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For more information, go to http://bit.ly/EPAOverstepping and http://www.stopepand.com/index.html.

EPA approves majority of North Dakota clean air program

Implementing the EPA’s proposed federal plan would have cost hundreds of millions of dollars and led to increased energy costs for North Dakotans.

Sens. John Hoeven and Kent Conrad, Rep. Rick Berg, and Gov. Jack Dalrymple announced March 2 that the Environmental Protection Agency (EPA) has agreed to most of the state’s clean air plan for regional haze. EPA officials met with Conrad, Hoeven, Berg and Dalrymple, and agreed to adopt most of the State Implementation Plan (SIP) for regional haze rather than a more costly federal plan. Through this agreement, the EPA will provide North Dakota with flexibility to implement sensible and cost-effective standards for improving visibility in selected areas of the state. 

The agreement follows meetings held between the delegation and EPA officials, including a meeting with Administrator Lisa Jackson last December. The EPA’s decision approves the SIP for Minnkota Power Cooperative’s Milton R. Young Station and Basin Electric’s Leland Olds Station but requires additional control technology for Basin Electric's Antelope Valley Station, which the state had earlier proposed but EPA had previously rejected. If Basin Electric agrees to the suggestion, Antelope Valley Station will also be under the SIP. While additional data is being collected and reviewed by the state and EPA, Great River Energy’s Coal Creek Station will be subject to a Federal Implementation Plan (FIP). EPA committed to an expedited review of the revised data, and the congressional delegation is hopeful it will also be included under the SIP when that new information is received. 

The delegation has remained committed to affirming the State of North Dakota’s ability to manage its own implementation plan, citing the state’s longstanding commitment to meeting all Clean Air Act National Ambient Air Quality Standards as well as the significant progress the state has already made in reducing haze in the region. 

Implementing the EPA’s proposed federal plan would have cost hundreds of millions of dollars and led to increased energy costs for North Dakotans. Furthermore, the North Dakota Department of Health determined the plan would be technically infeasible and would result in visibility differences undetectable to the human eye. 

“North Dakota is one of 12 states to meet all federal ambient air quality standards,” Hoeven said. “Our state has long demonstrated that we can promote strong economic growth and job creation, while doing a good job of protecting our air, land and water. While there is still more work to do, today’s decision by the EPA is a good step forward in recognizing our state’s ability to best manage our own resources.” 

“The state’s plan will improve visibility in North Dakota and do so at a reasonable cost. I am glad that the EPA accepted the state’s determination on the appropriate technology for the Milton Young and Leland Olds plants. The EPA has committed to an expeditious review of the additional information that the state will provide,” Conrad said. “This is good progress and we will stay engaged until the remaining issues are resolved.” 

“North Dakota has worked diligently to meet the EPA’s regional haze regulations and has committed substantial resources to implement a state management plan,” Berg said. “I’m pleased that the EPA has finally acknowledged that North Dakota’s well-researched and cost-effective plan will better address our state’s needs than the forced implementation of the costly federal one-size-fits-all approach, but there is still work to be done to implement the state’s plan in full and ensure that Coal Creek and Antelope Valley Stations are included under the state plan. However, I am encouraged by today’s progress, and will continue to work to ensure that the EPA recognizes that North Dakota, not the federal government, is in the best position to make decisions regarding the management of our state’s resources.” 

Governor Dalrymple met last Sunday with EPA Administrator Lisa Jackson. 

“I urged Administrator Jackson to accept the SIP to the greatest extent possible,” Dalrymple said. “Their decision is mostly good news for North Dakota’s coal fired plants, but we must remain firm that the Coal Creek and Antelope Valley Stations will also be included in our State Implementation Plan after a few technical issues are resolved in the near future.”

Basin Electric letter to Sens. Manchin III and Dan Coats

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November 28, 2011

The Honorable Joe Manchin III                                        The Honorable Dan Coats
United States Senate                                                        United States Senate
303 Hart Senate Office Building                                      493 Russell Senate Office Building
Washington, DC 20510                     & Washington, DC 20510

Dear Senator Manchin and Senator Coats:

I write on behalf of Basin Electric Power Cooperative (Basin Electric) in support of your bill, S.1833, the Fair Compliance Act of 2011. Basin Electric recognizes the difficulty with time constraints to comply with the Environmental Protection Agency’s Utility MACT rule. It will be difficult to complete the engineering, procurement and securing of contractors for installation of equipment within the three year window allowed under the Utility MACT, especially if a large number of retrofits are being completed across the nation.

Basin Electric’s core business is generating and transmitting wholesale bulk electric power to customers, primarily to our 135 member rural electric systems, which are located in nine states: Colorado, Iowa, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Dakota, and Wyoming. Basin Electric owns 3,437 megawatts (MW) and operates 4,424 MW of electric generating capacity. Most of Basin Electric's base load capacity comes from coal. Basin Electric believes your legislation will help address not only the difficult compliance deadline issue of the Utility MACT, but also enable better coordination between the utilities and the electric reliability organizations. This will ensure that a thoughtful and constructive plan is in place to provide a stable flow of power to the transmission grid when these units are off line being retrofitted.

