements, via an administrative
order, for the proposed NOX emission limits. These
NOX emission reductions were accounted for in Minnesota's
modeling analysis 2028 projection. See section 2.5.1 in the Minnesota
plan;
Expected emission reductions from the implementation of
the Regional Haze taconite plant FIP (Minnesota plan section 2.6.2);
\34\
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\34\ See 89 FR 30357 and 30360, April 23, 2024 for details on
the April 2024 proposed settlements prefacing proposed rules that
will include emission limitations for taconite facilities in
Minnesota and Michigan.
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Updated Northeast Minnesota Plan adding voluntary emission
reduction targets of 30 percent below 2018 levels by 2025 and 40
percent below 2018 levels by 2028, targeting taconite facilities, EGUs,
and paper mills (Minnesota plan section 2.5.7).
2. EPA's Evaluation of Minnesota's Compliance With 40 CFR
51.308(f)(2)(i)
The regulation at 40 CFR 51.308(f)(2)(i) requires states to
evaluate and determine the emission reduction measures that are
necessary to make reasonable progress by applying the four statutory
factors to sources in a control analysis. The emission reduction
measures that are necessary to make reasonable progress must be
included in the long-term strategy. 40 CFR 51.308(f)(2).
EPA proposes to find that Minnesota appropriately considered the
four statutory factors: cost of compliance, time necessary for
compliance, the
[[Page 56839]]
energy and non-air environmental impacts, and the remaining useful life
of the source in its source evaluations.
Minnesota detailed its source selection process in section 2.3.6.
of its plan. Minnesota originally selected 13 facilities that accounted
for about the top 80 percent of emissions impacting visibility at
Boundary Waters and Voyageurs. Discussions with the FLMs resulted in
Minnesota considering four additional facilities--American Crystal
Sugar in Crookston and East Grand Forks, Hibbing Public Utilities, and
Southern Minnesota Beet Sugar Cooperative. Thus, Minnesota selected the
following 17 facilities, which account for nearly the top 85 percent of
visibility impacts at Boundary Waters and Voyageurs and result in an
effective Q/d of about 4.6: \35\
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\35\ Tables 43 and 44 of the Minnesota plan include more
information on the Q/d, percentile, cumulative percentile, FLM
interest, and whether Minnesota required a four-factor analysis.
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American Crystal Sugar--Crookston: Boilers 1, 2, and 3;
American Crystal Sugar--East Grand Forks: Boilers 1 and 2;
Boise White Paper: Recovery Furnace, Boilers 1 and 2;
Cleveland Cliffs Minorca Mine: Indurating Furnace;
Hibbing Public Utilities: Boilers 1A, 2A, 3A, and Wood
Fired Boiler;
Hibbing Taconite Company: Indurating Furnace Lines 1, 2,
and 3;
Minnesota Power--Boswell: Units 1, 2, 3, and 4;
Minnesota Power--Taconite Harbor: Boilers 1 and 2;
Northshore Mining--Silver Bay: Power Boilers 1 and 2 and
Furnaces 11 and 12;
Sappi Cloquet LLC: Power Boiler 9 and Recovery Boiler 10;
Southern Minnesota Beet Sugar Cooperative: Boiler 1;
United Taconite--Fairlane Plant: Pellet Induration Lines 1
and 2;
US Steel--Keetac: Grate Kiln;
US Steel--Minntac: Rotary Kiln Lines 3, 4, 5, 6, and 7;
Virginia Department of Public Utilities: Boilers 7, 9, and
11;
Xcel Energy--Allen S. King: Boiler 1; and
Xcel Energy--Sherburne: Units 1, 2, and 3.
Minnesota then contacted these selected sources and requested they
prepare site-specific four-factor analyses. To guide facilities'
assessment of selected sources, Minnesota suggested the facilities use
the 2016 actual emissions data unless 2028 operations are expected to
be significantly different than 2016 operations. In its request,
Minnesota explained that emissions should be based on representative
historical operations and follow the recommendations regarding
emissions data in EPA's August 2019 Guidance. Facilities generally
provided emissions data that were reported to the most recent Minnesota
annual emissions inventory (typically 2018 or 2019), which was at least
as recent as the emissions data submitted to EPA's 2017 National
Emissions Inventory (NEI), at the time the requested four-factor
analyses were provided to Minnesota.
In appendix E of its plan, Minnesota reviewed the emissions data
provided in each four-factor analysis and compared that information to
the emissions data reported in Minnesota's annual emissions inventory
for the years 2016 through 2020. Minnesota compared the emissions data
to these years of reported emissions data to verify that the emissions
used in the four-factor analyses were similar to historically reported
emissions. Where emissions data used by facilities were not
representative of typical emissions, Minnesota revised the emissions
data used as part of evaluating potential control measures following
the methods recommended by the EPA's Air Pollution Control Cost Manual
\36\ (as of June 23, 2022). As an example, the American Crystal Sugar--
Crookston facility reports annual NOX and SO2
emissions based on a pound per hour value determined during stack
testing while the four-factor analysis calculated emissions in pounds
per million British thermal units. Minnesota and the facility both
reviewed the stack testing results leading the state to conclude the
calculated pound per hour values are skewed high, so it used the pounds
per million British thermal units value for the four-factor analysis.
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\36\ Available at https://www.epa.gov/economic-and-cost-analysis-air-pollution-regulations/cost-reports-and-guidance-air-pollution.
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Minnesota also evaluated the cost of compliance as detailed in
sections 2.4.3 and 2.5.1 of the Minnesota plan. In order to evaluate
the reasonableness of potential control measures, Minnesota chose to
evaluate those costs compared to available cost information from many
sources including first period BART determinations, other states'
regional haze plans,\37\ EPA's RACT/BACT/LAER Clearinghouse,\38\ and
other sources. Minnesota identified the units to be analyzed along with
the request for facilities to prepare a four-factor analysis following
the 2019 Guidance. The 2019 Guidance provides the methods to determine
emission control measures to consider and details how the four factors
of section 169A(g)(1) of the CAA (cost of compliance, time necessary
for compliance, energy and non-air environmental impacts, and remaining
useful life of the source) can be considered. Minnesota also let
facilities refine the cost estimate with a source-specific vendor
quote. In order to make the cost analyses uniform and more accurate,
Minnesota further refined the analyses by adjusting the cost
information using consistent factors in the calculations including
interest rates and retrofit factors. Those analyses are detailed in
appendix E, and in Tables 52 and 54 of section 2.4.3 and in section
2.5.1 of its plan.
