[Federal Register Volume 86, Number 61 (Thursday, April 1, 2021)]
[Proposed Rules]
[Pages 17101-17106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06399]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2021-0002; FRL-10021-88-Region 8]


Approval and Promulgation of Implementation Plans; North Dakota; 
Revisions to Air Pollution Control Rules; Regional Haze

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revision to the North Dakota State Implementation Plan (SIP) 
submitted by the State of North Dakota on November 11, 2016 and 
supplemented on March 15, 2021, that addresses amendments to the 
regional haze provisions of the North Dakota Administrative Code 
(NDAC). These revisions were submitted to remove certain regional haze 
requirements related to Best Available Retrofit Technology (BART) in 
the first planning period. EPA is also proposing to approve a revision 
to the North Dakota SIP submitted on August 3, 2020, that addresses 
additional amendments to the regional haze provisions of the NDAC. The 
2020 SIP revision was submitted to update the incorporation by 
reference date for regional haze definitions, add emission reduction 
requirements to make reasonable progress during the second and 
subsequent regional haze planning periods, and revise the regional haze 
monitoring, recordkeeping, and reporting requirements to be applicable 
under the second and subsequent planning period. EPA is taking this 
action pursuant to section 110 and Part C of the Clean Air Act (CAA).

[[Page 17102]]


DATES: Written comments must be received on or before May 3, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2021-0002, 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://www2.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: Jaslyn Dobrahner, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, (303) 312-6252, [email protected].

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

I. What action is EPA proposing?
II. 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. Consultation With Federal Land Managers
    E. Monitoring, Recordkeeping, and Reporting
    F. Regulatory and Legal History for North Dakota Regional Haze
III. EPA's Evaluation of North Dakota's Regional Haze SIP Revisions
    A. November 11, 2016 Submittal and March 15, 2021 Supplement
    B. August 3, 2020 Submittal
    C. Consultation With Federal Land Managers
IV. Clean Air Act Section 110(l)
V. Summary of EPA's Proposed Action
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    EPA is proposing to approve North Dakota's regional haze SIP 
revision submitted by the State of North Dakota on November 11, 2016, 
and supplemented on March 15, 2021, as discussed in sections III and V 
of this proposed rulemaking. Specifically, we are proposing to approve 
North Dakota's removal of NDAC section 33-15-25-02.1 (requirement 
pertaining to the submittal of a regional haze BART analysis) and 
section 33-15-25-03 (requirement that references the federal guidelines 
for BART determinations under the regional haze rule) from the regional 
haze provisions provided in NDAC section 33-15-25.\1\
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    \1\ On August 6, 2018, North Dakota submitted a SIP to EPA that 
recodified the Air Pollution Control Rules, including those that 
address regional haze, from NDAC section 33-15 to NDAC section 33.1-
15. EPA approved the recodification on February 5, 2019 (84 FR 
1610). The recodification made the regional haze section of NDAC to 
be changed from section 33-15-25 to section 33.1-15-25. The 2018 SIP 
reflected the deletions of section 33.1-15-25-02.1 and section 33.1-
15.25-03 (formerly referred to as section 33-15-25-02.1 and section 
33-15-25-03).
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    EPA is also proposing to approve a portion of North Dakota's August 
3, 2020, SIP revision that addresses NDAC section 33.1-15-25 of the Air 
Pollution Control Rules for regional haze.\2\ Specifically, we are 
proposing to approve the following revisions to NDAC: Section 33.1-15-
25-01 which updates the incorporation by reference date for regional 
haze definitions; section 33.1-15-25-03 which adds emission reduction 
requirements to make reasonable progress for the second and subsequent 
planning periods; and section 33.1-15-25-04 which revises the regional 
haze monitoring, recordkeeping, and reporting requirements to be 
applicable to sources under the second and subsequent planning periods.
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    \2\ EPA will act on the remaining portions of the ND August 3, 
2020, SIP in a future rulemaking.
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II. Background

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

    In section 169A of the CAA, 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.'' \3\
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    \3\ 42 U.S.C. 7491(a). Areas designated as mandatory Class I 
Federal areas consist of national parks exceeding 6,000 acres, 
wilderness areas and national memorial parks exceeding 5,000 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 whose visibility they consider 
to be 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 action, we mean a 
``mandatory Class I Federal area.''
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    EPA promulgated a rule to address regional haze on July 1, 1999.\4\ 
The Regional Haze Rule revised the existing visibility regulations \5\ 
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 40 CFR 
51.309, are included in EPA's visibility protection regulations at 40 
CFR 51.300 through 40 CFR 51.309.\6\ EPA revised the Regional Haze Rule 
on January 10, 2017.\7\
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    \4\ 64 FR 35714, 35714 (July 1, 1999) (codified at 40 CFR part 
51, subpart P).
    \5\ 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).
    \6\ EPA revised the Regional Haze Rule on January 10, 2017. 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 section 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).
    \7\ 82 FR 3078 (January 10, 2017).
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    The CAA requires each state to develop a SIP to meet various air 
quality requirements, including protection of visibility by submitting 
periodic plans demonstrating how they have and will continue to make 
progress towards achieving their visibility improvement