Thank you for your efforts.

Mike Eggl
Senior Vice-President, External Relations & Communications
Basin Electric Power Cooperative

(ND) Letter to EPA Administrator - October 6, 2011

Download the PDF.

October 6, 2011

The Honorable Lisa Jackson, Administrator
U.S. Environmental Protection Agency
Ariel Rios Building, Mail Code: 1101 A 1200
Pennsylvania Avenue,
NW Washington, DC 20460

Dear Administrator Jackson:

We are writing with concern about the EPA's proposal on September 21, 2011 to issue a partial Federal Implementation Plan (FIP) to overrule North Dakota's State Implementation Plan (SIP) on regional haze. We believe this action is unwarranted and that the State of North Dakota met its Clean Air Act requirements in developing its SIP.

We ask that the EPA respect the technical judgment of North Dakota as the statutory permitting authority and accept the State's SIP. We value clean air and note that North Dakota is one of eleven states that meet all the Clean Air Act National Ambient Air Quality Standards. We are pleased that the State's SIP would make significant progress on reducing nitrogen oxide emissions from affected facilities.

The difference between the State's SIP and the EPA's proposed FIP is about how to achieve clean air objectives in a reasonable and cost-effective manner. We believe that the State of North Dakota has accomplished that objective and provided a reasoned explanation for its plan. In the upper Great Plains, we rely heavily on coal-based generation.

The reliable and affordable power provided by coal-based generation has helped our region prosper and will continue to help our economy for many years to come.

The EPA is proposing that North Dakota industry expend hundreds of millions of dollars on technology that the North Dakota Department of Health has determined is not technically feasible and would result in visibility differences that would be unnoticeable to the human eye. We cannot afford to increase the cost of electricity for the region’s customers due to the EPA's proposed FIP that would do so little to improve air quality beyond the State's plan with so much additional cost.

The North Dakota Department of Health, in our opinion, made the correct determination in its SIP to use the best technically feasible technology to improve the visibility in the affected areas. The EPA should respect the State's determination and accept the State's SIP as the right plan to address regional haze in North Dakota.


KENT CONRAD, United States Senate
JOHN HOEVEN, United States Senate
RICK BERG, United States House of Representatives

(MT) Letter to EPA Administrator - Nov. 18, 2011

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November 18, 2011

Administrator Lisa Jackson
US Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, DC 20460

Dear Administrator Jackson:

I am writing to express my concerns about the Environmental Protection Agency's (EPA) Region 8 proposed decision to disapprove a portion of North Dakota's State Implementation Plan (SIP) and issue a Federal Implementation Plan (FIP). It is my understanding that EPA has issued FIPs in several states regarding regional haze. We cannot afford to increase the cost of electricity due to EPA regional haze requirements that minimally impact environmental quality, but with a disproportionally higher additional cost.

In Montana, we rely heavily on coal-based generation for supplemental power production in our hydro-electric generation. This coal-based generation was the key in our region's economic development in the past and is vital to help maintain and grow our economy in the future. Montana electric cooperatives receive a considerable amount of this generation from North Dakota based operations. A FIP requirement will be costly and detrimental to them and their consumers.

I realize that the State of Montana turned its regional haze program over to EPA in 2006 and that EPA Region 8 will soon issue a Federal Implementation Plan for Montana. In addition, the Montana Department of Environmental Quality is concerned about the timing of the regional haze FIP issued in a consent decree that EPA agreed too. Since the Montana DEQ will be responsible for enforcing the FIP requirements, it's essential that the Montana DEQ be given adequate time for collaboration and discussion with the stakeholders.

While the Clean Air Act goal to protect visibility in Mandatory Class I areas is worthy; the program is not health-based and visibility is to be improved over time and incrementally. Since there will be substantial costs and efforts involved with the implementation of the FIP, I urge the EPA to work with our DEQ to develop a plan that also protects Montana consumers from undue increases in their electricity rates.

Should you have any further questions, do not hesitate to contact my office at (202) 225-3211.


Denny Rehberg, Representative

(SD) Letter to EPA Administrator - Nov. 17, 2011

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November 17, 2011

Lisa P. Jackson
US Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Dear Administrator Jackson:

We write with concerns about EPA Region Eight's proposed decision to issue a partial Federal Implementation Plan (FIP) to overrule North Dakota's State Implementation Plan (SIP). The state of North Dakota took into account all of the factors specified in the regional haze regulations and provided a reasoned explanation for its plan. EPA Region Eight should respect their decision and accept the North Dakota's SIP to address regional haze in their state.