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\37\ The state plans from Arkansas, Arizona, Colorado, North
Dakota, New Mexico, Oregon, Texas, Washington, and Wisconsin were
available at the time, approximately October 2021, of Minnesota's
review.
\38\ RACT is Reasonably Available Control Technology, BACT is
Best Available Control Technology, and LAER is Lowest Achievable
Emission Rate; the Clearinghouse can be accessed at: https://cfpub.epa.gov/RBLC/index.cfm?action=Home.Home&lang=en.
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Minnesota did not set a bright-line cost threshold but considered
controls that cost less than approximately $7,600 per ton as cost
effective for the second implementation period. Minnesota used $10,000
per ton for an initial screening threshold. Minnesota then evaluated
potential NOX and SO2 control measures and
refined the costs of those controls, factoring in interest rates,
retrofit factors, and source-specific vendor quotes. After adjustments
and further analysis, the most expensive control measure considered to
be potentially cost-effective by the state was less than $7,600 per
ton.\39\ Detail on the controls considered and costs calculated for
each facility are provided in section 2.5.1 and in Tables 55 to 60 in
Minnesota's plan.
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\39\ Original calculation for selective non-catalytic reduction
on Sappi Cloquet Boiler 9 was $7,632 per ton NOX, which
was later revised following a vendor quote and state revision.
---------------------------------------------------------------------------
In section 2.5.2 of the Minnesota plan, Minnesota reviewed the time
needed for compliance with potential control measures provided by
facilities to consider what compliance timeframe would be reasonable
for each specific source. The state noted that in general, facilities
provided an estimate of the time needed to install the evaluated
control options including the time needed for design, engineering,
procurement, and installation. Minnesota reviewed the facility's time
needed for compliance with potential control measures provided by
facilities to consider what compliance timeframe would be reasonable
for each specific source. Minnesota considered the time
[[Page 56840]]
necessary for compliance as part of evaluating potential control
measures later in the four-factor analysis process in determining if a
control measure was needed to make reasonable progress. EPA finds this
approach reasonable given that it is consistent with the 2019 Guidance
at 41.
In section 2.5.3 of the Minnesota plan, Minnesota stated that it
considered the energy and non-air environmental impacts as part of the
cost of compliance of potential control measures in determining whether
a control measure was necessary to make reasonable progress. Minnesota
considered this factor by evaluating the cost impact from the potential
control measures such as whether adopting the control would: (1)
increase or decrease energy use; (2) impact solid, liquid, and
hazardous waste disposal; (3) create reagents that contaminate fly ash
making it unsuitable for sale; and (4) require accessory systems such
as additional fans. Minnesota considered the remaining useful life of
each source as described in section 2.4.6 and 2.5.4 of its plan.
Minnesota determined the remaining useful life by considering the
remaining duration of operation and the expected lifespan of potential
controls. Minnesota noted that facilities generally followed the
Control Cost Manual control device recommendations in their
calculations. In several cases, Minnesota considered enforceable
retirement dates as the end of a source's useful life. Minnesota
provided detail on the retirements of 10 units at Minnesota Power--
Boswell, Minnesota Power--Taconite Harbor, Virginia Department of
Public Utilities, and Xcel Energy--Allen S. King and Sherco facilities
on Table 32 in section 2.3.3 of its plan.
In order to ensure that the long-term strategy contains the
enforceable emissions limitations necessary for reasonable progress,
Minnesota assessed emissions limitations at each of the 17 facilities
it considered. For sources for which Minnesota determined that no
additional control measures were needed, Minnesota relied on existing
federally enforceable emissions limitations in the taconite plant FIP,
and on retirement schedules at certain facilities memorialized in
administrative orders as described in section 2.5.4 and appendix D of
its plan and in the following paragraph. The Minnesota long-term
strategy relies on these federally enforceable emissions limitations
and retirement schedules as the measures necessary to make reasonable
progress. As such, Minnesota concluded that additional control measures
were not necessary to make reasonable progress.
Minnesota entered into an administrative order regarding the
Virginia Department of Public Utilities Boiler 7, including a permanent
retirement scheduled for Boiler 7 by January 1, 2025. Minnesota also
entered into administrative orders for the retirements of Minnesota
Power--Taconite Harbor Boilers 1 and 2 by March 31, 2023, Xcel Energy--
Allen S. King Boiler 1 by December 31, 2028, and Xcel Energy--Sherco
Unit 3 by December 31, 2030. Minnesota also entered into an
administrative order requiring the Northshore Mining--Silver Bay Power
Company's Power Boiler 1 and Power Boiler 2 units to remain idled
through 2031. Finally, at Hibbing Public Utilities commission,
Minnesota entered into an administrative order requiring NOX
emission limits at Boilers 1A, 2A, and 3A effective January 1, 2023,
that resulted in equivalent reductions that would have been achieved by
installing controls on each boiler at the facility. EPA proposes to
incorporate by reference these administrative orders.
Several units at selected facilities had permanently retired. In
section 2.3.3 of its plan, Minnesota cites the federally enforceable
permits for Minnesota Power--Boswell Energy Center Unit 1 and Unit 2,
Virginia Department of Public Utilities Boiler 9, and Xcel Energy--
Sherco Unit 1 and Unit 2.
Minnesota also considered the following sources to be effectively
controlled through federally enforceable emissions limits included in
operating permits or in the first regional haze implementation period.
Regarding Boise White Paper Boiler 2 and Recovery Furnace, Minnesota
determined that the facility's emissions permit included a
NOX limit comparable to recent BACT determinations for
similar units. Regarding Minnesota Power's Boswell Energy Center Unit
3, BART NOX limits were established in the first regional
haze implementation period and the facility's emissions permit included
BART SO2 limits established pursuant to the 2012 Mercury Air
Toxics Standards (MATS) rule for power plants. See 77 FR 9304, February
16, 2012. Regarding Minnesota Power's Boswell Energy Center Unit 4,
Minnesota determined that the facility's emissions permit included a
NOX limit comparable to recent BACT determinations for
similar units and a SO2 limit established pursuant to the
2012 MATS rule. Regarding Sappi Cloquet Recovery Boiler 10, the
facility's emissions permit included a NOX BACT emissions
limit.
Minnesota also considered the following sources to be effectively
controlled through federally enforceable emissions limits in the
taconite plant FIP. Regarding US Steel Minntac Rotary Kiln Lines 3, 4,
5, 6, and 7, EPA published a final rule on March 2, 2021, imposing a
facility-wide BART NOX emission limit for Minntac lines 3-7.
