[Federal Register Volume 86, Number 47 (Friday, March 12, 2021)]
[Proposed Rules]
[Pages 14055-14061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04402]



[[Page 14055]]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0406; FRL-10020-82-Region 8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
State of North Dakota on August 3, 2020, addressing regional haze. 
Specifically, EPA is proposing to approve Amendment No. 2 to the North 
Dakota SIP for Regional Haze to satisfy certain requirements for the 
first implementation period of the Clean Air Act's (CAA) regional haze 
program. Amendment No. 2 adopts the same regional haze requirements for 
the Antelope Valley Station promulgated by EPA in our 2012 Federal 
Implementation Plan (FIP). In conjunction with this proposed approval 
of Amendment No. 2, we also propose to withdraw the portions of our 
2012 FIP that apply to the Antelope Valley Station. EPA is proposing 
this action pursuant to sections 110 and 169A of the CAA.

DATES: Comments: Written comments must be received on or before May 11, 
2021. Public hearing: If anyone contacts us requesting a public hearing 
on or before March 29, 2021, we will hold a hearing. Additional 
information about the hearing, if requested, will be published in a 
subsequent Federal Register document. Contact Aaron Worstell at (303) 
312-6073, or at worstell.aaron@epa.gov, to request a hearing or to 
determine if a hearing will be held.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2010-0406, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
www.regulations.gov. EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e., on the web, cloud, or other file sharing system). For 
additional submission methods, the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available electronically in 
www.regulations.gov. To reduce the risk of COVID-19 transmission, for 
this action we do not plan to offer hard copy review of the docket. 
Please email or call the person listed in the FOR FURTHER INFORMATION 
CONTACT section if you need to make alternative arrangements for access 
to the docket.

FOR FURTHER INFORMATION CONTACT: Aaron Worstell, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, 
Colorado, 80202-1129, (303) 312-6073, worstell.aaron@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. Background
    A. Requirements of the Clean Air Act and EPA's Regional Haze 
Rule
    B. Best Available Retrofit Technology
    C. Long-Term Strategy and Reasonable Progress Requirements
    D. Monitoring, Recordkeeping, and Reporting
    E. Consultation With Federal Land Managers
    F. Clean Air Act Section 110(l)
    G. Regulatory and Legal History of the North Dakota Regional 
Haze State Implementation Plan
II. EPA's Evaluation of Amendment No. 2 to the North Dakota Regional 
Haze State Implementation Plan
    A. Reasonable Progress Requirements for the Antelope Valley 
Station
    B. Consultation With Federal Land Managers
III. EPA's Proposed Action
    A. Amendment No. 2 to the North Dakota Regional Haze State 
Implementation Plan
    B. Federal Implementation Plan Withdrawal
    C. Clean Air Section 110(l)
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. Background

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

    In CAA section 169A, Congress created a program for protecting 
visibility in 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\
---------------------------------------------------------------------------

    \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.''
---------------------------------------------------------------------------

    EPA promulgated a rule to address regional haze on July 1, 1999.\2\ 
The Regional Haze Rule revised the existing

[[Page 14056]]

visibility regulations \3\ 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 EPA's visibility protection 
regulations at 40 CFR 51.300-51.309. EPA most recently revised the 
Regional Haze Rule on January 10, 2017.\4\
---------------------------------------------------------------------------

    \2\ 64 FR 35714 (July 1, 1999) (amending 40 CFR part 51, subpart 
P).
    \3\ EPA had previously promulgated regulations to address 
visibility impairment in Class I areas that is ``reasonably 
attributable'' to a single source or small group of sources, i.e., 
reasonably attributable visibility impairment (RAVI). 45 FR 80084, 
80084 (December 2, 1980).
    \4\ 82 FR 3078 (January 10, 2017). Under the revised Regional 
Haze Rule, the requirements 40 CFR 51.308(d) and (e) apply to first 
implementation period SIP submissions and 51.308(f) applies to 
submissions for the second and subsequent implementation periods. 82 
FR 3087; see also 81 FR 26942, 26952 (May 4, 2016).
---------------------------------------------------------------------------