In South Dakota, we rely heavily on coal-based generation to supplemental our hydro-electric generation. This coal-based generation has been key to our region's economic development in the past and is vital to help to maintain and grow our economy in the future. We have made great gains in reducing emissions from coal-based generation, while increasing the supply of electricity.

We strive for clean air in this nation, and North Dakota has clean air. In fact, North Dakota is one of eleven states that meet all the Clean Air Act National Ambient Air Quality Standards. Unfortunately, the difference in visibility improvements between the State's SIP and EPA FIP's are not even noticeable to the human eye. Additionally, we understand that the EPA's FIP proposal will cost hundred's of millions of dollars for additional technology that will be passed along to ratepayers in our State.

The Clean Air Act has worked successfully in the past; however, we are concerned that the increased cost of electricity due to EPA regional haze requirements will make limited improvements, but have such high additional costs. As a nation experiencing tough economic times, we must insist on cost-effective, common-sense solutions to potential environmental hazards. We therefore lend our support to the North Dakota SIP, which would improve the visibility in the Class I areas while still protecting the economic interests of their State and our nation.


Tim Johnson, Senator
John Thune, Senator
Krisit Noem, Representative

(WY) Letter to EPA Administrator - Nov. 17, 2011

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November 17, 2011

Honorable Lisa P. Jackson
US Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Dear Administrator Jackson:

We are contacting you regarding concerns about the Environmental Protection Agency's (EPA) proposed decision to disapprove a portion of North Dakota's State Implementation Plan (SIP) and issue a Federal Implementation Plan (FIP) because of the ramifications of such a decision on our home state of Wyoming. The State of North Dakota took into account all of the factors specified in the Clean Air Act regional haze regulations and provided a reasoned explanation for its plan. Wyoming has taken similar care in drafting its plan. These plans balance the need to improve air quality with the need to take a reasonable approach that recognizes the effects of regulation on our economy. The approach insisted by the EPA is neither reasonable nor necessary. We are concerned that the EPA's insistence on moving forward with a FIP will increase energy prices and cost jobs in both North Dakota and Wyoming. At a time or high unemployment nationwide, this result is unacceptable.

The EPA's decision to issue a FIP ignores the reasoned approach taken by North Dakota and sets a precedent that could translate to the upcoming decision on Wyoming's efforts to meet the EPA's regional haze requirements. Rather than ignore the carefully constructed work of state regulatory agencies, the EPA should accept North Dakota's SIP to address regional haze. Wyoming should receive similar treatment when the EPA has finished evaluating its plan.

In Wyoming, we rely heavily on coal mining and coal-based generation to sustain and grow our economy. This nation's prosperity was built largely on the basis of reliable, affordable electricity. We have made great gains in reducing emissions from coal-based generation while increasing the supply of electricity. The coal industry supplies good paying jobs in our state. The affordable electricity provided by coal will help our economy grow.

If the EPA moves forward with its FIP, the cost of implementing such a plan will be tremendous. The electric generating industry of North Dakota will be forced to expend hundreds of millions of dollars on technology that has not been proven on North Dakota lignite coal. These costs will be passed on to consumers. We are told that, even if emissions reductions are successful, the visibility differences will be imperceptible to the human eye. Should the EPA follow a similar path with Wyoming's plan, we are told that similar results will occur. As a nation, we must have solutions that justify the cost. The FIP proposed by the EPA does not appear to meet that test.

States like Wyoming and North Dakota should be given deference to develop a regional haze plan based on sound science, sound policy, and what the law requires. The people in the State are those who are most impacted by the regulations, so it makes sense that the State regulatory agency would be given deference. The EPA's FIP for North Dakota appears to ignore such an approach in favor of a costly, job killing proposal. We urge you to reject the FIP from the EPA's Region 8 in favor of allowing North Dakota to move forward with its SIP. When you make a decision about Wyoming's efforts, we hope you will allow for Wyoming to regulate regional haze within its borders.


Michael B. Enzi, Senator
John Barrasso, MD, Senator
Cynthia Lummis, Representative

EPA proposes rule with huge costs and no visible benefits

Stop EPA    

If EPA's proposed rule is approved, it could cost consumers hundreds of millions of dollars and require a technology that may not work with lignite coal.

On Sept. 1, the U.S. Environmental Protection Agency (EPA) issued its proposal to partially disapprove North Dakota’s State Implementation Plan (SIP) for addressing regional haze. This action, if approved, could have costly implications for the region’s electric consumers.

EPA is proposing a Federal Implementation Plan (FIP) to replace portions of the SIP that outlines requirements for removal of nitrogen oxides (NOx) emissions from power plants in the state. EPA disapproves of the plan North Dakota developed, which addresses NOx at a much lower cost with comparable visibility improvements, said Lyle Witham, Basin Electric manager of environmental services. “The issue is regional haze, which focuses on visibility conditions in national parks and wilderness areas. EPA is trying to force a technology that, when tested, did not work for a miniscule visibility improvement that the human eye can’t detect – at a cost of hundreds of millions of dollars. How much sense does that make?” Witham said. To learn more, read “EPA is stepping on states’ toes,” http://bit.ly/EPAOverstepping.

