[Federal Register Volume 83, Number 81 (Thursday, April 26, 2018)]
[Proposed Rules]
[Pages 18248-18255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08623]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0406; FRL-9976-56--Region 8]


Approval and Promulgation of Air Quality Implementation Plans; 
North Dakota; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve certain portions of a State Implementation Plan (SIP) revision 
to address regional haze submitted by the Governor of North Dakota on 
March 3, 2010, along with SIP Supplement No. 1 submitted on July 27, 
2010, SIP Amendment No. 1 submitted on July 28, 2011 and SIP Supplement 
No. 2 submitted on January 2, 2013 (collectively, ``the Regional Haze 
SIP''). Specifically, the EPA is proposing to approve the nitrogen 
oxides (NOX) Best Available Retrofit Technology (BART) 
determination for Coal Creek Station included in SIP Supplement No. 2. 
Coal Creek Station is owned and operated by Great River Energy (GRE) 
and is located near Underwood, North Dakota. This Regional Haze SIP was 
submitted to address the requirements of the Clean Air Act (CAA or 
``the Act'') and our rules that require states to develop and implement 
air quality protection plans to reduce visibility impairment in 
mandatory Class I areas caused by emissions of air pollutants from 
numerous sources located over a wide geographic area (also referred to 
as the ``regional haze program''). States are required to assure 
reasonable progress toward the national goal of achieving natural 
visibility conditions in Class I areas. The EPA is taking this action 
pursuant to section 110 of the CAA.

DATES: Written comments must be received on or before May 29, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2010-0406 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from www.regulations.gov. The EPA may publish any 
comment received to the public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information, the disclosure of which 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. The 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, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit

[[Page 18249]]

https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Aaron Worstell, Air Program, EPA, 
Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-
1129, (303) 312-6073, [email protected].

I. Background

A. Requirements of the Clean Air Act and the EPA's Regional Haze Rule

    In CAA section 169A, added in the 1977 Amendments to the Act, 
Congress created a program for protecting visibility in the nation's 
national parks and wilderness areas. This section of 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.'' 
\1\ On December 2, 1980, the EPA promulgated regulations to address 
visibility impairment in Class I areas that is ``reasonably 
attributable'' to a single source or small group of sources, otherwise 
known as reasonably attributable visibility impairment.\2\ These 
regulations represented the first phase in addressing visibility 
impairment. The EPA deferred action on regional haze that emanates from 
a variety of sources until monitoring, modeling, and scientific 
knowledge about the relationships between pollutants and visibility 
impairment were improved.
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    \1\ 42 U.S.C. 7491(a). Areas designated as mandatory Class I 
Federal areas consist of national parks exceeding 6000 acres, 
wilderness areas and national memorial parks exceeding 5000 acres, 
and all international parks that were in existence on August 7, 
1977. 42 U.S.C. 7472(a). In accordance with section 169A of the CAA, 
EPA, in consultation with the Department of Interior, promulgated a 
list of 156 areas where visibility is identified as an important 
value. 44 FR 69122 (November 30, 1979). The extent of a mandatory 
Class I area includes subsequent changes in boundaries, such as park 
expansions. 42 U.S.C. 7472(a). Although states and tribes may 
designate as Class I additional areas which they consider to have 
visibility as an important value, the requirements of the visibility 
program set forth in section 169A of the CAA apply only to 
``mandatory Class I Federal areas.'' Each mandatory Class I Federal 
area is the responsibility of a ``Federal Land Manager.'' 42 U.S.C. 
7602(i). When we use the term ``Class I area'' in this section, we 
mean a ``mandatory Class I Federal area.''
    \2\ 45 FR 80084 (December 2, 1980) (codified at 40 CFR part 51, 
subpart P).
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    Congress added section 169B to the CAA in 1990 to address regional 
haze issues. The EPA promulgated a rule to address regional haze on 
July 1, 1999.\3\ The Regional Haze Rule (RHR) revised the existing 
visibility regulations to integrate provisions addressing regional haze 
and established a comprehensive visibility protection program for Class 
I areas. The requirements for regional haze, found at 40 CFR 51.308 and 
51.309, are included in the EPA's visibility protection regulations at 
40 CFR 51.300-51.309. The EPA revised the RHR on January 10, 2017.\4\
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    \3\ 64 FR 35714 (July 1, 1999) (amending 40 CFR part 51, subpart 
P).
    \4\ 82 FR 3078 (January 10, 2017).
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    The CAA requires each state to develop a SIP to meet various air 
quality requirements, including protection of visibility.\5\ Regional 
haze SIPs must assure reasonable progress toward the national goal of 
achieving natural visibility conditions in Class I areas. A state must 
submit its SIP and SIP revisions to the EPA for approval. Once 
approved, a SIP is enforceable by the EPA and citizens under the CAA; 
that is, the SIP is federally enforceable. If a state fails to make a 
required SIP submittal, or if we find that a state's required submittal 
is incomplete or not approvable, then we must promulgate a Federal 
Implementation Plan (FIP) to fill this regulatory gap, unless the state 
corrects the deficiency.\6\
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    \5\ CAA sections 110(a), 169A, and 169B, 42 U.S.C. 7410(a), 
7491, and 7492(a).
    \6\ CAA section 110(c)(1), 42 U.S.C. 7410(c)(1).
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B. Best Available Retrofit Technology (BART)