    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 EPA for approval. Once approved, a 
SIP is enforceable by 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 FIP to fill 
this regulatory gap, unless the state corrects the deficiency.\6\
---------------------------------------------------------------------------

    \5\ 42 U.S.C. 7410(a), 7491, and 7492(a).
    \6\ 42 U.S.C. 7410(c)(1).
---------------------------------------------------------------------------

B. Best Available Retrofit Technology

    Section 169A of the CAA directs 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 requires 
state 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'' (BART) as determined 
by the states. Under the Regional Haze Rule, 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.\7\
---------------------------------------------------------------------------

    \7\ 40 CFR 51.308(e). 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.
    EPA designed the Guidelines for BART Determinations Under the 
Regional Haze Rule (Guidelines) ``to help States and others (1) 
identify those sources that must comply with the BART requirement, 
and (2) determine the level of control technology that represents 
BART for each source.'' 40 CFR part 51, appendix Y, section I.A. 
Section II of the Guidelines describes the four steps to identify 
BART sources, and section III explains how to identify BART sources 
(i.e., sources that are ``subject to BART'').
---------------------------------------------------------------------------

    Rather than 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'').\8\
---------------------------------------------------------------------------

    \8\ 40 CFR 51.308(e)(2) and (3).
---------------------------------------------------------------------------

C. Long-Term Strategy and Reasonable Progress Requirements

    In addition to the BART requirements, the CAA's visibility 
protection provisions also require that states' regional haze SIPs 
contain a ``long-term (ten to fifteen years) strategy for making 
reasonable progress toward meeting the national goal. . ..'' \9\ The 
long-term strategy must address regional haze visibility impairment for 
each mandatory Class I area within the state and for each mandatory 
Class I area located outside the state that may be affected by 
emissions from the state. It must include the enforceable emission 
limitations, compliance schedules, and other measures necessary to 
achieve the reasonable progress goals.\10\ The reasonable progress 
goals, in turn, are calculated for each Class I area based on the 
control measures states have selected by analyzing the four statutory 
``reasonable progress'' factors, which are ``the costs of compliance, 
the time necessary for compliance, the energy and non-air quality 
environmental impacts of compliance, and the remaining useful life of 
any existing source subject to such requirement.'' \11\ Thus, the four 
reasonable progress factors are considered by a state in setting the 
reasonable progress goal by virtue of the state having first considered 
them, and certain other factors listed in Sec.  51.308(d)(3) of the 
Regional Haze Rule, when deciding what controls are to be included in 
the long-term strategy. Then, the numerical levels of the reasonable 
progress goals are the predicted visibility outcome of implementing the 
long-term strategy in addition to ongoing pollution control programs 
stemming from other CAA requirements.
---------------------------------------------------------------------------

    \9\ 42 U.S.C. 7491(b)(2)(B).
    \10\ 40 CFR 51.308(d)(3).
    \11\ 42 U.S.C. 7491(g)(1); 40 CFR 51.308(d)(1)(i).
---------------------------------------------------------------------------

    Unlike BART determinations, which are required only for the first 
regional haze planning period SIPs,\12\ states are required to submit 
updates to their long-term strategies, including updated reasonable 
progress analyses and reasonable progress goals, in the form of SIP 
revisions on July 31, 2021, and at specific intervals thereafter.\13\ 
In addition, each state must periodically submit a report to EPA at 
five-year intervals beginning five years after the submission of the 
initial regional haze SIP, evaluating the state's progress towards 
meeting the reasonable progress goals for each Class I area within the 
state.\14\
---------------------------------------------------------------------------

    \12\ Under the Regional Haze Rule, SIPs are due for each 
regional haze planning period, or implementation period. The terms 
``planning period'' and ``implementation period'' are used 
interchangeably in this document.
    \13\ 40 CFR 51.308(f). The deadline for the 2018 SIP revision 
was moved to 2021. 82 FR 3078 (January 10, 2017); see also 40 CFR 
51.308(f). Following the 2021 SIP revision deadline, the next SIP 
revision is due in 2028. 40 CFR 51.308(f).
    \14\ Id. Sec.  51.308(g); Sec.  51.309(d)(10).
---------------------------------------------------------------------------