According to ND Department of Health studies, the visibility differences between the state’s plan and EPA’s plan would be unnoticeable to the human eye. "The purpose of regional haze is to address visibility, not health, but health is not an issue either, contrary to what the EPA and environmental groups are claiming," Witham said. In 2010, the American Lung Association ranked Mercer County (home to several coal-based power plants in North Dakota) as one of the 25 cleanest counties in the United States. Billings County, home to Theodore Roosevelt National Park, is the third cleanest.

“EPA’s proposal would require installing selective catalytic reduction (SCR) technology on facilities in the state,” Witham said. “If approved, that action would cost consumers hundreds of millions of dollars for no visible benefit, and would force the use of a technology that’s never been proven to work with lignite coal.” If fact, in the only time SCR technology has been tested on North Dakota coal, the pilot study testing the technology failed after two months.

Once the EPA’s notice to disapprove North Dakota’s plan is published in the Federal Register, a 60-day comment period will begin. To keep updated on when this will happen, register at www.stopEPAnd.com and like the Facebook page www.facebook.com/StopEPAND. In addition, consumers will have an opportunity to make their voice heard on this issue. A form will be available on www.stopEPAnd.com making it easy for individuals to submit a letter disapproving of EPA’s actions.

A public hearing for the proposal is scheduled to be held Oct. 13 at the Bismarck Veterans Memorial Public Library, Meeting Room A, 515 North 5th Street, Bismarck, ND. The hearing will be held from 3 p.m.-5 p.m., and again from 6 p.m.-8 p.m. Everyone is encouraged to attend. Read EPA’s proposed rule: http://1.usa.gov/NDFIP.

Support legislation to rein in costly EPA regulations

Tell your member of Congress how important affordable electricity is to you and your community.
The EPA has proposed new regulations that will affect electricity prices for all American consumers. H.R. 2401, the Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act, sponsored by Rep. John Sullivan (OK), would require an economic analysis and delay of these costly regulations until the full impact of the EPAs regulatory agenda has been studied.

The National Rural Electric Cooperative Association (NRECA) has set up a form to make it easy to contact members of Congress about this issue.

You can ask your member of the House of Representatives to support H.R. 2401, the Transparency in Regulatory Analysis of Impacts on the Nation (TRAIN) Act, at this web address: https://ssl.capwiz.com/nreca/issues/alert/?alertid=53521526

Send your support: U.S. House to take up bill on coal ash regulation

The U.S. House is expected to take up a bill on coal ash regulation soon. It's time to let your Congressmen know how you feel about it.

In June 2010, the Environmental Protection Agency proposed regulations governing the disposal of coal combustion residuals, often called coal ash. EPA proposed multiple options. One option was to classify it as hazardous and another as non-hazardous. The hazardous approach would include significant costs and affect the beneficial applications of coal ash in products like shingles and bricks. Read more, “Target: Coal ash,” http://bit.ly/TargetCoalAsh.

H.R. 2273 (formerly H.R. 1391), which would prevent EPA from regulating coal combustion residuals under the hazardous waste provisions, will soon be brought to the U.S. House floor. The bill, introduced by Rep. David McKinley (R-WV), will protect beneficial uses of coal ash and protect the environment at the least cost to consumers.

The National Rural Electric Cooperative Association has set up a form to make it easy to contact members of Congress about this issue. Go to Take Action Network. Let your Congressmen know you support legislation that prevents the EPA from regulating coal ash as hazardous.

North Dakota takes stand against EPA threat

The State of North Dakota has filed two motions in a court case that could have implications on the state's right to manage its own air quality program.

July 21, 2011- Published in News Briefs

The Environmental Protection Agency (EPA) has threatened to take over North Dakota’s right to manage its own air quality program. See the Basin Today story “EPA is stepping on states’ toes.” But the State of North Dakota recently filed two motions in a court case pending on this issue that could delay the deadline for the issuance of the proposed federal implementation plan (FIP) for North Dakota. The motions say the state is an essential party to any lawsuit involving North Dakota’s state implementation plan. Also, the EPA cannot issue a FIP before it has determined whether North Dakota’s plan is adequate through a full public hearing process.

EPA has said it wants to set aside part of North Dakota’s regional haze implementation plan in order to impose a FIP. However, the federal requirement would result in visibility differences unnoticeable to the human eye, and at a cost of nearly $700 million in additional and unnecessary spending.