    Section 169A of the CAA directs the EPA to require states to 
evaluate the use of retrofit controls at certain larger, often 
uncontrolled, older stationary sources in order to address visibility 
impacts from these sources. Specifically, section 169A(b)(2)(A) of the 
CAA and the RHR require states' implementation plans to contain such 
measures as may be necessary to make reasonable progress toward the 
natural visibility goal, including a requirement that certain 
categories of existing major stationary sources built between 1962 and 
1977 procure, install, and operate the ``Best Available Retrofit 
Technology'' as determined by the states. Under the RHR, states are 
directed to conduct BART determinations for such ``BART-eligible'' 
sources that may reasonably be anticipated to cause or contribute to 
any visibility impairment in a Class I area.
    On July 6, 2005, the EPA published the Guidelines for BART 
Determinations under the Regional Haze Rule (the ``BART Guidelines'') 
to assist states in determining which sources should be subject to the 
BART requirements and the appropriate emission limits for each covered 
source.\7\ The process of establishing BART emission limitations 
follows three steps: First, identify the sources that meet the 
definition of ``BART-eligible source'' set forth in 40 CFR 51.301; \8\ 
second, determine which of these sources ``emits any air pollutant 
which may reasonably be anticipated to cause or contribute to any 
impairment of visibility in any such area'' (a source which fits this 
description is ``subject to BART''); and third, for each source subject 
to BART, identify the best available type and level of control for 
reducing emissions. Section 169A(g)(1) of the CAA requires that states 
must consider the following five factors in making BART determinations: 
(1) The costs of compliance; (2) the energy and non-air quality 
environmental impacts of compliance; (3) any existing pollution control 
technology in use at the source; (4) the remaining useful life of the 
source; and (5) the degree of improvement in visibility which may 
reasonably be anticipated to result from the use of such technology. 
States must address all visibility-impairing pollutants emitted by a 
source in the BART determination process. The most significant 
visibility impairing pollutants are sulfur dioxide (SO2), 
NOX, and particulate matter (PM).
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    \7\ 70 FR 39104; 40 CFR part 51, appendix Y.
    \8\ BART-eligible sources are those sources that have the 
potential to emit 250 tons or more of a visibility-impairing air 
pollutant, were not in operation prior to August 7, 1962, but were 
in existence on August 7, 1977, and whose operations fall within one 
or more of 26 specifically listed source categories. 40 CFR 51.301.
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    A SIP addressing regional haze must include source-specific BART 
emission limits and compliance schedules for each source subject to 
BART. In lieu of requiring source-specific BART controls, states also 
have the flexibility to adopt alternative measures, as long as the 
alternative provides greater reasonable progress towards natural 
visibility conditions than BART (i.e., the alternative must be ``better 
than BART'').\9\ Once a state has made a BART determination, the BART 
controls must be installed and operated as expeditiously as 
practicable, but no later than 5 years after the date of the EPA's 
approval of the final SIP.\10\ In addition to what is required by the 
RHR, general SIP requirements mandate that the SIP include all 
regulatory requirements related to monitoring, recordkeeping and 
reporting for the BART emission limitations. See CAA section 110(a); 40 
CFR part 51, subpart K.
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    \9\ 40 CFR 51.308(e)(2) and (3).
    \10\ CAA section 169A(g)(4); 40 CFR 51.308(e)(1)(iv).
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C. Reasonable Progress Requirements

    In addition to BART requirements, as mentioned previously, each 
regional haze SIP must contain measures as necessary to make reasonable 
progress

[[Page 18250]]

towards the national visibility goals. As part of determining what 
measures are necessary to make reasonable progress, the SIP must first 
identify anthropogenic sources of visibility impairment that are to be 
considered in developing the long-term strategy for addressing 
visibility impairment.\11\ States must then consider the four statutory 
reasonable progress factors in selecting control measures for inclusion 
in the long-term strategy--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 potentially affected 
sources.\12\ Finally, the SIP must establish reasonable progress goals 
(RPGs) for each Class I area within the state for the plan 
implementation period (or ``planning period''), based on the measures 
included in the long-term strategy. If an RPG provides for a slower 
rate of improvement in visibility than the rate needed to attain the 
national goal by 2064, the SIP must demonstrate, based on the four 
reasonable progress factors, why the rate to attain the national goal 
by 2064 is not reasonable and the RPG is reasonable.\13\
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    \11\ 40 CFR 51.308(d)(3)(iv).
    \12\ See CAA section 169A(g)(1), 42 U.S.C. 7491(g)(1) (defining 
the reasonable progress factors); 40 CFR 51.308(d)(1)(i)(A).
    \13\ 40 CFR 51.308(d)(1)(ii).
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D. Consultation With Federal Land Managers (FLMs)