86 FR 12095, March 2, 2021. Regarding Minorca Mine Indurating Furnace,
United Taconite Grate Kiln Lines 1 and 2, Hibbing Lines 1, 2, and 3,
Northshore Mining--Silver Bay Furnace 11 and 12, and US Steel Keetac
Grate Kiln, EPA published two notices of proposed settlement agreements
on April 23, 2024. 89 FR 30357 and 30360, April 23, 2024. These actions
set forth final NOX BART emission limits for Hibbing, United
Taconite, Minorca, and Keetac, and final SO2 BART emission
limits for Minorca and Northshore. Final adoption of these limits would
complete the limit-setting process required by the taconite plant FIP.
In section 2.4.1 of its plan, Minnesota provided the emission
control measures considered in Table 45 along with noting the units
that have or will retire and were found to be effectively controlled.
The NOX controls generally considered were low
NOX burners (LNB) and/or over-fire air (OFA) systems,
selective non-catalytic reduction (SNCR), and selective catalytic
reduction (SCR). The SO2 controls generally considered were
wet flue gas desulfurization (FGD), dry FGD, and dry sorbent injection
(DSI).
Minnesota evaluated potential NOX and SO2
controls for both American Crystal Sugar facilities. At American
Crystal Sugar--Crookston, Minnesota considered controls for Boilers 1,
2, and 3. The NOX controls were all over $12,000 per ton
(Minnesota refined) with the maximum 109 tons per year (TPY) for SCR on
Boiler 3. The SO2 controls were over $12,500 per ton for DSI
and over $16,000 per ton for dry FGD for all three units. At American
Crystal Sugar--East Grand Forks, Minnesota evaluated Boilers 1 and 2.
Minnesota found that SNCR would cost about $11,366 per ton
NOX to reduce 35 TPY on each unit, while DSI was calculated
at $11,241 per ton SO2 to reduce 317 TPY on each unit.
Minnesota concluded that neither NOX nor SO2
controls appear cost-effective for either American Crystal Sugar
facility.
Minnesota also evaluated potential SO2 controls for
Hibbing Public Utilities Commission Boilers 1A, 2A, and 3A and
evaluated NOX controls on the Wood Fired Boiler unit.
Minnesota determined
[[Page 56841]]
that none of these controls were cost effective.
For Sappi Cloquet LLC, Minnesota considered potential
NOX and SO2 controls for Power Boiler #9.
Minnesota calculated controlling 11 TPY of SO2 emissions
with DSI would cost $515,275 per ton. Minnesota calculated SNCR on
Power Boiler #9 would cost $7,632 per ton of NOX controlled.
Sappi Cloquet supplied a vendor quote, on which Minnesota revised the
expected control cost down to $8,562 per ton. Minnesota concluded that
neither NOX nor SO2 controls for Power Boiler #9
appear cost-effective for Sappi Cloquet in the second regional haze
implementation period.
Minnesota also evaluated potential NOX and
SO2 controls for Boiler 1 at Southern Minnesota Beet Sugar
Cooperative. For SO2, Minnesota calculated a Spray Dry
Absorber control to cost $10,097 per ton, which Minnesota found not to
be cost effective. Minnesota also evaluated several potential
NOX controls for Boiler 1. Minnesota revised the facility's
calculations for SNCR control to $2,942 per ton that would reduce an
expected 447 tons of NOX. Although Minnesota found
NOX controls to be potentially cost effective, Southern
Minnesota Beet Sugar Cooperative refuted Minnesota's determination to
install NOX controls ahead of the SIP submission deadline
and provided a technical analysis supporting its position. As a result,
Minnesota intends to reevaluate this facility for the 2025 progress
report and the third regional haze implementation period.
Minnesota also evaluated potential NOX controls for
Boiler 1 at Boise White Paper. Minnesota refined the facility's four-
factor analysis for potential control options and found that SCR is
expected to reduce 66 TPY NOX at $13,783 per ton with the
other option (LNB with OFA and flue gas recirculation) costing nearly
twice that ($26,649 per ton). Minnesota concluded that NOX
controls at Boise White Paper Boiler 1 are not cost effective.
Minnesota evaluated potential NOX and SO2
controls for Boiler 7 and potential NOX controls for Boiler
11 at Virginia Department of Public Utilities. The facility suggested
that Boiler 7 may retire during the second regional haze implementation
period, but because the retirement was not confirmed, Minnesota
analyzed that unit. For Boiler 7, Minnesota calculated a cost-
effectiveness of $9,534 per ton using SNCR to reduce 28 TPY
NOX. Minnesota calculated $12,724 per ton for SCR on Boiler
11 reducing 81 TPY NOX. Minnesota calculated $25,420 per ton
SO2 for a dry scrubber and $42,939 per ton SO2
for a wet scrubber on Boiler 7. On April 6, 2022, the facility informed
Minnesota that it planned to retire Boiler 7 by January 1, 2025.
Minnesota included an Administrative Order making the retirement of
Boiler 7 at Virginia Department of Public Utilities permanent and
enforceable that EPA is proposing to incorporate by reference. The
calculated cost-effectiveness for potential NOX control for
Boiler 11 at Virginia Department of Public Utilities exceeds
Minnesota's screening threshold.
EPA proposes to find that Minnesota has satisfied the requirements
of 40 CFR 51.308(f)(2)(i) related to determining the emission reduction
measures that are necessary to make reasonable progress by
appropriately considering the four statutory factors and providing a
long-term strategy that includes the enforceable emission limitations
and compliance schedules that are necessary to make reasonable
progress.
3. Additional Long-Term Strategy Requirements
Consultation
The consultation requirements of 40 CFR 51.308(f)(2)(ii) provide
that states must consult with other states that are reasonably
anticipated to contribute to visibility impairment in a Class I area to
develop coordinated emission management strategies containing the
emission reductions measures that are necessary to make reasonable
progress. Section 51.308(f)(2)(ii)(A) and (B) require states to
consider the emission reduction measures identified by other states as
necessary for reasonable progress and to include agreed-upon measures
in their SIPs, respectively. Under 40 CFR 51.308(f)(2)(ii)(C) speaks to
what happens if states cannot agree on what measures are necessary to
make reasonable progress.
As noted in section 2.9.1 of its plan, Minnesota participated in
the LADCO Regional Haze Technical Workgroup meetings beginning in
January 2018. These meetings are ongoing.
Minnesota also consulted with several states individually.
Minnesota met with Iowa on June 30, 2022. Minnesota met with Michigan
on June 24, 2022. Minnesota consulted with Missouri on June 21, 2022.