As part of Partners for Affordable Energy, Basin Electric and others have established www.stopEPAND.com and http://www.facebook.com/StopEPAND to explain the issue. In addition, Basin Electric CEO and General Manager Ron Harper and Minnkota Power Cooperative President and CEO Mac McLennan have submitted a letter to the editor to numerous papers throughout the state setting the record straight about the lack of benefits and huge costs associated with EPA’s plan. The letter reads:

There has been a lot of discussion in the opinion pages lately over the U.S. Environmental Protection Agency's plan to take over North Dakota's implementation plan for regional haze. Some have said this is a health issue and claim the utilities don't care about the air North Dakotans breathe. That is unfair and untrue. As not-for-profit cooperatives who generate and serve electricity to all of the rural regions of North Dakota, we do care. It is time to set the record straight.

The truth is that North Dakota utilities have a long record of environmental stewardship, spending billions of dollars to upgrade emissions equipment at coal plants. Even further, our two utilities have invested heavily in clean, renewable energy sources over the last decade, installing nearly 1,000 megawatts of wind generation capacity. In fact, the American Lung Association has consistently ranked North Dakota as having some of the cleanest air in the United States. Mercer and Oliver Counties, home to several coal power plants, received an "A" grade for clean air from the American Lung Association in 2010.

The current issue is not about health. Utilities are already meeting required national ambient air quality standards to reduce emissions that can impair health. It is about federal mandates on visibility with huge costs, but with benefits too small to see. The Regional Haze Program is meant to do one thing - control emissions because of their effect on visibility in national parks and wilderness areas.

North Dakota has a plan to meet those requirements, and utilities will spend nearly $700 million on new emissions controls. But that's not enough for the EPA. The EPA's plan would require North Dakota's plant operators to spend up to an additional $700 million on a technology that hasn't even been proven on lignite. Even if it would work on our plants, the modeling indicates that the difference in visibility benefits between the state and EPA plans isn't discernable to the human eye.

The truth is the EPA could require North Dakota to reduce emissions of sulfur and nitrogen oxides to zero - an unrealistic scenario that includes shutting down every industrial facility in the western part of the state - and it still wouldn't meet its visibility targets. That is because natural and out-of-state sources, like forest fires, affect visibility and will not be controlled under the state or EPA plans.

As electric cooperatives in North Dakota, our roots lie in the farmers and ranchers who have a stake in the land and in delivering electricity to our member-owners. Our commitment to the environment is strong.

After all, we live here and are raising our families here. We all enjoy clean air, and we all should be able to enjoy the magnificent views of our wide open spaces.

We should also be allowed the economic prosperity generated by the use of affordable, reliable and domestically generated electricity. Letting the EPA march in and take over isn't the right answer for North Dakota.

The state’s motions make it unclear whether and when EPA will issue its proposed FIP on North Dakota. Learn more about the issue and watch for updates on www.stopEPAND.com.

EPA coal ash rulemaking topic of letter to White House

The following letter was sent to President Obama by United States senators concerned about the Environmental Protection Agency's proposed rulemaking for regulation of coal combustion residues.  Download a PDF of the letter.

United States Senate
Washington, D.C. 20510

May 26, 2011

The Honorable Barack Obama President of the United States
The White House
1600 Pennsylvania Avenue
NW Washington, DC 20500

Dear President Obama:

In November, the public comment period concluded on the Environmental Protection Agency's (EPA's) proposed rulemaking for the regulation of coal combustion residues (CCRs). We write to ask the Administration to rapidly finalize a rule regulating CCRs under subtitle D, the nonhazardous solid waste program of the Resource Conservation and Recovery Act (RCRA).

The release of CCRs from the Tennessee Valley Authority impoundment in December 2008 properly caused the EPA to consider whether CCR impoundments and landfills should meet more stringent standards. All operators should meet appropriate standards, and those who fail to do so should be held responsible. We believe regulation of CCRs under subtitle D will ensure proper design and operations standards in all states where CCRs are disposed.

A swift finalization of regulations under subtitle D offers the best solution for the environment and for the economy. The environmental advantages of the beneficial use of CCRs in products such as concrete and road base are well-established. For example, a study released by the University of Wisconsin and the Electric Power Research Institute in November 2010 found that the beneficial use of CCRs reduced annual greenhouse gas emissions by an equivalent of 11 million tons of carbon dioxide, annual energy consumption by 162 trillion British thermal units, and annual water usage by 32 billion gallons. These numbers equate to removing 2 million cars from our roads, saving the energy consumed by 1.7 million American homes, and conserving 31 percent of the domestic water used in California.

We are concerned that finalizing a rule regulating CCRs under subtitle C of RCRA rule would permanently damage the beneficial use market. Since the EPA first signaled its possible intention to regulate CCRs under subtitle C, financial institutions have withheld financing for projects using CCRs, and some end-users have balked at using CCRs in their products until the outcome of the EPA's proposed rulemaking is known. Already, beneficial use of CCRs has decreased, and landfill disposal has increased. This result is counterproductive but likely to continue as long as the present regulatory uncertainty persists.
State environmental protection agencies have cautioned the EPA that regulating CCRs under subtitle C will overwhelm existing hazardous waste disposal capacity and strain budget and staff resources. Moreover, the bureaucratic and litigation hurdles involved in a subtitle C rule could lead to long delays before storage sites are upgraded or closed, resulting in slower environmental protection.