    The RHR requires that a state consult with FLMs before adopting and 
submitting a required SIP or SIP revision.\14\ States must provide FLMs 
an opportunity for in-person consultation at least 60 days before 
holding any public hearing on the SIP. This consultation must include 
the opportunity for the FLMs to discuss their assessment of impairment 
of visibility in any Class I area and to offer recommendations on the 
development of the RPGs and on the development and implementation of 
strategies to address visibility impairment. Further, a state must 
include in its SIP a description of how it addressed any comments 
provided by the FLMs. Finally, a SIP must provide procedures for 
continuing consultation between the state and FLMs regarding the 
implementation of the state's visibility protection program, including 
development and review of SIP revisions, 5-year progress reports, and 
the implementation of other programs having the potential to contribute 
to impairment of visibility in Class I areas.
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    \14\ 40 CFR 51.308(i).
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E. Regulatory and Legal History of the North Dakota Regional Haze SIP

    The Governor of North Dakota originally submitted a Regional Haze 
SIP to the EPA on March 3, 2010, followed by SIP Supplement No. 1 
submitted on July 27, 2010, and SIP Amendment No. 1 submitted on July 
28, 2011. The EPA initially acted on North Dakota's Regional Haze SIP 
on April 6, 2012.\15\ Among other things, the Regional Haze SIP 
included a BART emission limit for NOX for Units 1 and 2 at 
Coal Creek Station of 0.17 lb/MMBtu averaged across the two units (on a 
30-day rolling average) \16\, represented by modified and additional 
separated overfire air (SOFA), close-coupled overfire air (COFA), and 
low NOX burners (LNB) (collectively referred to as 
LNC3+).\17\ When considering the next most stringent control option, 
selective non-catalytic reduction (SNCR; in addition to the existing 
LNC3), North Dakota took into account the potential for ammonia from 
the SNCR to contaminate the fly ash, which is a marketable product sold 
by GRE. Ultimately, the State concluded that ``[b]ecause of the 
potential for lost sales of fly ash, the negative environmental effects 
of having to dispose of the fly ash instead of recycling it into 
concrete, and the very small amount of visibility improvement from the 
use of SNCR, this option is rejected as BART.'' \18\ The State's 
Regional Haze SIP was submitted to meet the requirements of the 
regional haze program for the first planning period of 2008 through 
2018.
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    \15\ 77 FR 20894.
    \16\ Throughout, 30-day rolling average emission limits are 
based on boiler operating days.
    \17\ In the 2013 SIP supplement, modified and additional SOFA, 
COFA, and LNB are referred to as LNC3+. Hereinafter in this proposed 
rule, this combination of controls will also be referred to as 
LNC3+. By contrast, the existing controls, SOFA (unmodified), COFA, 
and LNB are referred to as LNC3.
    \18\ Regional Haze SIP, Appendix D.2, BART Determination for 
Coal Creek Station Units 1 and 2, 12/1/2009, p. 20.
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    During our previous review of North Dakota's NOX BART 
analysis for Coal Creek Station in 2012, the EPA identified an error in 
the costs associated with lost fly ash sales.\19\ At our request, and 
after submitting the Regional Haze SIP in 2010, North Dakota obtained 
additional supporting information from GRE for lost fly ash revenue and 
for the potential cost of fly ash ammonia mitigation. The supporting 
information included an updated cost analysis from GRE noting that the 
correct sales price for fly ash was $5/ton instead of $36/ton. The 
updated analysis included corrected fly ash revenue data and ammonia 
mitigation costs. That analysis, dated June 16, 2011, indicated that 
the cost effectiveness for SNCR at Coal Creek Station Units 1 and 2 
would be $2,318/ton of NOX emissions reductions rather than 
the original estimate of $8,551/ton. Because the State's cost of 
compliance analysis was based upon fundamentally flawed and greatly 
inflated cost estimates regarding lost fly ash revenue, we concluded 
that the SIP submittal failed to properly consider the cost of 
compliance in any meaningful sense as required by 40 CFR 
51.308(e)(1)(ii)(A). We also concluded that GRE could avoid 
contaminating the fly ash by proper management of the ammonia injection 
rate; and thereby avoid losing fly ash sales altogether. Therefore, we 
disapproved the NOX BART determination for the Coal Creek 
Station.\20\
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    \19\ 76 FR 58603; 77 FR 20921.
    \20\ 77 FR 20894 (Apr. 6, 2012).
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    In the same action, we promulgated a FIP that included a 
NOX BART emission limit for Units 1 and 2 at the Coal Creek 
Station of 0.13 lb/MMBtu averaged across the two units (30-day rolling 
average), which GRE could meet by installing SNCR plus LNC3+.\21\ This 
emission limit was based on the EPA's independent BART analysis, 
including the updated costs of compliance.
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    \21\ The FIP also included: A reasonable progress determination 
and NOX emission limit for Antelope Valley Station Units 
1 and 2 of 0.17 lb/MMBtu that applies singly to each of these units 
on a 30 -day rolling average, and a requirement that the owner/
operator meet the limit as expeditiously as practicable, but no 
later than July 31, 2018; monitoring, record-keeping, and reporting 
requirements for the Coal Creek Station and Antelope Valley Station 
units to ensure compliance with the emission limitations; RPGs 
consistent with the approved SIP emission limits approved and the 
final FIP limits; and LTS elements that reflect the other aspects of 
the finalized FIP. Please refer to the EPA's final FIP rule for 
further information on the FIP requirements. 77 FR 20894 (Apr. 6, 
2012).
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    Subsequently, several petitioners challenged various aspects of the 
EPA's final rule in the Eighth Circuit Court of Appeals. Pertinent to 
this proposal, the State and GRE, the owner of the Coal Creek Station, 
challenged the EPA's disapproval of the State's determination that 
LNC3+ with an emission limit of 0.17lb/MMBtu averaged across the two 
units (30-day rolling average) is BART for Coal Creek Station. These 
same petitioners also challenged the EPA's determination that SNCR plus 
LNC3+ with an emission limit of 0.13lb/MMBtu averaged across the two 
units (30-day rolling average) is BART for the Coal Creek Station.
    On January 2, 2013, North Dakota submitted Supplement No. 2 to the 
SIP, which was primarily intended to correct