Nebraska met with Minnesota three times on June 26, 2020, December 16,
2020, and June 21, 2022. On June 25, 2020, Minnesota and North Carolina
met. North Dakota and Minnesota consulted on March 22, 2021, and June
23, 2022. Minnesota met South Dakota on September 15, 2021. Minnesota
and Wisconsin met on June 30, 2022. More information on these meetings
with individual states and any follow-up is provided in Minnesota's
plan at section 2.9.1.
No states notified Minnesota that they identified emissions from
Minnesota sources as contributing to visibility impairment at their
Class I areas. There are no requests from other states to analyze
emissions controls at Minnesota sources or for Minnesota to undertake
specific emissions reductions necessary to make reasonable progress for
the second regional haze implementation period at out-of-state Class I
areas.
EPA proposes to find that Minnesota has met the 40 CFR
51.308(f)(2)(ii)(A) and (B) consultation requirements with its
participation in the LADCO Regional Haze Technical Workgroup
consultation process plus its individual consultation meetings with
contributing states. There were no disagreements with other states, so
40 CFR 51.308(f)(2)(ii)(C) does not apply.
Technical Basis
The regulation at 40 CFR 51.308(f)(2)(iii) requires states to
document the technical basis of the long-term strategy. This includes
the modeling, monitoring, cost, engineering, and emissions information
that the state relied on in determining the emission-reduction measures
that are necessary to make reasonable progress. As explored in further
detail above, Minnesota specified the control measures necessary to
make reasonable progress in section 2.5 of its plan. In summary,
Minnesota concluded that the following control measures are necessary
for reasonable progress:
The realized and upcoming emission unit retirements; \40\
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\40\ Retirements of Minnesota Power's Boswell Energy Center
Units 1 and 2, Minnesota Power's Taconite Harbor Energy Center
Boilers 1 and 2, the Virginia Department of Public Utilities Boilers
7 and 9, Xcel Energy's Allen S. King Boiler 1, and Sherco's Units 1,
2, and 3, and the idling of Northshore Mining's Silver Bay Power
Boilers 1 and 2 through 2031.
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The existing effective controls for non-taconite emission
units; \41\
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\41\ Existing effective measures at Boise White Paper Boiler 2
and Recovery Furnace, Minnesota Power's Boswell Energy Center Units
3 and 4, and Sappi Cloquet Recovery Boiler 10.
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Additional NOX emission reductions expected for
Hibbing Public Utilities Commission;
The expected emission reductions from implementation of
the taconite plant FIP;
The new, voluntary emission reduction targets in the
Northeast Minnesota Plan for 2025 and 2028.
To select these control measures, Minnesota relied on monitoring,
as
[[Page 56842]]
required in 40 CFR 51.308(f)(2)(iii). Minnesota documented its long-
term modeling in detail in section 2.6 of its plan and its technical
support document. Minnesota elected to follow EPA modeling guidance to
estimate future visibility in its Class I areas to establish the RPGs
for Boundary Waters and Voyageurs. Minnesota used an EPA modeling
platform with some portions replaced by LADCO. The modeling platform
consists of meteorology, emissions, and other inputs needed to run an
air quality model.
40 CFR 51.308(f)(2)(iii) also requires the documentation of cost
analyses as part of the technical basis for the state's long-term
strategy. As explained above, Minnesota satisfactorily complied with
the requirement of 40 CFR 51.308(f)(2)(i) to consider cost as one of
the four statutory factors to be considered when evaluating control
options. EPA is proposing to find that Minnesota's documentation of its
cost considerations satisfy its obligation under 40 CFR
51.308(f)(2)(iii).
As noted above, Minnesota considered engineering, one of the
technical basis elements of 40 CFR 51.308(f)(2)(iii), in its selection
of potential emission control systems and in evaluating the control
analyses (such as evaluating reasonableness of the control efficiency
and retrofit factor used).
40 CFR 51.308(f)(2)(iii) also requires that the emissions
information considered to determine the measures that are necessary to
make reasonable progress include information on emissions for the most
recent year for which the state has submitted triennial emissions data
to EPA (or a more recent year), with a 12-month exemption period for
newly submitted data. In section 2.3.2 of its plan, Minnesota used 2016
emissions inventory data to calculate Q/d in an effort to select
industrial point sources for an analysis of emissions control measures.
The LADCO Regional Haze Technical Workgroup selected the National
Emissions Inventory Collaborative 2016 inventory for the Q/d analysis
in March 2018 as the best available inventory at that time. LADCO
compiled the Q/d analysis, which accounted for the combined emissions
of SO2, NOX, NH3, and PM2.5
and the distance to the nearest Class I areas.
In section 2.4.2, Minnesota's SIP submission also provided 2028
emission projections based on a modeling platform using the 2016
emissions inventory. Minnesota also considered Clean Air Markets
Program Data emissions for EGUs for NOX and SO2
in assessing emission reductions from regional haze SIP strategies. In
addition, in developing four-factor analyses, facilities provided
emissions data that was reported to the most recent Minnesota annual
emission inventory (typically 2018 or 2019), which was at least as
recent as the emissions data submitted to EPA's 2017 NEI. Minnesota
reviewed the emissions data provided in each four-factor analysis and
compared that information to the emissions data reported to Minnesota's
annual emission inventory for the years 2016 through 2020. Minnesota
compared the emissions data to these years of reported emissions data
to verify that the emissions used in the four-factor analysis were
reasonably grounded in historical reported emissions. Based on
Minnesota's consideration and analysis of the emission data in its SIP
submission and supplemental documentation, EPA proposes to find that
Minnesota has satisfied the emissions information requirement in 40 CFR
51.308(f)(2)(iii).
Finally, Minnesota also adequately documented adjustments to the
factors impacting the RPG, which involved adjustments to reflect
changes at facilities occurring after the modeling platform was
developed.
EPA proposes to find that Minnesota adequately documented its
technical basis for calculating the 2028 RPGs for Boundary Waters and
Voyageurs.
Five Additional Factors
EPA also proposes to find that Minnesota reasonably considered the
five additional factors in 40 CFR 51.308(f)(2)(iv) in developing its
long-term strategy. Minnesota considered these five factors in section
2.3.4 of its plan.
Pursuant to 40 CFR 51.308(f)(2)(iv)(A), Minnesota noted that it
considered ongoing state and Federal emission control programs that
contribute to emission reductions through 2028 in the modeling that was
used to develop the long-term strategy. In addition, the Sherco
facility has an existing emissions limit to address RAVI at Minnesota
Class I areas. EPA promulgated a RAVI FIP for Sherco on March 7, 2016
(81 FR 11668), and the emission limitations are in 40 CFR 52.1236.