D. Monitoring, Recordkeeping, and Reporting

    CAA section 110(a)(2) requires that SIPs, including regional haze 
SIPs, contain monitoring, record keeping, and reporting provisions 
sufficient to ensure emission limits are practically enforceable.\15\ 
Accordingly, 40 CFR part 51, subpart K, Source Surveillance, requires 
the SIP to provide for monitoring the status of compliance with the 
regulations in it, including ``[p]eriodic testing and inspection of 
stationary sources,'' \16\ and ``legally enforceable procedures'' for 
recordkeeping and reporting.\17\ Furthermore, 40 CFR part 51, appendix 
V, Criteria for Determining the Completeness of Plan Submissions, 
states in section 2.2 that complete SIPs contain: ``(g) Evidence that 
the plan contains emission limitations, work practice standards and 
recordkeeping/reporting requirements, where necessary, to ensure 
emission levels''; and ``(h) Compliance/enforcement strategies, 
including how compliance will be determined in practice.''
---------------------------------------------------------------------------

    \15\ 42 U.S.C. 7410(a)(2)(A), (C), and (F).
    \16\ 40 CFR 51.212(a).
    \17\ Id. Sec.  51.211.
---------------------------------------------------------------------------

E. Consultation With Federal Land Managers

    The Regional Haze Rule requires that a state consult with Federal 
Land Managers (FLMs) before adopting and submitting a required SIP or 
SIP revision. Under 40 CFR 51.308(i)(2), a

[[Page 14057]]

state must provide an opportunity for consultation no less than 60 days 
prior to holding any public hearing or other public comment opportunity 
on a SIP or SIP revision for regional haze. Further, when considering a 
SIP or SIP revision, a state must include in its proposal a description 
of how it addressed any comments provided by the FLMs.\18\
---------------------------------------------------------------------------

    \18\ 40 CFR 51.308(i).
---------------------------------------------------------------------------

F. Clean Air Act Section 110(l)

    Under CAA section 110(l), EPA cannot approve a plan revision ``if 
the revision would interfere with any applicable requirement concerning 
attainment and reasonable further progress (as defined in section 7501 
of this title), or any other applicable requirement of this chapter.'' 
\19\ CAA section 110(l) applies to all requirements of the CAA and to 
all areas of the country, whether attainment, nonattainment, 
unclassifiable or maintenance for one or more of the six criteria 
pollutants. EPA interprets section 110(l) as applying to all National 
Ambient Air Quality Standards (NAAQS) that are in effect, including 
those for which SIP submissions have not been made.\20\ However, the 
level of rigor needed for any CAA section 110(l) demonstration will 
vary depending on the nature and circumstances of the revision.
---------------------------------------------------------------------------

    \19\ 42 U.S.C. 7410(l). Note that ``reasonable further 
progress'' as used in CAA section 110(l) is a reference to that term 
as defined in section 301(a) (i.e., 42 U.S.C. 7501(a)), and as such 
means reductions required to attain the National Ambient Air Quality 
Standards (NAAQS) set for criteria pollutants under CAA section 109. 
This term as used in section 110(l) (and defined in section 301(a)) 
is not synonymous with ``reasonable progress'' as that term is used 
in the regional haze program. Instead, section 110(l) provides that 
EPA cannot approve plan revisions that interfere with regional haze 
requirements (including reasonable progress requirements) insofar as 
they are ``other applicable requirement[s]'' of the CAA.
    \20\ In general, a section 110(l) demonstration should address 
all pollutants whose emissions and/or ambient concentrations would 
change as a result of a plan revision.
---------------------------------------------------------------------------