[[Page 17103]]

goals.\8\ Regional haze SIPs must assure reasonable progress toward the 
national goal of preventing future and remedying existing manmade 
visibility impairment in Class I areas. A state must submit its SIP and 
SIP revisions to EPA for approval.\9\ The first state plans were due in 
2007 and covered the 2008-2018 planning period. State plans covering 
the second planning period, 2018-2028, are due on July 31, 2021. Once 
approved, a SIP is enforceable by EPA and citizens under the CAA; that 
is, the SIP is federally enforceable.
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    \8\ 42 U.S.C. 7410(a), 7491, and 7492(a); CAA sections 110(a), 
169A, and 169B.
    \9\ 42 U.S.C. 7491(b)(2) and 7410.
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B. Best Available Retrofit Technology

    Section 169A(b)(2) of the CAA requires SIPs to contain such 
measures as may be necessary to make reasonable progress toward meeting 
the national visibility goal. Section 169(b)(2)(A) specifies that one 
such requirement is for certain categories of existing major stationary 
sources built between 1962 and 1977 to procure, install, and operate 
BART as determined by the states through their SIPs. Under the Regional 
Haze Rule, states (or EPA, in the case of a FIP) are directed to 
conduct BART determinations for such ``BART-eligible'' sources--
typically larger, often uncontrolled, and older stationary sources--
that may reasonably be anticipated to cause or contribute to any 
visibility impairment in a Class I area.\10\ Rather than requiring 
source-specific BART controls, states also have the flexibility to 
adopt an emissions trading program or other alternative program as long 
as the alternative will achieve greater reasonable progress toward 
natural visibility conditions than BART.\11\
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    \10\ 40 CFR 51.308(e). EPA designed the Guidelines for BART 
Determinations Under the Regional Haze Rule (Guidelines) 40 CFR 
appendix Y to part 51 ``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.'' Guidelines, 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'').
    \11\ 40 CFR 51.308(e)(2). WildEarth Guardians v. EPA, 770 F.3d 
919, 934 (10th Cir. 2014).
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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. . . .'' \12\ 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.\13\ 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.'' \14\ 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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    \12\ 42 U.S.C. 7491(b)(2)(B).
    \13\ 40 CFR 51.308(d)(3).
    \14\ 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,\15\ 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.\16\ 
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.\17\
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    \15\ 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.
    \16\ 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).
    \17\ Id. Sec.  51.308(g); Sec.  51.309(d)(10).
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D. 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. Further, when considering a 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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E. Monitoring, Recordkeeping, and Reporting

    The CAA requires that SIPs, including regional haze SIPs, contain 
elements sufficient to ensure emission limits are practically 
enforceable. CAA section 110(a)(2) states that the monitoring, 
recordkeeping, and reporting provisions of states' SIPs must: ``(A) 
include enforceable emissions limitations and other control measures, 
means, or techniques (including economic incentives such as fees, 
marketable permits, and auctions of emissions rights), as well as 
schedules and timetables for compliance, as may be necessary or 
appropriate to meet the applicable requirements of this chapter; . . . 
(C) include a program to provide for the enforcement of the measures 
described in subparagraph (A), and regulation of the modification and 
construction of any stationary source within the areas covered by the 
plan as necessary to assure that national ambient air quality standards 
are achieved, including a permit program as required in parts C and D 
of this subchapter ;. . . (F) require, as may be prescribed by the 
Administrator--(i) the installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources to monitor emissions from such 
sources, (ii) periodic reports on the nature and amounts of emissions 
and emissions-related data from such sources, and (iii) correlation of 
such reports by the State agency with any emissions limitations or 
standards established pursuant to this chapter, which reports shall be 
available at reasonable times for public inspection.'' \19\
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    \19\ 42 U.S.C. 7410(a)(2)(A), (C), and (F).
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    Accordingly, 40 CFR part 51, subpart K, Source Surveillance, 
requires the SIP to provide for monitoring the status of compliance 
with the regulations in the SIP, including ``[p]eriodic testing and 
inspection of stationary sources,'' \20\ and ``legally enforceable 
procedures'' for recordkeeping and reporting.\21\ Furthermore, 40 CFR 
part 51, appendix V, Criteria for Determining the Completeness of Plan 
Submissions,

[[Page 17104]]

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.'' \22\
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    \20\ 40 CFR 51.212.
    \21\ Id. Sec.  51.214.
    \22\ 40 CFR part 51, appendix V.
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F. Regulatory and Legal History for North Dakota Regional Haze