[[Page 18251]]

the error in the costs of compliance for SNCR plus LNC3+ related to 
lost fly ash sales. SIP Supplement No. 2 includes a revised five-factor 
BART evaluation for Coal Creek Station that largely replaces the five-
factor evaluation contained in the Regional Haze SIP that was submitted 
in 2010 and 2011. SIP Supplement No. 2 affirms the State's earlier BART 
determination of 0.17 lb/MMBtu averaged across the two units (30-day 
rolling average) to be met with LNC3+. SIP Supplement No. 2 was 
submitted after the EPA took final action on the Regional Haze SIP in 
2012, and is the focus of this proposed rule.
    On September 23, 2013, the Eighth Circuit concluded that the EPA 
properly disapproved portions of the State's Regional Haze SIP, 
including the State's NOX BART determination for the Coal 
Creek Station.\22\ In particular, the court ruled that the EPA's role 
in reviewing the State's SIP was not merely ministerial, and that the 
EPA acted properly in disapproving the State's NOX BART 
determination for the Coal Creek Station that was based on erroneous 
costs of compliance. However, the court vacated the EPA's FIP 
promulgating an emission limit of 0.13 lb/MMbtu (30-day rolling 
average), holding that the EPA had failed to consider existing 
pollution control technology \23\ in use at the Coal Creek Station. 
More specifically, the court found that the EPA's refusal to consider 
DryFining\TM\ as an existing pollution control because it had been 
voluntarily installed after the regional haze baseline date was 
arbitrary and capricious. DryFining\TM\ is an innovative technology 
developed by GRE that reduces moisture and refines lignite coal, 
increasing the efficiency and performance of the fuel while reducing 
emissions.
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    \22\ North Dakota v. United States EPA, 730 F.3d 750 (8th Cir. 
2013), cert. denied, 134 S. Ct. 2662 (2014).
    \23\ Pursuant to Section 169A(g)(1) of the CAA, ``any existing 
pollution control technology in use at the source'' is one of the 
five factors that must be considered when making a BART 
determination.
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II. Coal Creek Station--NOX BART Determination

    Coal Creek Station is a mine-mouth electrical generating plant, 
consisting primarily of two steam generators (each with a 550 MW 
capacity) and associated coal and ash handling systems. The units are 
identical Combustion Engineering boilers that tangentially fire 
pulverized lignite coal. Since at least 1999, both units have been 
equipped with the following combustion controls: SOFA, COFA, and LNB. 
These combustion controls are collectively referred to as LNC3. In 
addition, DryFining\TM\ was fully installed on both units by mid-2010.
    The State analyzed the impact of Coal Creek on visibility in Class 
I areas, and found that the source was subject to BART 
requirements.\24\
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    \24\ Regional Haze SIP, Section 7.3.1; 76 FR 58553.
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A. North Dakota's NOX BART Determination

    To address the EPA's disapproval of the NOX BART 
determination for Coal Creek Station, North Dakota submitted SIP 
Supplement No. 2 to the EPA on January 2, 2013. Because the two Coal 
Creek boilers are identical, the State performed a single BART analysis 
that is relevant to both units. The State's supplemental evaluation is 
provided in Appendix B.2.1 of SIP Supplement No. 2. The supplemental 
evaluation is informed by GRE's refined BART analysis of April 5, 2012, 
updated June 6, 2012, and found in Appendix C.2.1 of SIP Supplement No. 
2.
    The State considered only LNC3+, SNCR (with existing LNC3), and 
SNCR plus LNC3+ as technically feasible control options. Both the State 
and the EPA have previously determined that selective catalytic 
reduction and low temperature oxidation are not required as BART.\25\ 
In addition, because the State found that ammonia slip from SNCR has 
the potential to negatively impact fly ash sales, it evaluated three 
different scenarios for the SNCR and SNCR plus LNC3+ control options: 
0% lost fly ash sales, 30% lost fly ash sales, and 100% lost fly ash 
sales. The State determined a control effectiveness for LNC3+ of 23.9%, 
for SNCR of 24.9% (with existing LNC3), and for SNCR plus LNC3+ of 
39.3%.
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    \25\ Regional Haze SIP, Appendix B.2; 76 FR 58622-23.
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    A summary of the State's NOX BART analysis is provided 
in Table 1. Note that costs are provided in 2011 dollars.

