Comment on Draft Permit for Essar Steel Minnesota

Transcription

1 February 17, 2012 VIA FEDEX and FACSIMILE Trevor Shearen, PE, Strategic Projects Sector Industrial Division, Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, MN Fax: (651) Re: Comment on Draft Permit for Essar Steel Minnesota These comments are submitted on behalf of the Minnesota Center for Environmental Advocacy and the Midwest Environmental Defense Center and their members. We appreciate the opportunity to provide these comments regarding the Essar Steel Minnesota Facility in Nashwauk, Itasca County, Minnesota. Comment 1: MPCA must do an analysis of the facility s compliance with the PM2.5 increment (Class I and Class 2). EPA has established PM2.5 increments that apply after the effective date of October 20, Fed. Reg. 64,864. Since Essar Steel will receive its PSD permit after the effective date, it must show that its emissions will not cause or contribute to a violation of the increment. 75 FR at 64,899 ("each source that receives its PSD permit after the effective date of the PM2.5 increments [Oct 20, 2011], regardless of when the application was submitted, to provide a demonstration that the source's proposed emissions increase, along with other increment-consuming emissions, will not cause or contribute to a violation of the PM2.5 increments."). However, in the draft permit and

2 statement of basis it appears that MPCA has not undertaken this analysis. MPCA must correct this omission. Comment 2: MPCA must make its analysis of the facility s PM2.5 increment compliance available to the public for a period of public notice and comment. Section 165(a)(2) of the Act, 42 U.S.C. 7475(a)(2), requires that a public hearing [be] held with an opportunity for interested persons to appear and submit written or oral presentations on the air quality impact Additionally, 7475(a)(3) requires that the facility demonstrate that it will not cause a violation of increment and 7475(e)(3)(B) and (C) require the analysis of air quality impacts to be done and the results to be available at the time of the public hearing on the application. Furthermore, MPCA must specify its modeling procedures with reasonable particularity in the public notice. 42 U.S.C. 7475(e)(3)(D). This was not done for any PM2.5 increment modeling. Therefore, when MPCA corrects its omission noted above, and requires Essar to demonstrate that it will not cause or contribute to a violation of any PM2.5 increment, MPCA must undergo a new notice and comment period for the permit. The applicable regulations provide that where additions to the record are substantial, the permitting authority must reopen the record in one of three ways: (1) by preparing a new draft permit subject to the full public comment process; (2) preparing a revised statement of basis and reopening the comment period; or (3) reopening or extending the comment period. 40 C.F.R (b). There is no question that including an increment analysis that was not done prior to, and not included in the supporting documents available to the public for the original public notice and comment period, is a substantial additional to the record. Merely including an increment analysis in the final permit decision does not satisfy the Clean Air Act s public notice and participation requirements. Further still, 40 C.F.R (q) requires MPCA to follow the procedures in 40 C.F.R (r)(1979), which requires that the increment consumption be included in the public notice. 40 C.F.R (r)(2)(iii) (1979); see also, In re Hadson Power 14- Buena Vista, 4 E.A.D. 258, 272 (EAB 1992). Comment 3: The Air Quality Impact Analysis Is Improperly Based On Background Concentrations That Are Not From Monitors That Meet The Applicable Requirements. PSD permitting must include an analysis of the permittee s air quality impacts, combined with the impacts from nearby sources and background concentrations. Background concentrations must be from either site-specific monitoring located in 2

3 specific places at the site of the proposed project, or from existing monitors that meet specific requirements for location, data quality, and the currentness of the data. For example, if data from an existing off-site monitor is used, the monitor must be located in the area of maximum concentration increase from the proposed facility, the maximum concentration from existing sources, and the area of maximum combined impact from existing and new sources. Generally, monitors located more than 10 km cannot be used for determining background concentrations for the propose PSD project analysis. This is especially true of a multi-source area like the one in which the permittee is constructing. 1 Moreover, the applicant and the permitting agency must provide a specific basis in the permit record for using off-site monitors for background concentrations. The permit at issue here appears to use background data distant from the proposed project. (MPCA s Technical Support Document does not identify the basis for the background concentrations, so we assume they are directly from page 64 of the application.) Not only do those data not meet the requirements for being representative of location, and not only are some not current, but MPCA has not made the basis for using those data available in the public record. Furthermore, it appears that the background concentrations do not even represent monitored concentrations. For example, the PM 2.5 background concentrations are from Virginia, Minnesota, but reduced by 5%, the NOx concentrations are from Cloquet, Minnesota, but reduced by 20%, and the SO 2 concentrations are from Rosemount, Minnesota, and also reduced by 20%. See Application at p. 64. There is no legal or factual basis for these made-up background concentrations. The air impact analysis must be redone by using background data from sitespecific monitors or monitors that meet the requirements to use substituted data from off-site monitors. If MPCA decides to use substituted data from off-site monitors, it must make sure the record is sufficient to demonstrate that those monitor data satisfy the applicable requirements in EPA s Monitoring Guidelines. MPCA must then make the new analysis available to the public in a new notice and provide a new public comment process. 1 Other emission sources in the area include U.S. Steel Keewatin, Hibbing Taconite, United Taconite Fairlane Plant Blandin Paper Co., Minntac, Hibbing Public Utility, and Minnesota Power Boswell Energy Center. 3