    On March 3, 2010, North Dakota submitted a SIP that addressed 
regional haze requirements under 40 CFR 51.308 for the first regional 
haze planning period. The State submitted a supplement to the March 3, 
2010 submittal on July 27, 2010, and a SIP amendment 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 CAA and 
our rules for the regional haze program. On April 6, 2012, EPA 
partially approved and partially disapproved North Dakota's Regional 
Haze SIP and issued a Federal Implementation Plan (FIP) to address the 
disapproved portions of North Dakota's regional haze.\23\ Among other 
items, we approved the incorporation of North Dakota's regional haze 
regulatory requirements found in NDAC sections 33-15-25-01, 33-15-25-
02, 33-15-25-03, and 33-15-25-04 pertaining to regional haze 
definitions, the analysis, installation, and operation and maintenance 
of BART, BART guidelines, and monitoring, recordkeeping, and reporting.
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    \23\ 77 FR 20894 (April 6, 2012).
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    Subsequently, several petitioners challenged EPA's disapproval of 
North Dakota's 2010 Regional Haze SIP and issuance of the 2012 FIP in 
the United States Court of Appeals for the Eighth Circuit. On September 
23, 2013, the Eighth Circuit concluded that EPA properly disapproved 
portions of the State's 2010 Regional Haze SIP and remanded and vacated 
portions of EPA's FIP.24 25
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    \24\ North Dakota v. United States EPA, 730 F.3d 750 (8th Cir. 
2013), cert. denied, 134 S. Ct. 2662 (2014).
    \25\ The Eighth Circuit concluded that EPA properly disapproved 
portions of the State's 2010 Regional Haze SIP and upheld portions 
of EPA's FIP. However, the court remanded and vacated EPA's FIP 
promulgating an emission limit of 0.13 lb/MMbtu (30-day rolling 
average) for Coal Creek Station.
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III. EPA's Evaluation of North Dakota's Regional Haze SIP Revisions

    On November 11, 2016 we received from North Dakota SIP revisions 
that included amendments to NDAC section 33-15-25 (also known as 
section 33.1-15-25) \26\ addressing regional haze. On March 15, 2021, 
we received a supplemental submission to the 2016 SIP. On August 3, 
2020, we received from North Dakota a SIP revision that addressed 
additional amendments to NDAC section 33.1-15-25 addressing regional 
haze. The following is a discussion of our evaluation.
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    \26\ EPA approved the recodification of the Air Pollution 
Control Rules, including those that address regional haze, from NDAC 
section 33-15 to NDAC section 33.1-15. See 84 FR 1610 (February 5, 
2019). The recodification changed the regional haze section of NDAC 
from section 33-15-25 to 33.1-15-25.
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A. November 11, 2016 Submittal and March 15, 2021 Supplement

    In the November 11, 2016, SIP submittal supplemented on March 15, 
2021, North Dakota removed NDAC sections 33-15-25-02.1 and 33-15-25-03 
(currently referred to as NDAC sections 33.1-15-25-02.1 and 33.1-15-25-
03) \27\ pertaining to the submission and guidelines for BART 
requirements, respectively.\28\ Specifically, North Dakota removed NDAC 
section 33.1-15-25-02.1 which required owners and operators of any 
existing stationary facility as defined in 40 CFR 51.301 that 
contributes to visibility impairment in a class I federal area to 
submit, within nine months after being notified by the department, a 
regional haze BART analysis to the State. In conjunction, North Dakota 
also removed section 33.1-15-25-03 which referenced the July 6, 2005, 
version of the federal guidelines contained in 40 CFR part 51, appendix 
Y for preparing BART determinations.
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    \27\ In 2019, EPA approved North Dakota's recodification of NDAC 
section 33-15 to 33.1-15 (84 FR 1610, February 5, 2019). 
Hereinafter, we will refer to the current NDAC citation.
    \28\ SIP submittal received by EPA on November 11, 2016 with a 
letter dated October 27, 2016, from Governor Jack Dalrymple, State 
of North Dakota to Shaun McGrath, Regional Administrator, EPA Region 
8. In addition, North Dakota submitted a letter dated March 15, 2021 
supplementing the November 11, 2016 SIP for the NDAC section 33-15-
25-02.1 and 33-15-25-03.
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    According to the State, these subsections were eliminated because 
they are no longer requisite. Indeed, we proposed to approve the 
remaining outstanding BART determination for NOX at Coal 
Creek Station on April 26, 2018.\29\ With the submission of a BART 
analysis and subsequent BART determination for Coal Creek Station 
completed and submitted to EPA, we agree with the State's determination 
that owners and operators of BART sources within the State of North 
Dakota have completed and submitted required BART analyses and 
determinations for the first planning period of the regional haze rule, 
thereby negating the need for these provisions to remain in the SIP. Of 
importance, the State did not remove BART provisions related to the 
installation (NDAC section 33.1-15-25-02.2) and operation and 
maintenance of BART (NDAC section 33.1-15-25-02.3) which provides for 
the continued compliance with the regional haze rule requirements 
related to the first planning period. Furthermore, the State can rely 
on its authorities in NDAC section 23.1-06-04(e), (h), and (j) to 
require an updated BART analysis for Coal Creek Station, if needed.\30\ 
Thus, we propose to approve the removal of NDAC sections 33.1-15-25-
02.1 and 33.1-15-25-03 \31\ related to the submission of and guidelines 
for BART requirements, respectively.
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    \29\ 83 FR 18248.
    \30\ North Dakota Century Code (NDCC) section 23.1-06-04(e) 
Issues orders necessary to effectuate the purpose of this chapter 
and enforce the orders by all appropriate administrative and 
judicial procedures; NDCC section 23.1-06-04(h) Formulate and adopt 
emission control requirements for the prevention, abatement, and 
control of air pollution in this state including achievement of 
ambient air quality standards; NDCC section 23.1-06-04(j) Require 
the owner and operator of a regulated air contaminant source to 
establish and maintain records; make reports; install, use, and 
maintain monitoring equipment or methods; sample emissions in 
accordance with those methods at designated locations and intervals, 
and using designated procedures; and provide other information as 
may be required.
    \31\ Referenced as NDAC section 33-15-25-02.1 and section 33-15-
25-03 in the November 11, 2016 North Dakota SIP.
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B. August 3, 2020 Submittal