G. Regulatory and Legal History of the North Dakota Regional Haze State 
Implementation Plan

    The Governor of North Dakota originally submitted a Regional Haze 
SIP to 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 
(collectively, the ``2010 Regional Haze SIP''). The State's 2010 
Regional Haze SIP was submitted to meet the requirements of the 
regional haze program for the first regional haze planning period. 
Among other things, the 2010 Regional Haze SIP included North Dakota's 
determination under the reasonable progress requirements found at 40 
CFR 51.308(d)(1) that no additional nitrogen oxide (NOX) 
emissions controls were warranted at Antelope Valley Station Units 1 
and 2.
    On April 6, 2012, EPA promulgated a final rule titled, ``Approval 
and Promulgation of Implementation Plans; North Dakota; Regional Haze 
State Implementation Plan; Federal Implementation Plan for Interstate 
Transport of Pollution Affecting Visibility and Regional Haze; Final 
Rule,'' (2012 Final Rule).\21\ The 2012 Final Rule approved in part and 
disapproved in part the 2010 Regional Haze SIP. As relevant here, EPA 
disapproved North Dakota's reasonable progress determination that no 
additional NOX emissions controls were warranted at Antelope 
Valley Station.
---------------------------------------------------------------------------

    \21\ 77 FR 20894 (April 6, 2012).
---------------------------------------------------------------------------

    Concurrent with disapproving North Dakota's NOX 
reasonable progress determination for Antelope Valley Station, EPA 
promulgated a FIP in the 2012 Final Rule that imposed a NOX 
reasonable progress emission limit of 0.17 lb/MMBtu (30-day rolling 
average) each for Units 1 and 2 based on the emission reductions 
achievable through the installation and operation of new low-
NOX burners and changes to the overfire air system. The FIP 
required Basin Electric Power Cooperative, the owner of Antelope Valley 
Station, to comply with the emission limit and related monitoring, 
record keeping, and reporting requirements as expeditiously as 
practicable, but no later than July 31, 2018.\22\
---------------------------------------------------------------------------

    \22\ Basin Electric began operating the new NOX 
controls at Antelope Valley Station Units 1 and 2 in May of 2014 and 
June of 2016, respectively, as reported to EPA Air Markets Program 
Data, available at http://ampd.epa.gov/ampd/.
---------------------------------------------------------------------------

    Subsequently, several petitioners challenged various aspects of the 
2012 Final Rule in the United States Court of Appeals for the Eighth 
Circuit. Pertinent to this proposal, the State of North Dakota 
challenged EPA's disapproval of the State's reasonable progress 
determination that no additional NOX emissions controls were 
warranted at Antelope Valley Station Units 1 and 2. The State also 
challenged EPA's determination in its FIP that an emission limit of 
0.17 lb/MMBtu (30-day rolling average) was necessary to satisfy the 
reasonable progress requirements.
    On September 23, 2013, the Eighth Circuit concluded that EPA 
properly disapproved portions of the 2010 Regional Haze SIP, including 
the reasonable progress determination for Antelope Valley Station Units 
1 and 2. The court also upheld EPA's FIP promulgating an emission limit 
of 0.17 lb/MMbtu (30-day rolling average) for Antelope Valley Station 
Units 1 and 2. However, the court vacated and remanded EPA's FIP 
promulgating an emission limit of 0.13 lb/MMbtu (30-day rolling 
average) for Coal Creek Station, which is another coal-fired power 
plant located in North Dakota and was addressed in the 2010 Regional 
Haze SIP and the 2012 Final Rule.\23\
---------------------------------------------------------------------------

    \23\ North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2013), cert. 
denied, 134 S. Ct. 2662 (2014).
---------------------------------------------------------------------------

    On August 3, 2020, North Dakota submitted Amendment No. 2 to the 
Regional Haze SIP, which incorporates the 2012 FIP requirements for 
Antelope Valley Station.\24\ Amendment No. 2 is the subject of this 
proposed action.
---------------------------------------------------------------------------

    \24\ Letter dated July 28, 2020, from Doug Burgum, Governor, 
North Dakota, to Gregory Sopkin, Regional Administrator, EPA Region 
8, Subject: Revisions to North Dakota Regional Haze SIP for control 
of air pollution; North Dakota, Final Revisions to Implementation 
Plan for Control of Air Pollution, Amendment No. 2 to North Dakota 
State Implementation Plan First Planning Period for Regional Haze 
(July 2020) (Amendment No. 2).
---------------------------------------------------------------------------

    Sections 110(a)(2) and 110(l) of the CAA, 40 CFR 51.102, and 
appendix V to part 51 require that a state provide reasonable notice 
and a public hearing before adopting a SIP revision and submitting it 
to EPA. North Dakota provided notice, held a public hearing on February 
7, 2020, and accepted comments on Amendment No. 2 from December 17, 
2019 through February 17, 2020.