Minnesota also provided details on the taconite plant BART FIP that
limits visibility impairing emissions from several taconite facilities.
Minnesota noted numerous Federal standards and other existing measures
that result in emission reductions. In section 3.1 of its plan,
Minnesota also noted additional emission reductions from a variety of
programs that are not reflected in its 2028 modeling inventory. Those
programs include the Ozone and PM Advance programs, Volkswagen
Settlement funded projects, and the Clean Cars Minnesota rule.
Pursuant to 40 CFR 51.308(f)(2)(iv)(B), Minnesota considered
measures to mitigate the impacts of construction activities by
considering EPA standards for nonroad and diesel mobile sources, as
well as Minnesota Rule 7011.0150, which requires all reasonable
measures to be undertaken to prevent particulate matter from becoming
airborne. Minnesota notes the main impacts of construction activities
include the impacts of emissions from nonroad mobile and diesel engines
and fugitive emissions resulting from land clearing and construction.
Pursuant to 40 CFR 51.308(f)(2)(iv)(C), Minnesota considered source
retirement and replacement schedules memorialized in enforceable
administrative orders, as discussed above regarding Minnesota's
compliance with the requirement of 40 CFR 51.308(f)(2)(i) to consider
the remaining useful life of any existing source possibly subject to
control requirements. See section 2.3.3 and Table 32 of Minnesota's
plan. The source retirements that had already occurred are federally
enforceable by permit condition as given by the state.
Pursuant to 40 CFR 51.308(f)(2)(iv)(D), Minnesota considered smoke
management by considering the Minnesota Smoke Management Plan. The
state noted that prescribed fire and managed wildfire have been used in
Minnesota for many years to improve and maintain natural resources. The
Minnesota Smoke Management Plan \42\ was created and implemented for
three reasons: improving visibility in the Class I areas in Minnesota,
enabling the continued use of prescribed fire as a management tool, and
using a smoke management program to prevent violations of the
particulate matter and ozone NAAQS due to emissions from managed
wildland fires. Further, Minnesota highlighted the data from the
IMPROVE monitoring sites at the Boundary Waters and Voyageurs Class I
areas indicating that elemental and organic carbon, pollutants
typically formed from fire, are not large
[[Page 56843]]
contributors to visibility impairment in these areas.
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\42\ Agricultural burning is not covered by Minnesota's Smoke
Management Plan. However, Minnesota stated that agricultural burning
requires an open burning permit. In general, agricultural burning in
Minnesota is limited to grass and stubble burning, particularly of
bluegrass and timothy grass. This light fuel type produces short-
term smoke events without a lot of combustion of biomass and
smoldering. In addition, most agricultural burning occurs in the
northwest area of the state, away from the Class I areas.
---------------------------------------------------------------------------
Pursuant to 40 CFR 51.308(f)(2)(iv)(E), Minnesota considered the
anticipated net effect on visibility due to projected changes in
emissions in its submission, in developing the technical information
used to support development of the regional haze SIP. Minnesota noted
that it used conservative estimates of the visibility improvements due
to Minnesota's long-term strategy for the second regional haze
implementation period. Minnesota met this requirement by projecting
emissions from all sources in Minnesota and other nearby states to the
end of the planning period (2028) and performing a detailed modeling
analysis of the anticipated impact of those emissions changes on
visibility impairment at Class I areas in both Minnesota and nearby
states. However, Minnesota did not directly rely on the 2028 modeling
analysis to select sources and evaluate controls in developing its
long-term strategy. Instead, Minnesota used the Q/d process presented
in section 2.3 of its plan to select sources for an analysis of control
measures. As detailed in section IV. E.2. of this preamble, Minnesota
performed a well-developed analysis resulting in a reasonable selection
of sources and performed a sufficient control analysis on the selected
sources.
EPA proposes to find that Minnesota's reasonable consideration of
each of the five additional factors satisfies the requirements of 40
CFR 51.308(f)(2)(iv).
F. Reasonable Progress Goals
Section 51.308(f)(3) contains the requirements pertaining to RPGs
for each Class I area. Minnesota contains two Class I areas, making it
subject to 40 CFR 51.308(f)(3)(i). Section 51.308(f)(3)(i) requires a
state in which a Class I area is located to establish RPGs--one each
for the most impaired and clearest days--reflecting the visibility
conditions that will be achieved at the end of the implementation
period as a result of the emission limitations, compliance schedules
and other measures required under paragraph (f)(2) to be in states'
long-term strategies, as well as implementation of other CAA
requirements. The long-term strategies as reflected by the RPGs must
provide for an improvement in visibility on the most impaired days
relative to the baseline period and ensure no degradation on the
clearest days relative to the baseline period. Section
51.308(f)(3)(ii)(B) requires that if a state contains sources that are
reasonably anticipated to contribute to visibility impairment in a
Class I area in another state, and the RPG for the most impaired days
in that Class I area is above the URP, the upwind state must provide
the same demonstration.
Minnesota determined the 2028 RPGs for Boundary Waters and
Voyageurs based on the long-term strategy and other enforceable
measures described in its plan.
Minnesota determined the RPGs using its modeling platform,
consisting of EPA's 2016 modeling platform, version 1, with some parts
replaced with those provided by LADCO. This resulted in a 2016 modeling
platform, version 1b, as detailed in the Minnesota plan at section
2.6.1. Minnesota used the National Emissions Inventory Collaborative's
emissions inventory 2016 base year for the second implementation
period. Minnesota details the meteorology inputs for its emissions
model and its air-quality model in its plan. For the base year
inventories, Minnesota used the LADCO prepared ``actual'' and
``typical'' emissions inventories. Minnesota used the actual emissions
inventory for evaluating air-quality model performance. Minnesota used
the typical emissions inventory for establishing RPGs and for the
contribution assessment. Minnesota notes the only difference between
the actual and typical emissions inventories involves the
characterization of emissions from the taconite facilities in
Minnesota. LADCO prepared a 2028 projected ``typical'' emissions
inventory for Minnesota by incorporating state-provided emissions
projections for taconite facilities that apply FIP limits from the
first implementation period. LADCO's 2028 future year inventory used
the National Emissions Inventory Collaborative's 2016 emissions
inventory with updates.