                                     Table 1--Summary of Coal Creek NOX BART Analysis for Unit 1 and Unit 2 Boilers
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                                                                                              Annual                        Incremental     Visibility
                                                              Control         Annual         emission          Cost            cost           benefit
                   Control option \a\                     efficiency (%)   emission rate    reductions     effectiveness   effectiveness    (delta dv)
                                                                            (lb/MMBtu)       (tons/yr)        ($/ton)       ($/ton) \b\        \c,d\
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                                                                     SNCR plus LNC3+
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100% Lost Fly Ash Sales.................................            39.3           0.122           1,998           4,444          10,350           1.623
30% Lost Fly Ash Sales..................................            39.3           0.122           1,998           3,305           7,449           1.623
0% Lost Fly Ash Sales...................................            39.3           0.122           1,998           2,195           4,619           1.623
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                                                                 SNCR with existing LNC3
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100% Lost Fly Ash Sales.................................            24.9           0.151           1,265           7,194         163,471           1.529
30% Lost Fly Ash Sales..................................            24.9           0.151           1,265           5,396         118,863           1.529
0% Lost Fly Ash Sales...................................            24.9           0.151           1,265           3,643          75,373           1.529
                                                         -----------------------------------------------------------------------------------------------
LNC3+...................................................            23.9           0.153           1,214             629              NA           1.463
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 \a\ DryFining\TM\ is common to each of the control options.
 \b\ The incremental costs listed for SNCR plus LNC3+ are for between SNCR plus LNC3+ and LNC3+.
 \c\ The visibility modeling that GRE performed for Coal Creek Units 1 and 2 included SO2 controls in addition to the noted NOX control. Accordingly,
  the modeling results summarized above reflect the chosen SO2 BART control, scrubber modifications, in addition to the noted NOX control option. Thus,
  these values do not reflect the distinct visibility benefit from each NOX control option, but do provide the incremental benefit between the NOX
  control options.
 \d\ The visibility improvement described in this table represents the change in the maximum 98th percentile impact over the modeled 3-year
  meteorological period (2001-2003) at the highest impacted Class I area, Theodore Roosevelt, relative to a pre-controlled baseline. Refer to the
  spreadsheet created by EPA titled ``CALPUFF Modeling Results from GRE Supplemental Analysis of 4-5-2012.xlsx''.


[[Page 18252]]