II. EPA's Evaluation of Amendment No. 2 to the North Dakota Regional 
Haze State Implementation Plan

A. Reasonable Progress Requirements for the Antelope Valley Station

    Antelope Valley Station Units 1 and 2 are tangentially-fired 
boilers, each having a generating capacity of 435 megawatts (MW). These 
boilers are not BART-eligible because they commenced operation in the 
1980s, after the 15-year period specified in the CAA and the Regional 
Haze Rule. The boilers burn North Dakota lignite. In the 2010 Regional 
Haze SIP, North Dakota identified Antelope Valley Station Units 1 and 2 
as sources that potentially affect visibility in Class I areas that 
should be evaluated for reasonable progress controls.\25\
---------------------------------------------------------------------------

    \25\ 76 FR 58570, 58624 (September 21, 2011).
---------------------------------------------------------------------------

    The requirements of the 2012 FIP for Antelope Valley Station Units 
1 and 2, including the emission limit of 0.17 lb/MMBtu (30-day rolling 
average), and associated monitoring, recordkeeping, and reporting, are 
the same requirements incorporated into the State's Permit to Construct 
number PTC

[[Page 14058]]

20031, which is part of Amendment No. 2.\26\ Thus, for the same reasons 
we concluded in our 2012 Final Rule that this emission limit and the 
corresponding monitoring, recordkeeping, and reporting requirements are 
appropriate and reasonable under 40 CFR 51.308(d), we continue to find 
that they satisfy reasonable progress requirements for NOX 
for the first planning period at Antelope Valley Station.\27\ 
Accordingly, we propose to approve Amendment No. 2.
---------------------------------------------------------------------------

    \26\ Amendment No. 2, Appendix D.6.
    \27\ 76 FR 58630-32, 77 FR 20898-99.
---------------------------------------------------------------------------

B. Consultation With Federal Land Managers

    As described in section I.E 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 required to provide 
the FLMs with an opportunity for consultation in development of the 
State's proposed SIP revision. By email correspondence on December 4, 
2019, North Dakota provided the FLMs the opportunity to comment on 
Amendment No. 2.\28\ The National Park Service responded by email on 
January 6, 2020, indicating its intent to comment on the State's review 
of control measures for Antelope Valley Station as part of the second 
regional haze planning period. No other FLMs commented. EPA proposes to 
find that North Dakota fulfilled its requirement to consult with the 
FLMs on the SIP revision.
---------------------------------------------------------------------------

    \28\ Amendment No. 2, Appendix J.1.6. Note that North Dakota 
provided the opportunity for FLM consultation although it did not 
believe consultation was needed because the requirements of the SIP 
revision are the same as the FIP.
---------------------------------------------------------------------------

III. EPA's Proposed Action

A. Amendment No. 2 to the North Dakota Regional Haze State 
Implementation Plan

    We are proposing to approve the following elements of Amendment No. 
2 to the North Dakota Regional Haze SIP:
     A NOX emission limit of 0.17 lb/MMBtu (30-day 
rolling average) each for Antelope Valley Station Units 1 and 2 with 
the emission limit to apply at all times including during periods of 
startup, shutdown, emergency, and malfunction.
     The associated monitoring, recordkeeping, and reporting 
requirements for Antelope Valley Station Units 1 and 2.
     Compliance with the emission limit and monitoring, 
recordkeeping, and reporting requirements in the SIP revision no later 
than when EPA finalizes this proposed action.
     Related nonregulatory provisions as reflected in additions 
and changes to the 2010 Regional Haze SIP in section 9.5.1 (Antelope 
Valley Station), Appendix J.1.6 (FLM Comments on Amendment No. 2 and 
Department's Response), and Appendix J.3.4 (U.S. Environmental 
Protection Agency Comments on Amendment No. 2 and Department's 
Response).
    We are also proposing to restore certain other nonregulatory text 
amendments under 40 CFR 52.1820(e). The proposed amendments include 
incorporation of those previously approved in our 2012 Final Rule. EPA 
partially approved these provisions as meeting the requirements of the 
CAA and applicable regulations in previous actions; \29\ however, we 
inadvertently deleted all approved provisions relevant to regional haze 
in 40 CFR 52.1820(e) when updating the paragraph in 2015.\30\ We are 
proposing to remedy that error here; however, in this proposed action, 
we are not otherwise addressing or reopening for comment any of the 
previously approved provisions. We will deem any comments on these 
provisions beyond the scope of this action.
---------------------------------------------------------------------------