In two prior reports to Congress, the EPA concluded that disposed CCRs did not warrant regulation under subtitle C of RCRA. Despite this prior conclusion, the EPA's proposed subtitle C option would regulate CCRs more stringently than any other hazardous waste by applying the subtitle C rules to certain inactive and previously closed CCR units. The EPA has never before interpreted RCRA in this manner in over 30 years of administering the federal hazardous waste rules. The subtitle C approach is not supportable given its multiple adverse consequences and the availability of an alternative, less burdensome regulatory option under RCRA's nonhazardous waste rules that, by the EPA's own admission, will provide an equal degree of protection to public health and the environment.

In conclusion, we request that the Administration finalize a subtitle D regulation as soon as possible. The states and the producers of CCRs have raised concerns that should be corrected in a final subtitle D rule, including ensuring that any subtitle D regulations are integrated with and administered by state programs. Subtitle D regulation will improve the standards for CCR disposal, ensure a viable market for the beneficial use of CCRs, and achieve near-term meaningful environmental protection for disposed CCRs.
Thank you very much for your consideration of this important matter. We look forward to your response and to working with you to address this issue in a manner that is both environmentally and economically sound.


EPA to override N.D. plan for fighting haze

(04/25/2011)  by Gabriel Nelson, Environment & Energy News Daily, http://www.eenews.net/eed/, reprinted with permission.

As it works through a backlog of state plans for improving visibility at national parks and wilderness areas, U.S. EPA is planning to reject North Dakota’s proposal and require the owners of three coal-fired power plants to spend more than $500 million on extra pollution controls, state and federal officials say.

The agency is acting under an oft-forgotten section of the Clean Air Act that requires each state to have a plan for haze, much of which is caused by air pollution from industrial plants. States are supposed to make incremental progress, decade by decade, with the goal of restoring natural visibility to national parks by 2065.

EPA has decided that North Dakota’s plan, submitted in February, would not do enough to cut pollution from the Milton R. Young Station near Center, the Leland Olds Station near Stanton, and the Antelope Valley Station near Beulah. The plan, which has not been released to the public and was first reported by The Bismarck Tribune, would cut the plants’ emissions of nitrogen oxides (NOx) by more than 80 percent, said Monica Morales, the air quality planning chief at EPA’s Region 8 office in Denver.

“This is rare,” Morales told the newspaper. “We did not make this decision lightly.”

North Dakota’s haze plan is required to clear the air at “class 1” wilderness areas, including three sections of North Dakota’s Theodore Roosevelt National Park and the Lostwood National Wildlife Refuge. While federal officials say the extra pollution controls are needed, their plan has drawn early criticism from state officials, who say it is too costly.

North Dakota’s proposal would reduce NOx emissions from the three power plants by about 20,800 tons per year. EPA predicts that its plan would cut NOx emissions by an additional 12,100 tons—about 0.6 percent of the total amount released by U.S. power plants last year.

North Dakota had proposed requiring selective non-catalytic reduction (SNCR) on boilers at the Young and Olds stations, but EPA wants them to install selective catalytic reduction (SCR) units instead.

Those units have not been used at any plants that burn North Dakota lignite, and they might not work with the high-sodium coal, said Tom Bachman, a senior environmental engineer at the North Dakota Department of Health. That is because the sodium can “poison” the catalyst or block its pores, he said.

Carl Daly, manager of air permitting, monitoring and modeling at the Region 8 office, said EPA’s analysis suggests that SCR could be used on the plants, though it may present some new challenges.

“At the end of the day, it’s a technical disagreement,” Daly said.

EPA would also require the newer Antelope Valley plant, which started producing electricity in the 1980s, to cut its emissions with low-NOx burners and overfire air systems. All together, the owners of the three power plants estimate that EPA’s plan would cost them between $550 million and $675 million—about $500 million more than the state proposal.

“It’s very expensive and provides very little visibility improvement,” Bachman said.

If EPA moves forward with its proposal, it would be the second time that the agency has rejected a state haze plan.
EPA suggested its own haze plan for Oklahoma last month after deciding that the state’s proposal would allow power plants to release too much sulfur dioxide (E&E Daily, March 8).

Other haze plans run late

Congress initially directed EPA to act on haze with the 1977 amendments to the Clean Air Act, and the agency was given more marching orders by the next round of amendments in 1990.

Pollution sources that have a major impact on haze are supposed to add the best available retrofit technology to cut down on their emissions, but the state plans for implementing those rules have run years late. That has prompted lawsuits from environmental groups.

More than 40 state plans have now been proposed, but federal officials have not given any of them final approval, despite the latest legal deadline of Jan. 15. EPA needs to approve North Dakota’s plan or come up with its own by May 13, Bachman said.