    The State considered each of the five statutory BART factors when 
making its NOX BART determination for Coal Creek Station as 
described below.
Costs of Compliance
    When the State began development of its regional haze program in 
2006, it established costs of compliance thresholds for both cost 
effectiveness and incremental cost effectiveness above which costs are 
considered excessive.\26\ When adjusted to 2011 dollars, the threshold 
for cost effectiveness is $4,100/ton, while the threshold for 
incremental cost effectiveness is $7,300/ton. The cost effectiveness of 
LNC3+, $629/ton, is very reasonable by this standard.\27\ The State 
found that SNCR, with the existing LNC3 combustion controls, is clearly 
an inferior option to LNC3+ because this control option presents only 
marginally more control effectiveness at much higher cost per ton 
values in comparison to LNC3+. In addition, the State found that the 
incremental cost between these two options to be excessive regardless 
of what percentage of fly ash sales are lost. For the remaining control 
option, SNCR plus LNC3+, the State found that whether the costs of 
compliance were reasonable depends on the percentage of fly ash sales 
that may be lost. If no fly ash sales are lost, the State found that 
neither the cost effectiveness, $2,195/ton, or incremental cost 
effectiveness relative to LNC3+, $4,619/ton, would be deemed excessive 
when using the State's criteria. However, if 30% of the fly ash sales 
are lost, the State found that the incremental cost effectiveness 
relative to LNC3+ of $7,449/ton exceeds the relevant threshold. If all 
of the fly ash sales are lost, then the State found that both 
thresholds are exceeded. Moreover, if none of the fly ash can be sold, 
the State found that $31 million of existing fly ash handling equipment 
would be rendered useless with likely no opportunity to retrieve the 
resources invested. The State concluded that it is likely that some fly 
ash sales will be lost. However, because it is difficult to know 
precisely how much of the fly ash sales will be lost, the State found 
that the costs of compliance are uncertain.
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    \26\ Refer to Appendix E of the Regional Haze SIP.
    \27\ Incremental cost effectiveness for LNC3+ is not calculable 
because it is the least effective control option considered.
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Energy and Non-Air Quality Environmental Impacts
    When evaluating the environmental and non-air quality impacts, the 
State emphasized that recycling the fly ash and keeping this material 
out of a landfill is important. The State expressed concerns that the 
use of SNCR may prevent the recycling of fly ash.
Any Existing Pollution Controls in Use at the Source
    Regarding any existing pollution control in use at the source, the 
State noted that SOFA, COFA, and LNB (collectively referred to as LNC3) 
had been in place at the facility for some time, until combustion 
controls on Unit 2 were upgraded to LNC3+ in 2007. Unit 1 has not been 
similarly modified. Also, both units were equipped with DryFining\TM\ 
in 2010. Unlike in the original BART evaluation, the State's 2013 
supplemental BART evaluation recognizes the NOX emission 
reduction that can be attributed to DryFining\TM\. When North Dakota 
submitted the Regional Haze SIP in 2010, it based the BART analysis on 
a historical baseline emission rate of 0.22 lb/MMBtu (annual average, 
2000-2004) that reflected NOX reductions achieved with the 
existing combustion controls (LNC3). At that time, although it had been 
installed, the effect of DryFining\TM\ on NOX emissions was 
uncertain. Since then, the State has found that the technology can 
reduce NOX emissions by about 0.02 lb/MMBtu. The State has 
also determined that, because LNC3+ had been installed on Unit 2 for 
the purpose of meeting BART, it was inappropriate for the baseline to 
reflect the additional reduction achieved by LNC3+ relative to LNC3. 
Accordingly, the State used a revised baseline emission rate of 0.201 
lb/MMBtu in SIP Supplement No. 2 that reflects the use of both LNC3 and 
DryFining\TM\.
Remaining Useful Life of the Source
    The State noted that the source is expected to have a remaining 
useful life of at least 20 years.\28\ The State has used this value in 
the calculations of cost effectiveness. Otherwise, the remaining useful 
life did not have an impact on the State's selection of NOX 
BART.
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    \28\ Regional Haze SIP, Appendix D.2, BART Determination for 
Coal Creek Station Units 1 and 2, 12/1/2009, p. 12.
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Degree of Improvement in Visibility
    The State evaluated visibility impacts (and improvement) at the two 
affected Class I areas: Theodore Roosevelt National Park (NP) and 
Lostwood Wilderness Area. The visibility impacts were provided in GRE's 
April 5, 2012, submittal to the State, and were based on CALPUFF 
modeling.\29\ At the most impacted Class I area, Theodore Roosevelt NP, 
the State found that the incremental visibility improvement for SNCR 
plus LNC3+ versus LNC3+ is 0.106 dv for the 98th percentile, and this 
improvement was considered negligible by the State. As such, the State 
concluded that the visibility improvement does not warrant the 
selection of SNCR plus LNC3+ as BART.\30\ Finally, because the costs of 
compliance cannot be determined precisely due to the uncertainty 
surrounding lost fly ash sales, the State chose to weigh the visibility 
benefits heavily in its BART determination.
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    \29\ Refer to Appendix A.1 of the Regional Haze SIP regarding 
the CALPUFF modeling methodology.
    \30\ The State calculated the incremental visibility benefit 
between SNCR plus LNC3+ and LNC3+ (both with scrubber upgrades for 
SO2) as the difference between the respective modeled 
visibility impacts, or 1.623 dv-1.529 dv = 0.106 dv.
---------------------------------------------------------------------------

    After evaluating the five BART factors, and for the reasons stated 
above, North Dakota determined that BART should be based on the 
installation of LNC3+. The State's BART analysis used an annual 
emission rate for LNC3+ of 0.153 lb/MMBtu, reflecting the performance 
demonstrated at Unit 2. However, the State noted that the shorter 
averaging period of the BART emission limit, 30 days, requires a 
slightly higher value.\31\ Accordingly, the State established an 
emission limit of 0.17 lb/MMBtu averaged across the two units (30-day 
rolling average). The State required that compliance with the emission 
limit be as expeditiously as practicable but in no event later than 5 
years after the EPA approves the BART requirements for Coal Creek 
Station. Further, the State required that compliance be demonstrated 
within 180 days of initial startup of the equipment required to meet 
the BART limits, but no later than 5 years after the EPA approves the 
BART requirements for the Coal Creek Station.
---------------------------------------------------------------------------

    \31\ North Dakota found that 30-day rolling average emission 
rates are expected to be at least 5-15% higher than the annual 
average emission rate. For example, see Appendix B.1 of SIP, page 
16.
---------------------------------------------------------------------------

B. EPA's Evaluation of North Dakota's NOX BART Determination

    In our evaluation of the State's NOX BART determination 
for Coal Creek Station, we seek to address two deficiencies that relate 
to our disapproval of the State's 2010 NOX BART 
determination and resultant FIP. First, we intend to revisit the 
State's NOX BART determination in light of the fact that SIP 
Supplement No. 2 addresses the error related to lost fly ash sales in 
the estimation of the costs of compliance. Second, we intend to re-
evaluate the State's BART determination for Coal Creek in consideration 
the

[[Page 18253]]