    \29\ 77 FR 20894.
    \30\ 80 FR 76211 (December 8, 2015).
---------------------------------------------------------------------------

B. Federal Implementation Plan Withdrawal

    Because we are proposing to find that Amendment No. 2 satisfies the 
reasonable progress requirements for NOX at Antelope Valley 
Station Units 1 and 2 for the first regional haze planning period, we 
are also proposing to withdraw the corresponding portions of the North 
Dakota Regional Haze FIP at 40 CFR 52.1825.
    In addition, 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.\31\ Because this is a 
purely ministerial action to ensure that the Code of Federal 
Regulations reflects current case law, we are not inviting public 
comment on our removal of the vacated language. Note that North 
Dakota's BART obligation for Coal Creek Station remains outstanding.
---------------------------------------------------------------------------

    \31\ North Dakota, 730 F.3d at 764.
---------------------------------------------------------------------------

    We are not proposing any other changes to our 2012 Final Rule 
because no other changes were addressed in Amendment No. 2 or required 
by the North Dakota decision. Accordingly, all other parts of our 2012 
FIP, including our determinations regarding North Dakota's reasonable 
progress goals, long-term strategy, and interstate transport 
obligations under CAA section 110(a)(2)(D)(i)(II) concerning visibility 
protection,\32\ remain in place.\33\ We are not reopening or taking 
comment on these aspects of our 2012 Final Rule. We will deem any 
comments on these issues beyond the scope of this action.
---------------------------------------------------------------------------

    \32\ 42 U.S.C. 7410(a)(2)(D)(i)(II).
    \33\ 77 FR 20896, 20899-900; see also 85 FR 20165, 20177 (April 
10, 2020) (regarding the status of North Dakota's obligations under 
CAA section 110(a)(2)(D)(i)(II) concerning visibility protection).
---------------------------------------------------------------------------

C. Clean Air Section 110(l)

    Under CAA section 110(l), EPA cannot approve a plan revision ``if 
the revision would interfere with any applicable requirement concerning 
attainment and reasonable further progress (as defined in section 7501 
of this title), or any other applicable requirement of this chapter.'' 
\34\ The previous sections of this document and our 2011 proposed rule 
and 2012 Final Rule explain how the proposed SIP revision will comply 
with applicable regional haze requirements and general implementation 
plan requirements, such as enforceability.\35\ Additionally, there are 
no NAAQS nonattainment or maintenance areas in North Dakota.\36\ 
Approval of Amendment No. 2 would merely transfer the emission limit 
and associated monitoring, recordkeeping, and reporting requirements 
for Antelope Valley Station Units 1 and 2 currently found in EPA's 2012 
FIP \37\ into North Dakota's Regional Haze SIP. Thus, there will be no 
change in air quality requirements or to actual emissions from the 
Antelope Valley Station. As such, the SIP revision will not interfere 
with attainment of the NAAQS, reasonable further progress, or other CAA 
requirements. Accordingly, we propose to find that an approval of 
Amendment No. 2 and concurrent withdrawal of the corresponding FIP, are 
not anticipated to interfere with applicable requirements of the CAA 
and therefore CAA section 110(l) does not prohibit approval of this SIP 
revision.
---------------------------------------------------------------------------

    \34\ 42 U.S.C. 7410(l).
    \35\ 76 FR 58630-32, 77 FR 20898-99.
    \36\ See Current Nonattainment Counties for All Criteria 
Pollutants, https://www3.epa.gov/airquality/greenbook/ancl.html 
(last visited Jan. 11, 2021).
    \37\ 40 CFR 52.1825.
---------------------------------------------------------------------------

IV. Incorporation by Reference

    In this rule, EPA is proposing to include, in a final EPA rule, 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the amendments described in sections II

[[Page 14059]]

and III. 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).