According to the modeling, the 2028 RPGs for the most impaired days
are 13.4 dv for Boundary Waters and 13.6 dv for Voyageurs. The 2028
RPGs for the clearest days are 4.5 dv for Boundary Waters and 5.3 dv
for Voyageurs. See Table 65 of the Minnesota plan. Minnesota's long-
term strategy and the RPGs provide for an improvement in visibility for
the most impaired days since the baseline period and ensure no
degradation in visibility for the clearest days since the baseline
period, in accordance with 40 CFR 51.308(f)(3)(i).
Section 51.308(f)(3)(i) also specifies that RPGs must reflect
``enforceable emissions limitations, compliance schedules, and other
measures required under paragraph (f)(2) of this section'' (emphasis
added). EPA interprets this provision as requiring that only emission
reduction measures that states--including upwind states--have
determined to be necessary for reasonable progress and incorporated
into their long-term strategies be reflected in a Class I area's RPGs.
This ensures that RPGs include only those measures that are reasonably
certain to be implemented. Minnesota detailed these measures in section
2.6.2 of its plan. Minnesota used the known measures at the time when
it developed the 2016 model platform. The measures reflected in the
modeling for the RPGs for Boundary Waters and Voyageurs are summarized
on Table 66 of the Minnesota plan. Emission changes that were not
included in the RPG modeling are also noted on Table 66. In determining
the RPGs, Minnesota also included the unit retirements at Minnesota
Power's Boswell Energy Center Units 1 and 2, Minnesota Power's Taconite
Harbor Energy Center, the Virginia Department of Public Utilities, Xcel
Energy's Allen S. King, and Sherco's Units 1 and 2. Additionally,
Minnesota factored in projected additional use of units to offset the
generation capacity from the retiring units. Minnesota reflected
additional use of Sherco's Unit 3, Minnesota Power's Boswell Energy
Center Units 3 and 4, and Hibbing Public Utilities Units 1A, 2A, and 3A
in the RPGs. Minnesota did not know about emission reductions required
at Cleveland Cliffs Minorca facility and at Hibbing Taconite at the
time modeling was being conducted. As a result, this is not reflected
in the RPGs. Minnesota provides the long-term strategy measures
reflected in the RPGs for Boundary Waters and Voyageurs in Table 66 of
its plan.
The RHR at 40 CFR 51.308(f)(3)(iii) notes that the RPGs are not
directly enforceable but will be considered by the Administrator in
evaluating the adequacy of the measures in the implementation plan in
providing for reasonable progress towards achieving natural visibility
conditions at that area.
Under 40 CFR 51.308(f)(3)(ii)(A), a state with a Class I area that
establishes an RPG for the most impaired days that provides for a
slower rate of improvement in visibility than the URP must calculate
the number of years required to reach natural conditions. Because
Minnesota's RPGs are below the URP, the demonstration requirement under
40 CFR 51.308(f)(3)(ii)(A) is not triggered.
Under 40 CFR 51.308(f)(3)(ii)(B), if a state contains sources that
are reasonably anticipated to contribute to visibility impairment in a
Class I area in another state for which a demonstration by the other
state is required, then the
[[Page 56844]]
state must demonstrate that there are no additional emission reduction
measures that would be reasonable to include in its long-term strategy.
The out-of-state Class I areas with the largest visibility
contributions from Minnesota (primarily the Michigan Class I areas) are
well below the URP. Thus, EPA proposes to conclude that the
demonstration requirement under 40 CFR 51.308(f)(3)(ii)(B) is not
triggered.
In sum, EPA proposes to determine that Minnesota has satisfied the
applicable requirements of 40 CFR 51.308(f)(3) relating to RPGs.
G. Monitoring Strategy and Other Implementation Plan Requirements
Section 51.308(f)(6) specifies that each comprehensive revision of
a state's regional haze SIP must contain or provide for certain
elements, including monitoring strategies, emissions inventories, and
any reporting, recordkeeping and other measures needed to assess and
report on visibility. A main requirement of this subsection is for
states with Class I areas to submit monitoring strategies for
measuring, characterizing, and reporting on visibility impairment.
Compliance with this requirement may be met through participation in
the IMPROVE network.
Minnesota uses its participation in the IMPROVE program \43\ to
meet the 40 CFR 51.308(f)(6) monitoring strategy requirements.
Minnesota determined that no modifications to its strategy are
necessary at this time. See 2.8.4 of the Minnesota plan.
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\43\ The IMPROVE sites also provide PM2.5 speciation
data. Therefore, these sites are a key component of EPA's national
fine particle monitoring in addition to being critical to tracking
progress related to regional haze regulations.
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Section 51.308(f)(6)(i) requires SIPs to provide for the
establishment of any additional monitoring sites or equipment needed to
assess whether reasonable progress goals to address regional haze for
all mandatory Class I Federal areas within the state are being
achieved. The IMPROVE monitoring sites are in the two Class I areas, at
Boundary Waters (monitor BOWA1) and Voyageurs (monitor VOYA2).
Additionally, an IMPROVE Protocol site is located in southeastern
Minnesota near Great River Bluffs State Park (monitor GRRI1). See 2.8.4
and Figure 16 of the Minnesota plan.
Section 51.308(f)(6)(ii) requires SIPs to provide for procedures by
which monitoring data and other information are used in determining the
contribution of emissions from within the state to regional haze
visibility impairment at mandatory Class I Federal areas both within
and outside the state. Minnesota used its own modeling analysis to
conduct the contribution assessment as detailed in section 2.2.1 and
appendix A of its plan.
In 40 CFR 51.308(f)(6)(iii) only applies to states without a Class
I area, requiring procedures for using monitoring data in determining
the contribution of emissions to visibility impairment at Class I areas
in other states. Minnesota has Class I areas, therefore this
requirement is inapplicable.
Section 51.308(f)(6)(iv) requires the SIP to provide for the
reporting of all visibility monitoring data to the Administrator at
least annually for each Class I area in the state. The monitoring
strategy for Minnesota relies upon the continued availability of the
IMPROVE network. Minnesota supports the continued operation of the
IMPROVE network through both state and Federal funding mechanisms.
Section 51.308(f)(6)(v) requires SIPs to provide for a statewide
inventory of emissions of pollutants that are reasonably anticipated to
cause or contribute to visibility impairment, including emissions for
the most recent year for which data are available and estimates of
future projected emissions. It also requires a commitment to update the
inventory periodically. The Minnesota emissions inventory includes VOC,
NOX, PM2.5, PM10, NH3, and
SO2. Minnesota rules require point sources to submit reports
of their emissions to the state each year and an annual point source
emissions inventory is produced (Minn. R. 7019.3000). Minnesota
compiles a full statewide emissions inventory every three years and
submits this data to the NEI. See 2.8.5 of the Minnesota plan.