Eighth Circuit's decision as it relates to any existing pollution 
controls.
    As described earlier, in 2012, the EPA disapproved the State's BART 
determination in part because of an error in the sales price for fly 
ash that affected the State's consideration of the costs of compliance. 
GRE used a sales price of $36/ton for fly ash in calculating the cost 
effectiveness for SNCR. The State in turn relied on these values in 
support of its 2010 BART determination. In 2011, GRE indicated the 
correct sales price for fly ash was $5/ton instead of $36/ton. 
Subsequently, when commenting on EPA's 2011 proposed rule,\32\ GRE 
indicated that, rather than $5/ton, the lost fly ash sales revenue 
should be based on the 2010 average per ton freight on board (FOB) 
price of $41.00, with 30% ($12.30/ton) of the sale price going to GRE 
as revenue. The remainder of the revenue, $28.79/ton, goes to 
Headwaters Resources, Inc. (HRI), GRE's partner in the sale and 
distribution of fly ash. In our 2012 final rule, we responded that we 
were not convinced that such an increase (over the $5/ton price) would 
be appropriate because GRE did not provide any detail on the basis for 
the increased price. However, in GRE's revised BART analysis of April 
5, 2012, the company clarified that $5/ton figure represented what GRE 
received as a portion of the FOB price before December of 2011. GRE 
also reaffirmed the then-current ash sales contract (as of April 2012) 
required payments to GRE that total 30% of the price. GRE points out 
that HRI has ``invested heavily into fly ash sales infrastructure 
including terminals and storage facilities, conveying equipment, scales 
and train car shuttles'' and that HRI ``financed GRE's portion of the 
infrastructure through a per ton payment on fly ash sales.'' \33\ 
Accordingly, we find that the revised cost effectiveness value for SNCR 
plus LNC3+, as well as the incremental cost effectiveness value of SNCR 
plus LNC3+ compared to LNC3+, in SIP Supplement No. 2 are reliable 
because they are based on an established contractual sales price for 
fly ash.
---------------------------------------------------------------------------

    \32\ 76 FR 58570 (Sep. 21, 2011).
    \33\ GRE's refined BART analysis of April 5, 2012, p. 17.
---------------------------------------------------------------------------

    In the 2011 proposed FIP, the EPA agreed that use of SNCR might 
result in lost ash sales and the need to landfill fly ash due to 
ammonia contamination. These additional costs were included in our cost 
analysis supporting the proposed FIP. However, we also invited comment 
on the assumption that use of SNCR would result in lost fly ash sales 
and on the availability of ammonia mitigation techniques.\34\ We 
received responsive comments on both sides of the issue. Ultimately, we 
concluded that it is possible to control ammonia slip from SNCR to 
within the range of 2 ppm or less, and that it is widely accepted that 
ammonia at this level does not impact the potential sales and use of 
fly ash in concrete. Accordingly, we concluded that charges for lost 
fly ash sales should not be applied to the SNCR cost analysis and that 
SNCR can be successfully deployed at the Coal Creek Station in a cost-
effective manner. Specifically, we calculated a cost effectiveness of 
$1,313/ton.\35\ In consideration of the costs of compliance, and the 
remaining BART factors, we concluded that BART is represented by SNCR 
plus LNC3+.
---------------------------------------------------------------------------

    \34\ 76 FR 58620.
    \35\ 77 FR 20925.
---------------------------------------------------------------------------

    In its SIP Supplement No. 2, North Dakota contested the lost ash 
sales analysis reflected in the EPA's final rule, citing studies that, 
according to the State, supported its assertions. North Dakota 
contended that ``EPA's assertion that no ash sales will be lost is 
speculative.'' \36\
---------------------------------------------------------------------------

    \36\ Supplemental Evaluation of NOX BART 
Determination for Coal Creek Station Units 1 and 2, at 10-11.
---------------------------------------------------------------------------

    Given the importance of assumptions about lost fly ash sales in 
assessing the costs of compliance, and in consideration of more than 
five years having passed since we originally established BART for the 
Coal Creek Station, it is appropriate that we investigate and analyze 
this issue further. Accordingly, we once again invite comment in 
relation to the following: (1) Whether ammonia slip from the SNCR can 
be controlled to levels sufficient enough to prevent unacceptable 
ammonia contamination of the fly ash; (2) what levels of ammonia 
contamination are acceptable to fly ash marketers and end-users; and 
(3) availability, applicability, and cost of applying ammonia 
mitigation techniques to fly ash derived from lignite coal.
    On the matter of any existing controls, the State's BART evaluation 
now relies on a baseline NOX emission rate of 0.201 lb/MMBtu 
(annual) that reflects the use of DryFining\TM\. As noted earlier, this 
baseline emission rate incorporates the 0.02 lb/MMBtu reduction that is 
achieved with the technology. As a result, the State's BART analysis 
reasonably considers ``any existing pollution control technology in use 
at the source,'' consistent with the Eighth Circuit decision.\37\
---------------------------------------------------------------------------

    \37\ 77 FR at 20925; see also North Dakota, 730 F.3d at 764.
---------------------------------------------------------------------------

    With these two issues appropriately addressed by the State's SIP 
Supplement No. 2, and because we have not identified any further 
deficiencies, we conclude that North Dakota has reasonably considered 
the five statutory BART factors in making its BART determination for 
the Coal Creek Station in accordance with the CAA and RHR. Therefore, 
we propose to approve the State's NOX BART emission limit of 
0.17 lb/MMBtu averaged across the two units (30-day rolling average), 
which is based on LNC3+.