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 \38\ and was therefore not submitted to 
the Office of Management and Budget (OMB) for review. This proposed 
rule applies to only a single facility in North Dakota: Antelope Valley 
Station. It is therefore not a rule of general applicability.
---------------------------------------------------------------------------

    \38\ 58 FR 51735, 51738 (October 4, 1993).
---------------------------------------------------------------------------

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act (PRA).\39\ A 
``collection of information'' under the PRA means ``the obtaining, 
causing to be obtained, soliciting, or requiring the disclosure to an 
agency, third parties or the public of information by or for an agency 
by means of identical questions posed to, or identical reporting, 
recordkeeping, or disclosure requirements imposed on, ten or more 
persons, whether such collection of information is mandatory, 
voluntary, or required to obtain or retain a benefit.'' \40\ Because 
this proposed rule revises regional haze requirements reporting 
requirements for a single facility, the PRA does not apply.
---------------------------------------------------------------------------

    \39\ 44 U.S.C. 3501 et seq.
    \40\ 5 CFR 1320.3(c) (emphasis added).
---------------------------------------------------------------------------

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities under the 
RFA. This proposed rule does not impose any requirements or create 
impacts on small entities as no small entities are subject to the 
requirements of this proposed rule.

E. Unfunded Mandates Reform Act (UMRA)

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on state, local and tribal 
governments and the private sector. Under section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for final rules with ``Federal mandates'' that may result in 
expenditures to state, local, and tribal governments, in the aggregate, 
or to the private sector, of $100 million or more (adjusted for 
inflation) in any one year. Before promulgating an EPA rule for which a 
written statement is needed, section 205 of UMRA generally requires EPA 
to identify and consider a reasonable number of regulatory alternatives 
and adopt the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 of UMRA do not apply when they are inconsistent with 
applicable law. Moreover, section 205 of UMRA allows EPA to adopt an 
alternative other than the least costly, most cost-effective, or least 
burdensome alternative if the Administrator publishes with the final 
rule an explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed under section 203 of UMRA a small government agency 
plan. The plan must provide for notifying potentially affected small 
governments, enabling officials of affected small governments to have 
meaningful and timely input in the development of EPA regulatory 
actions with significant federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    Under Title II of UMRA, EPA has determined that this proposed rule 
does not contain a federal mandate that may result in expenditures that 
exceed the inflation-adjusted UMRA threshold of $100 million \41\ by 
state, local, or tribal governments or the private sector in any one 
year. The proposed approval of Amendment No. 2, and simultaneous 
withdraw of corresponding portions of our FIP, would not result in 
private sector expenditures. Additionally, we do not foresee 
significant costs (if any) for state and local governments. Thus, this 
proposed rule is not subject to the requirements of sections 202 or 205 
of UMRA. This proposed rule is also not subject to the requirements of 
section 203 of UMRA because it contains no regulatory requirements that 
might significantly or uniquely affect small governments.
---------------------------------------------------------------------------

    \41\ Adjusted to 2019 dollars, the UMRA threshold becomes $164 
million.
---------------------------------------------------------------------------

F. Executive Order 13132: Federalism

    Executive Order 13132, Federalism,\42\ revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' \43\ ``Policies that have 
federalism implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' \44\ Under Executive Order 13132, EPA may not issue a 
regulation ``that has federalism implications, that imposes substantial 
direct compliance costs, . . . and that is not required by statute, 
unless [the Federal Government provides the] funds necessary to pay the 
direct [compliance] costs incurred by the State and local 
governments,'' or EPA consults with state and local officials early in 
the

[[Page 14060]]

process of developing the final regulation.\45\ EPA also may not issue 
a regulation that has federalism implications and that preempts state 
law unless the agency consults with state and local officials early in 
the process of developing the final regulation.
---------------------------------------------------------------------------

    \42\ 64 FR 43255, 43255-43257 (August 10, 1999).
    \43\ 64 FR 43255, 43257.
    \44\ Id.
    \45\ Id.
---------------------------------------------------------------------------