There are nine states that still do not have a proposal, said Stephanie Kodish, clean air counsel at the nonprofit National Parks Conservation Association. EPA has yet to propose a plan for Montana, which turned over the reins to federal officials. New Mexico and Utah have asked to submit a joint proposal, and no plan has been put forward by Illinois, Maryland, Massachusetts, Nebraska, Pennsylvania or Wisconsin.

Kodish, whose group was among those that sued EPA to force action on the haze plans, said the rules have implications for public health as well as visibility at parks and wilderness areas. Both NOx and SO2 cause soot to form in the air, while NOx emissions also lead to the creation of ground-level ozone, the main ingredient in smog.

Even if public health is not the “linchpin” of the haze program, and those concerns cannot be used to decide what technology is needed to cut down on emissions, Kodish said, “you would be blind to not acknowledge that’s a significant benefit.”

Letter from South Carolina Attorney General - Feb. 15, 2011

On Feb. 18, 2011 South Carolina Attorney General Alan Wilson sent a letter to all attorneys general in the United States asking for commitment to oppose the Environmental Protection Agency’s proposed "Endangerment Finding" issued in 2009. Wilson attached a sample letter to Lisa Jackson, EPA Administrator, in which he requested deferral of greenhouse gas regulations. "A deferral would allow Congress to fully debate and decide these issues," Wilson wrote. Wilson's letter to the AGs asks them to join him in signing the letter by March 15. 

Letter to EPA Administrator - Feb. 28, 2011

Download the PDF

Senator John


Senator Kent


Congressman Rick


Governor Jack

February 28, 2011

Ms. Lisa Jackson Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Ave NW
Washington DC 20460

Dear Administrator Jackson:

We strongly object to the United States Environmental Protection Agency’s preliminary decision to disapprove North Dakota’s Regional Haze State Implementation Plan (SIP). Congress left primary responsibility for the development of these plans to the states, and the fact that EPA might prefer something different is insufficient under the Clean Air Act (CAA) to disapprove state plans. SIP disapproval should occur only when a state has failed to take into account the factors specified in the Regional Haze regulations and failed to provide a reasoned explanation for its judgment. That is not the case for North Dakota.

EPA has informed North Dakota that it intends to disapprove North Dakota’s SIP and propose a Federal Implementation Plan (FIP) for several coal-fired power plants in the state because of a “disagreement” regarding what constitutes Best Available Retrofit Technology (BART) for those units. We feel that this action is unwarranted, as North Dakota completed a detailed BART analysis for these units following EPA’s BART Guidelines and supported its BART determination with extensive reasoning. EPA’s preference would require hundreds of millions of dollars in additional control equipment at each of the coal units in question with no or negligible improvement in visibility, a result North Dakota does not feel is warranted at this time. That is precisely the determination Congress left to the states, which EPA’s proposed course of action frustrates. For EPA to insist on its preferred outcome would be inappropriate for North Dakota in this uncertain economy.

The following 5 reasons support our strongly held belief that EPA should not substitute its judgment for North Dakota in reviewing the pending Regional Haze SIP, and the underlying BART determinations:

1. EPA does not have the authority to impose specific BART determinations on states through the SIP approval process. Congress intended states to make visibility improvement decisions, including BART determinations. EPA’s disapproval of regional haze SIPs because they fail to identify EPA’s preferred source-specific BART determination is inconsistent with Congress’ mandate that states) and not the EPA, playa primary role in specifying the manner in which air quality standards are met through the SIP process.

2. EPA’s rules require that it defer to state judgment on Regional Haze SIPs. EPA assigns to the states the authority and discretion to promulgate Regional Haze SIPs, and necessarily relies on states to assess the factors on which Regional Haze SIPs are based. For example, EPA’s BART Guidelines list the factors that must be considered in making a case-by-case BART determination and provides that states are free to determine the weight and significance [Q be assigned to each factor.

3. States arc more familiar with the sources in their jurisdictions and the underlying facts that bear on BART determinations and the development of Reasonable Progress Goals and Long-term Strategies. They are better positioned than EPA to make those judgments that hinge on the individual facts and circumstances of the sources located in their states.

4. States invest significant resources to carry out their Regional Haze responsibilities, an effort that is wasted if EPA rejects the SIP. Given the current economic climate, this country cannot afford to have EPA waste limited resources to duplicate or override state efforts that comply with Clean Air Act requirements.

5. EPA overruling state decisions can adversely impact the financial interests of states and their citizens without providing any compensating benefit. If a state has developed a Regional Haze SIP that takes into account all statutory and regulatory factors, reasonably balances costs and benefits and improves visibility, Regional Haze objectives have been accomplished and there is no justification for EPA to further burden state economies.

EPA should acknowledge and respect the authority and discretion given to states to make these judgments. As EPA begins the process of taking action on the number of pending Regional Haze SIPs before it, we strongly urge EPA to wield its SIP disapproval and FIP authority sparingly, and only in those cases where the states have not complied with the requirements of the Clean Air Act and the underlying Regional Haze regulations.