4 Comment 4: Adding A Monitored Design Value to A Modeled Design Value Does Not Predict the Maximum Impact. It is not clear whether the air quality analysis for this permit improperly combines a background and modeled value that are both expressed based on the form of the standard (i.e., as a 98 th or 99 th percentile of modeled or monitored values). Specifically, the analysis starts with a background concentration that represents the design value based on the form of the standard (i.e., 3-year average H2H for PM2.5, 3-year average H8H for NOx, and 3-year average H4H for SO2). The facility s impact is then modeled. It is not clear whether the modeled concentration for any of the pollutants is expressed as the design value based on the form of the standard (H2H, H8H or H4) or as the single maximum concentration, and whether two design values (each based on the % form of the standard) combined. At a minimum, MPCA should be clear in the record and the public documents how it determined the total modeled concentrations. EPA guidance has explained that combining a 98 th percentile monitored value with a 98 th percentile of modeled values does not represent the maximum 98 th percentile of total impacts and therefore not protective of the NAAQS. Therefore, EPA has cautioned that if the 3-year 98 th percentile design value is used as background, then the modeled concentration used in the cumulative impact analysis should be the average of the highest modeled concentration not the 98 th percentile concentration. See e.g., Memorandum from Stephen Page, Modeling Procedures for Determining Compliance with PM2.5 NAAQS at p. 8 (March 23, 2010). Alternatively, if the modeled result is expressed based on the form of the standard (e.g., 98 th percentile), then it should be added to the single highest monitored value and not the 98 th percentile of the monitored values. See Memorandum from Anna Marie Wood, EPA OAQPS, General Guidance for Implementing the 1-hour NO2 National Ambient Air Quality Standard in Prevention of the Significant Deterioration Permits, Including an Interim 1-hour NO2 Significant Impact Level at p. 18 (June 28, 2010) Therefore, if any of MPCA s air quality impact analyses fail to account for maximum possible ambient concentrations due to the form of the standard, the analysis must be redone. Once redone, the results must be included in a new public notice and MPCA must provide for a new public comment period. Comment 5: Using SILs to Excuse Modeled NAAQS Violations Is Incorrect. While the MPCA s statement of basis and public notice documents fail to point it out, the air quality analysis done for this facility actually predicts NAAQS violations. However, the permittee appears to discard certain modeled violations based on a socalled culpability analysis by applying SILs to claim that where the facility s impact is 4

5 below the SIL, its impact does not count towards a NAAQS violation. There is no lawful basis for this. Moreover, to the extent that the applicant and MPCA claim that a SIL represents a de minimis air impact, there is no basis in the record for such a finding. To the extent that MPCA intends to rely on SILs based on a de minimis theory, it has a burden of creating a factual record sufficient to support that theory. It has not done so here. Furthermore, even if the use of a SIL for a culpability analysis was legal, the applicant s analysis is incomplete. In Table 5 of Appendix E of the Application, the applicant applies a SIL to discount the Maximum Modeled Concentration. However, it fails to disclose whether the next-highest concentration was also discounted. In other words, the record is not clear as to how many modeled violations are ignored based on a culpability analysis. The applicant only appears to have disclosed the first maximum concentration that was ignored. All modeled violations should be disclosed and, for each, the basis for ignoring them in the PSD permit analysis. For example, Appendix E, Table 5 of the Application notes that the highest 24- hour PM2.5 modeled impact was 31 ug/m3, which was ignored based on the culpability analysis. However, in the MPCA s Technical Support Document, the maximum modeled concentration used for the analysis was 15 ug/m3. It is unclear (at best): (a) whether there were any modeled concentrations between 15 and 31 ug/m3, (b) whether the applicant similarly ignored those results, and (c) if so, on what basis. If any modeled concentrations were ignored based on a culpability analysis, other than the maximum modeled concentration, those must be disclosed and the basis for ignoring them must also be set forth in the public record. (Again, of course, there is no legal or factual basis in the record for ignoring any, including the maximum modeled concentration). Thank you for this opportunity to comment on the permit. Please let us know when MPCA decides to renotice a revised draft permit and extend the comment period to address the issues above. If MPCA does not extend the comment period, we request that you send notice of the permit decision to us. 5

6 Regards, Midwest Environmental Defense Center P.O. Box Madison, WI Minnesota Center for Environmental Advocacy 26 E. Exchange Street, Ste. 206 St. Paul, MN