In 40 CFR 51.308(f)(6)(v) also requires states to include estimates
of future projected emissions and include a commitment to update the
inventory periodically. Minnesota noted its intention to continue to
update the full emissions inventory on the three-year NEI cycle. See
2.8.5 of the Minnesota plan.
In 40 CFR 51.308(f)(6)(vi) requires a state to consider other
elements necessary to assess and report on visibility, including
reporting and recordkeeping. Minnesota has met the other applicable
requirements of 40 CFR 51.308(f)(6), therefore no further elements are
necessary for Minnesota to assess and report on visibility pursuant to
40 CFR 51.308(f)(6)(vi).
EPA proposes to find that Minnesota has met the requirements of 40
CFR 51.308(f)(6) through its continued participation in the IMPROVE
network, its contribution analysis, its emissions reporting to EPA, and
its statewide emissions inventory.
H. Requirements for Periodic Reports Describing Progress Towards the
Reasonable Progress Goals
Section 51.308(f)(5) requires that periodic comprehensive revisions
of states' regional haze plans also address the progress report
requirements of 40 CFR 51.308(g)(1) through (5). The purpose of these
requirements is to evaluate progress towards the applicable RPGs for
each Class I area within the state and each Class I area outside the
state that may be affected by emissions from within that state. In 40
CFR 51.308(g)(1) and (2) apply to all states and require a description
of the status of implementation of all measures included in a state's
first implementation period regional haze plan and a summary of the
emission reductions achieved through implementation of those measures.
The regulations in 40 CFR 51.308(g)(3) applies only to states with
Class I areas within their borders and requires such states to assess
current visibility conditions, changes in visibility relative to
baseline (2000-2004) visibility conditions, and changes in visibility
conditions relative to the period addressed in the first implementation
period progress report. The regulations in 40 CFR 51.308(g)(4) applies
to all states and requires an analysis tracking changes in emissions of
pollutants contributing to visibility impairment from all sources and
sectors since the period addressed by the first implementation period
progress report. This provision further specifies the year or years
through which the analysis must extend depending on the type of source
and the platform through which its emission information is reported.
Finally, 40 CFR 51.308(g)(5), which also applies to all states,
requires an assessment of whether any significant changes in
anthropogenic emissions within or outside the state have occurred since
the period addressed by the first implementation period progress
report, including whether such changes were anticipated and whether
they have limited or impeded expected progress towards reducing
emissions and improving visibility.
Minnesota submitted its previous progress report on December 30,
2014. EPA Guidance suggests covering the period approximately from the
first full year that was not in the previous progress report through a
year that is as close as possible to the submission date of the SIP
revision. Thus, Minnesota's
[[Page 56845]]
progress report covers the period of 2015 to 2021.
Minnesota's plan in section 2.10.1 describes the status of emission
reduction measures from the first implementation period as required by
40 CFR 51.308(g)(1). Minnesota worked on implementing BART controls
although Minnesota taconite facilities subject to the taconite plant
FIP have not fully implemented BART controls pending settlement
agreements. Minnesota also implemented its Northeast Minnesota Plan as
part of its long-term strategy in the first period. This plan
established voluntary combined NOX and SO2
emission reduction targets for 2012 and 2018, which have been met.
As noted in section 2.10.2 of its plan, Minnesota met the emission
reduction measures during the first implementation period, by 2014.
Minnesota notes that emissions continued to fall in the second half of
the first period, largely driven by emission reductions from EGUs.
Minnesota cited EPA data \44\ on EGU sector emissions. The EGU
SO2 emissions declined from 24,366 tons in 2013 to 6,068
tons in 2021. Similarly, EGU NOX emissions went from 24,855
tons in 2013 to 11,392 tons in 2021.
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\44\ See U.S. EPA, Power Sector Emissions Data, CLEAN AIR
MARKETS PROGRAM DATA.
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EPA proposes to find that Minnesota has met the requirements of 40
CFR 51.308(g)(1) and (2) because its submission gives the status of
implementation of first period emission reduction measures and a
summary of the emission reductions achieved through such
implementation.
States are required by 40 CFR 51.308(g)(3) to assess the visibility
progress of its Class I areas. Section 2.10.3 of Minnesota's SIP
submission included summaries of the visibility conditions and the
trend of the five-year averages through 2019 at the class I areas. For
Boundary Waters, the 2019 five-year average visibility impairment is
13.4 dv, down from 15.4 dv in 2014 on the most impaired days.
Visibility conditions at Boundary Waters improved from 4.9 dv in 2014
to 4.2 dv in 2019 on the clearest days. At Voyageurs, visibility
improved from 16.2 dv in 2014 to 13.5 dv in 2019 on the most impaired
days. On the clearest days at Voyageurs, the visibility improved from
5.8 dv to 5.1 dv between 2014 and 2019. EPA proposes to find that
Minnesota has satisfied the requirements of 40 CFR 51.308(g)(3).
Pursuant to 40 CFR 51.308(g)(4), Minnesota provided a summary of
2014 to 2021 NH3, NOX, PM10,
PM2.5, SO2, and VOC emissions from all sources
and activities, including from point, nonpoint, non-road mobile, and
on-road mobile sources. This data is presented by sector in Tables 68
to 82 in its plan at section 2.10.4.
EPA proposes to find that Minnesota has satisfied the requirements
of 40 CFR 51.308(g)(4) by providing emissions information for
NH3, NOX, PM10, PM2.5,
SO2, and VOC emissions by source type.
As for the requirement of 40 CFR 51.308(g)(5) to give an assessment
of changes impeding visibility progress, Minnesota evaluated
contributions within and outside the state. Minnesota noted in section
2.10.5 of its plan that it has continued to make significant progress
in reducing anthropogenic emissions within the state. On the other
hand, one significant increase has been VOC contributions from North
Dakota, primarily from the oil and gas sector. Minnesota states that
this increase has not significantly impeded progress at Minnesota's
Class I areas. Minnesota notes these contributions may need evaluation
in future implementation periods. EPA proposes to find that Minnesota
has met the requirements of 40 CFR 51.308(g)(5).
I. Requirements for State and Federal Land Manager Coordination
Section 169A(d) of the CAA requires states to consult with FLMs
before holding the public hearing on a proposed regional haze SIP, and
to include a summary of the FLMs' conclusions and recommendations in
the notice to the public. In addition, 40 CFR 51.308(i)(2)'s FLM
consultation provision requires a state to provide FLMs with an
opportunity for consultation that is early enough in the state's policy
analyses of its emission reduction obligation so that information and
recommendations provided by the FLMs can meaningfully inform the
state's decisions on its long-term strategy. If the consultation has
taken place at least 120 days before a public hearing or public comment
period, the opportunity for consultation will be deemed early enough.