Respectfully yours,

Jack Dalrymple, Governor
John Hoeven, Senator
Kent Conrad, Senator
Rick Berg, Congressman

Letter to EPA Assistant Administrator - Feb. 28, 2011

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Senator John


Senator Kent


Congressman Rick


Governor Jack

February 28, 2011

Gina McCarthy
Assistant Administrator
Office of Air and Radiation
United States Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, DC 20004

Dear Assistant Administrator McCarthy:

It is with deep concern that we write with respect to the Environmental Protection Agency’s January 17, 2011, letter challenging the North Dakota Department of Health’s Best Available Control Technology (BACT) determination for the Milton R. Young Station (MRYS). The Environmental Protection Agency (EPA) has never challenged a North Dakota Department of Health (NODH) BACT determination and we do not believe EPA should challenge this one for a variety of reasons.

We are deeply committed to combining the development of our nation’s energy resources with good environmental stewardship. This must be done in accordance with good science and state and federal laws. That is why the North Dakota Department of Health (NDDH) and the Environmental Protection Agency (EPA) worked to make sure MRYS complied with the Clean Air Act. However, the EPA should now recognize NDDH’s BACT determination.

Minnkota Power Cooperative Inc. operates the Milton R. Young Station near Center, North Dakota. The station uses two cyclone-fired units to burn North Dakota lignite coal, which produces approximately 634 megawatts of energy. The issue at hand is whether selective catalytic converter pollution controls for nitrogen oxides (NOx) could feasibly be applied to the unique North Dakota lignite used at the unique cyclone boilers at MRYS.

In June of 2002, the United States of America –– on behalf of the EPA and the State of North Dakota, as part of a nation-wide enforcement initiative, filed a Notice of Violation. The parties entered into a Consent Decree to settle the alleged violations, which was approved and entered by the Court on July 27, 2006. Under the terms of the Consent Decree, the NDDH was responsible for making a NOx BACT Determination for both units at Young Station.

The Consent Decree required Minnkota to submit to the NDDH for review and approval a NOx BACT Analysis for the two units at Young Station. In accordance with the Consent Decree, Minnkota evaluated as part of its BACT Analysis, selective catalytic reduction (SCR), selective noncatalytic reduction (SNCR), overfire air (OF A), rich reagent injection (RRI) and other potential technologies. Throughout the process ‘Minnkota submitted additional, pertinent information requested by the NDDH and the EPA Region 8 staff.

On October 9, 2006, MRYS owners submitted their BACT Analysis to the NDDH as required by the consent decree. In June 2008, November 2008, November 2009, and February 2010, NDDH painstakingly reviewed the technical evidence related to whether emissions from the combustion of North Dakota’s highly unique lignite in cyclone fired boilers could feasibly be controlled through the otherwise commonplace SCR control systems. In each iteration, NDDH sought and received comments from EPA, and comprehensively addressed those comments-even comments by EPA and its consultants that were later found to be without evidentiary support.

So in November 2010, NDDH made its final findings and BACT Determination for MRYS. These findings-set forth in thirty-six detailed paragraphs—conclude that SCR is not technically feasible for the control of nitrogen oxides at MRYS, primarily because of the physical and chemical characteristics of the flue gas particular to the combustion of North Dakota lignite. ‘Ibese detailed paragraphs address questions relating to the unique composition of North Dakota lignite and the ability of its combustion byproduct co render SCR catalysts so unusable that no catalyst vendor will provide what would otherwise be a standard performance guarantee. These detailed paragraphs also carefully distinguish the use of SCR at a North Dakota lignite-fueled, cyclone-fired plant from other uses of SCR in lignite applications—a procedure that is completely consistent with the uniquely case-by-case analysis recommended in EPA’s own BACT permitting guidance. After NDDH’s final determination, the matter should have ended.

But now we understand that EPA has provided formal notice to NDDH that it—after hundreds of pages of technical reports and over four years of analysis—disagrees with NDDH’s conclusions, and has expressed its intention to take the matter to federal court for resolution. This posture is a serious breach of the agreement between NDDH and EPA—expressed in the Consent Decree —that NDDH would exercise its authority as the primary permitting agency to make the BACT determination, and that EPA would defer to NDDH’s exercise of technical judgment and discretion.

Based upon the long history of NDDH in operating its State Implementation Plan approved Clean Air Act permitting program, the potential damage to the North Dakota-EPA relationship, the robust administrative record in this NDDH BACT determination, the potential legal costs for all parties, the lack of national impacts from this BACT Determination, and the small chance the EPA could meet the burden of proof required to overturn the NDDH’s decision %7e we ask that you personally assess this matter before the EPA moves this issue into the Federal Court.

Jack Dalrymple

John Hoeven

Kent Conrad

Rick Berg
C: James B Martin
   EPA Region 8 Administrator

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