[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]]
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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.
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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 [email protected], 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, [email protected].
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\
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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.''
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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\
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\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).
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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 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\
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\5\ 42 U.S.C. 7410(a), 7491, and 7492(a).
\6\ 42 U.S.C. 7410(c)(1).
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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\
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\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'').
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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\
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\8\ 40 CFR 51.308(e)(2) and (3).
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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.
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\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).
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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\
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\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).
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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.''
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\15\ 42 U.S.C. 7410(a)(2)(A), (C), and (F).
\16\ 40 CFR 51.212(a).
\17\ Id. Sec. 51.211.
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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\
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\18\ 40 CFR 51.308(i).
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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.
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\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.
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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.
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\21\ 77 FR 20894 (April 6, 2012).
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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\
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\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/.
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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\
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\23\ North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2013), cert.
denied, 134 S. Ct. 2662 (2014).
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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.
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\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).
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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\
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\25\ 76 FR 58570, 58624 (September 21, 2011).
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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.
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\26\ Amendment No. 2, Appendix D.6.
\27\ 76 FR 58630-32, 77 FR 20898-99.
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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.
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\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.
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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.
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\29\ 77 FR 20894.
\30\ 80 FR 76211 (December 8, 2015).
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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.
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\31\ North Dakota, 730 F.3d at 764.
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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.
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\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).
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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.
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\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.
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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.
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\38\ 58 FR 51735, 51738 (October 4, 1993).
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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.
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\39\ 44 U.S.C. 3501 et seq.
\40\ 5 CFR 1320.3(c) (emphasis added).
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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.
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\41\ Adjusted to 2019 dollars, the UMRA threshold becomes $164
million.
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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.
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\42\ 64 FR 43255, 43255-43257 (August 10, 1999).
\43\ 64 FR 43255, 43257.
\44\ Id.
\45\ Id.
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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.
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\46\ 65 FR 67249, 67250 (November 9, 2000).
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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.
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\47\ 59 FR 7629 (February 16, 1994).
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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.
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\48\ 77 FR 20941 (April 6, 2012).
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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]]
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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