III. Coordination With FLMs

    Theodore Roosevelt National Park is managed by the National Park 
Service (NPS), while the Lostwood Wilderness Area is managed by the 
U.S. Fish and Wildlife Service (FWS). As described in section I.D of 
this proposed rule, the Regional Haze Rule grants the FLMs a special 
role in the review of regional haze SIPs. Under 40 CFR 51.308(i)(2), 
North Dakota was obligated to provide the FLMs with an opportunity for 
consultation in development of the State's proposed SIP revisions. By 
written correspondence dated August 8, 2012, North Dakota provided the 
FLMs the opportunity to comment on the draft SIP Supplement No. 2.\38\ 
The FWS submitted comments to North Dakota in a letter dated October 
29, 2012, and the State responded to those comments in its response to 
public comments.\39\ No other FLMs commented. The EPA considers the 
State's obligation to consult with the FLMs on the SIP revision to be 
fulfilled.
---------------------------------------------------------------------------

    \38\ Refer to Appendix J.3.4 of the SIP Supplement.
    \39\ Refer to Appendix F.8.1 of the SIP Supplement.
---------------------------------------------------------------------------

IV. The EPA's Proposed Action

    In this action, the EPA is proposing to approve certain portions of 
North Dakota's Regional Haze SIP. Specifically, the EPA is proposing to 
approve the NOX BART determination for the Coal Creek 
Station, included in SIP Supplement No. 2, of 0.17 lb/MMBtu averaged 
across the two units (30-day rolling average). Refer to the final 
action of April 6, 2012, regarding EPA's disapproval or approval of 
other elements of North Dakota's Regional Haze SIP.
    In addition, the EPA plans to remove from the Code of Federal 
Regulations the FIP requirements for Coal Creek Station that the Eighth 
Circuit vacated in the North Dakota decision and are therefore not 
enforceable as a matter of

[[Page 18254]]

law. We are not inviting public comment on this portion of our action.

V. Incorporation by Reference

    In this rule, the 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, the EPA is proposing to incorporate by 
reference the amendments described in section II. The EPA has made, and 
will continue to make, these materials generally available through 
www.regulations.gov and at the EPA Region 8 Office (please contact the 
person identified in the For Further Information Contact section of 
this preamble for more information).

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the 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 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 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because this action does not involve technical standards; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not proposed to apply on any Indian 
reservation land or in any other area where the 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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Sulfur oxides.

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

    Dated: April 13, 2018.
Douglas Benevento,
Regional Administrator, Region 8.

    40 CFR part 52 is proposed to be amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart JJ--North Dakota

0
2. Section 52.1820 in paragraph (d) is amended by revising the table 
entry ``PTC10005'' under the centered heading ``Coal Creek Station 
Units 1 and 2'' to read as follows:


Sec.  52.1820   Identification of plan.

* * * * *
    (d) * * *

----------------------------------------------------------------------------------------------------------------
                                                 State       EPA effective      Final rule
        Rule No.             Rule title     effective date       date         citation/date         Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                        Coal Creek Station Units 1 and 2.
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
PTC10005...............  Air pollution            12/20/12         5/29/18  [Insert Federal    Only: NOX BART
                          control permit                                     Register           emissions limits
                          to construct for                                   citation], 4/26/   for Units 1 and
                          best available                                     18.                2 and
                          retrofit                                                              corresponding
                          technology                                                            monitoring,
                          (BART).                                                               recordkeeping,
                                                                                                and reporting
                                                                                                requirements.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
0
3. Section 52.1825 is amended by revising paragraphs (a), (c)(1) and 
(d) to read as follows:


Sec.  52.1825  Federal implementation plan for regional haze.

    (a) Applicability. This section applies to each owner and operator 
of the following coal-fired electric generating units (EGUs) in the 
State of North Dakota: Antelope Valley Station, Units 1 and 2.
* * * * *
    (c) Emissions limitations. (1) The owners/operators subject to this 
section shall not emit or cause to be emitted NOX in excess 
of the following

[[Page 18255]]

limitations, in pounds per million British thermal units (lb/MMBtu), 
averaged over a rolling 30-day period:

------------------------------------------------------------------------
                                                           NOX Emission
                                                            limit  (lb/
                       Source name                            MMBtu)
 
------------------------------------------------------------------------
Antelope Valley Station, Unit 1.........................            0.17
Antelope Valley Station, Unit 2.........................            0.17
------------------------------------------------------------------------

    (2) * * *
    (d) Compliance date. The owners and operators of Antelope Valley 
Station shall comply with the emissions limitations and other 
requirements of this section as expeditiously as practicable, but no 
later than July 31, 2018, unless otherwise indicated in specific 
paragraphs.
* * * * *
[FR Doc. 2018-08623 Filed 4-25-18; 8:45 am]
 BILLING CODE 6560-50-P