Regardless, the opportunity for consultation must be provided at least
60 days before a public hearing or public comment period at the state
level. In 40 CFR 51.308(i)(2) also provides two substantive topics on
which FLMs must be provided an opportunity to discuss with states:
assessment of visibility impairment in any Class I area and
recommendations on the development and implementation of strategies to
address visibility impairment. Section 51.308(i)(3) requires states, in
developing their implementation plans, to include a description of how
they addressed FLMs' comments.
On May 11, 2022, Minnesota provided its draft Regional Haze plan to
the USFS, FWS, and the NPS for a 60-day review and comment period
pursuant to 40 CFR 51.308(i)(2). A FLM consultation meeting was held on
June 30, 2022. NPS staff and USFS staff attended. NPS sent a comment
letter on July 11, 2022. USFS sent a comment letter on July 12, 2022.
Minnesota responded to the FLM comments and included the responses on
Table 84 in its plan in accordance with 40 CFR 51.308(i)(3). EPA
proposes to find that Minnesota has satisfied the requirements under 40
CFR 51.308(i) to consult with the FLMs on its Regional Haze SIP for the
second implementation period.
Minnesota published the public notice for the proposed update to
Minnesota's Regional Haze SIP in the State Register on August 22, 2022.
The public comment period was from August 22, 2022, to October 7, 2022.
During the public notice period, a copy of the SIP revision was made
available at Minnesota's office in St. Paul and on its website. A
hearing was held on September 22, 2022. Minnesota received five comment
letters during the public comment period plus two late comment letters.
The comment letters and Minnesota's responses are included in appendix
H of its plan.
Further, Minnesota stated in section 3.2 of its plan that it
performed specific outreach to Minnesota Tribes.\45\ In these efforts,
it contacted Minnesota Tribes to notify them throughout the planning
process of opportunities to provide input. EPA's regional office
routinely informs the Tribes within the Region of regional haze
developments and notifies these Tribes about EPA proposed rulemaking.
LADCO, Minnesota's RPO, includes these Tribes on its Regional Haze
Technical Workgroup.
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\45\ See 2.9.3 in Minnesota's plan.
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V. Environmental Justice Considerations
As explained in the EPA Legal Tools to Advance Environmental
Justice 2022 document, the CAA provides states with the discretion to
consider environmental justice (EJ) in developing rules and measures
related to the regional haze program. In this instance, Minnesota
exercised this discretion. In reviewing Minnesota's analysis, EPA
defers to Minnesota's reasonable exercise of its discretion in
considering EJ. Minnesota notes that reductions in NOX and
SO2 can have localized health benefits near facilities. The
state further notes its actions required during the
[[Page 56846]]
second implementation period are not expected to worsen air quality in
any area of the state. It expects benefits will accrue to Class I areas
as required by the program and to communities near subject facilities.
Based on Minnesota's proposed strategies in the second implementation
period, new controls or limits would benefit Minnesota-identified areas
of concern for EJ. Minnesota identified the Virginia Department of
Public Utilities, Hibbing Public Utilities Commission, and Minnesota
Power's Taconite Harbor Energy Center as facilities impacting
Minnesota-identified areas of concern for EJ. The state also selected
Minnesota Power's Boswell Energy Center as near a Minnesota-identified
areas of concern for EJ. A summary of the facilities Minnesota
identified as impacting an area of environmental-justice concern is
given in Table 83 of Minnesota's plan.
In sum, EPA is proposing approval of the SIP revision because it
meets minimum requirements pursuant to the CAA and relevant
implementing regulations. EPA also finds that Minnesota's consideration
of EJ analyses in this context is reasonable. EPA encourages air
agencies generally to evaluate EJ considerations of their actions and
carefully consider impacts to communities. EPA considers Minnesota's EJ
analysis but that is not the basis for EPA's decision making;
Minnesota's SIP met the minimum applicable requirements, as explained
above.
VI. Proposed Action
EPA is proposing to approve the Regional Haze SIP revision
submitted by Minnesota on December 20, 2022, as satisfying the regional
haze requirements for the second implementation period contained in 40
CFR 51.308(f).
VII. Incorporation by Reference
In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference Minnesota Administrative Orders for Hibbing Public Utilities
Commission, effective August 19, 2022; Minnesota Power--Taconite Harbor
Energy Center, effective May 27, 2021, and May 17, 2022; Northshore
Mining Company, effective August 18, 2022; Virginia Department of
Public Utilities, effective August 16, 2022; Xcel Energy--Allen S.
King, effective July 16, 2021; and Xcel Energy--Sherburne Generating
Plant, effective July 16, 2021, discussed in section IV.E.1. of this
preamble. EPA has made, and will continue to make, these documents
generally available through www.regulations.gov and at the EPA Region 5
Office (please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section of this preamble for more information).
VIII. 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 proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993), and 14094 (88 FR 21879, April 11,
2023);
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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
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 CAA.
In addition, this proposed rulemaking action, pertaining to
Minnesota Regional Haze SIP submission for the second planning period,
is not approved to apply on any Indian reservation land or in any other
area where EPA or an Indian tribe has demonstrated that a tribe has
jurisdiction. In those areas of Indian country, the rule does not have
tribal implications and will not impose substantial direct costs on
tribal governments or preempt tribal law as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines EJ as ``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.'' EPA further defines
the term fair treatment to mean that ``no group of people should bear a
disproportionate burden of environmental harms and risks, including
those resulting from the negative environmental consequences of
industrial, governmental, and commercial operations or programs and
policies.''
Minnesota evaluated EJ considerations as part of its SIP submission
even though the CAA and applicable implementing regulations neither
prohibit nor require an evaluation. EPA's evaluation of Minnesota's EJ
considerations is described above in the section titled,
``Environmental Justice Considerations.'' The analysis was done for the
purpose of providing additional context and information about this
rulemaking to the public, not as a basis of the action. EPA is taking
action under the CAA on bases independent of Minnesota's evaluation of
EJ. Due to the nature of the action being taken here, this action is
expected to have a neutral to positive impact on the air quality of the
affected area. In addition, there is no information in the record upon
which this decision is based that is inconsistent with the stated goal
of E.O. 12898 of achieving EJ for people of color, low-income
populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
[[Page 56847]]
Dated: July 1, 2024.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2024-14851 Filed 7-10-24; 8:45 am]
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