    This action does not have federalism implications. The proposed 
rule will not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132. Thus, Executive 
Order 13132 does not apply to this action.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments,'' requires EPA to develop an 
accountable process to ensure ``meaningful and timely input by tribal 
officials in the development of regulatory policies that have tribal 
implications.'' \46\ This proposed rule does not have tribal 
implications, as specified in Executive Order 13175. It will not have 
substantial direct effects on tribal governments. Thus, Executive Order 
13175 does not apply to this rule.
---------------------------------------------------------------------------

    \46\ 65 FR 67249, 67250 (November 9, 2000).
---------------------------------------------------------------------------

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997). EPA interprets Executive Order 13045 as applying only 
to those regulatory actions that concern environmental health or safety 
risks that EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the executive order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires federal agencies to evaluate existing 
technical standards when developing a new regulation. Section 12(d) of 
NTTAA, Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to 
consider and use ``voluntary consensus standards'' in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898, establishes federal executive policy on 
environmental justice.\47\ Its main provision directs federal agencies, 
to the greatest extent practicable and permitted by law, to make 
environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies and 
activities on minority populations and low-income populations in the 
United States.
---------------------------------------------------------------------------

    \47\ 59 FR 7629 (February 16, 1994).
---------------------------------------------------------------------------

    In 2012, we determined that our final action would ``not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increased the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population.'' \48\ Because this proposed rule does not alter 
requirements for Antelope Valley Station, and only transfers them from 
the FIP to the SIP, our determination is unchanged from that in 2012. 
EPA, however, will consider any input received during the public 
comment period regarding environmental justice considerations.
---------------------------------------------------------------------------

    \48\ 77 FR 20941 (April 6, 2012).
---------------------------------------------------------------------------

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: February 25, 2021.
Debra H. Thomas,
Acting 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. In Sec.  52.1820:
0
a. The table in paragraph (d) is amended by adding the center heading 
``Antelope Valley Station Units 1 and 2.'' and the entry ``PTC20031'' 
at the end of the table;
0
b. The table in paragraph (e) is amended by adding the center heading 
``North Dakota State Implementation Plan for Regional Haze.'' and the 
entry ``North Dakota State Implementation Plan for Regional Haze'' at 
the end of the table.
    The additions read as follows:


Sec.  52.1820  Identification of plan.

* * * * *
    (d) * * *

[[Page 14061]]



----------------------------------------------------------------------------------------------------------------
                                       State effective     EPA effective        Final rule
    Rule No.          Rule title             date               date          citation/date         Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                      Antelope Valley Station Units 1 and 2
----------------------------------------------------------------------------------------------------------------
PTC20031........  Air pollution       [Date of           [Date 30 days      [Federal Register  Only: NOX BART
                   control permit to   publication of     after date of      citation of the    emission limit
                   construct for       the final rule     publication of     final rule],       for Units 1 and
                   Federal             in the Federal     the final rule     [Date of           2 and
                   Implementation      Register].         in the Federal     publication of     corresponding
                   Plan Replacement.                      Register].         the final rule     monitoring,
                                                                             in the Federal     recordkeeping,
                                                                             Register].         and reporting
                                                                                                requirements.
----------------------------------------------------------------------------------------------------------------

    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                                    State       EPA effective      Final rule
          Rule No.               Rule title    effective date        date        citation/date       Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                            North Dakota State Implementation Plan for Regional Haze
----------------------------------------------------------------------------------------------------------------
North Dakota State            North Dakota             7/8/20  [Date 30 days    [Federal         Excluding
 Implementation Plan for       State                            after date of    Register         provisions
 Regional Haze.                Implementation                   publication of   citation of      disapproved on
                               Plan for                         the final rule   the final        April 6, 2012,
                               Regional Haze.                   in the Federal   rule], [Date     77 FR 20894.
                                                                Register].       of publication
                                                                                 of the final
                                                                                 rule in the
                                                                                 Federal
                                                                                 Register].
----------------------------------------------------------------------------------------------------------------

Sec.  52.1825  [Removed and Reserved]

0
3. Remove and reserve Sec.  52.1825.
[FR Doc. 2021-04402 Filed 3-11-21; 8:45 am]
BILLING CODE 6560-50-P