    On August 3, 2020, North Dakota submitted amendments to NDAC 
section 33.1-15-25-01 updating the date of the Code of Federal 
Regulations (CFR) found at 40 CFR 51.301 which the State incorporated 
by reference to reflect the updated July 1, 2019 edition of the CFR. We 
are proposing to approve this revision because it incorporates by 
reference EPA's rule provisions.
    In addition, North Dakota added NDAC section 33.1-15-25-03 to North 
Dakota's regional haze requirements establishing the framework for 
requiring emission control measures to make reasonable progress towards 
the State's visibility goal for second and subsequent regional haze 
planning periods. Under this new rule the owner or operator of an 
existing stationary source, or group of sources shall implement 
emission reduction measures to make reasonable progress, as determined 
in accordance with federal requirements and required in a SIP revision 
developed by the department. Additionally, the rule requires the 
measures be: (1) Implemented within a

[[Page 17105]]

reasonable timeframe after EPA approves the SIP revision; and (2) 
properly operated and maintained. The rule also specifies that emission 
reduction measures and compliance deadlines shall be determined on a 
source-by-source basis and included in the State's SIP. The regional 
haze requirements found in NDAC section 33.1-15-25-03 are consistent 
with the federal requirements found at 40 CFR 51.308(f)(2), Long-term 
strategy for regional haze, which requires enforceable emission 
limitations, compliance schedules, and other measures as necessary to 
make reasonable progress. Therefore, we are proposing to approve the 
addition of NDAC section 33.1-15-25-03 into the State's regional haze 
requirements.
    Finally, North Dakota's revised NDAC section 33.1-15-25-04 to 
broaden the applicability of this section to make monitoring, 
recordkeeping, and reporting requirements applicable to sources under 
the second and subsequent planning periods of the regional haze 
program. Here, the State expanded the applicability of the rule to 
include ``groups of sources'' and the installation of ``emission 
reduction measures to make reasonable progress.'' These revisions are 
consistent the federal regional haze regulations at 40 CFR 
51.308(f)(2), Long-term strategy for regional haze, which recommends 
states consider evaluating groups of sources, in addition to other 
types of source, when determining what emission reduction measures are 
necessary to make reasonable progress. Therefore, we propose to approve 
these revisions.

C. Consultation With Federal Land Managers

    There are two Class I areas in the State of North Dakota: Theodore 
Roosevelt National Park and Lostwood National Wildlife Refuge 
Wilderness Area. The National Park Service manages Theodore Roosevelt 
National Park. The United States Fish and Wildlife Service manage the 
Lostwood National Wildlife Refuge Wilderness Area. The Regional Haze 
Rule grants the FLMs a special role in the review of regional haze 
implementation plans, summarized in Section II.D of this preamble. 
Under 40 CFR 51.308(i)(2), North Dakota was obligated to provide the 
FLMs with an opportunity for consultation in development of the State's 
proposed SIP revisions. North Dakota provided the FLMs with notice and 
access to the proposed revisions to NDAC section 33.1-15-25 prior to 
the public hearings held on November 10, 2015, and February 7, 
2020.\32\ The FLMs did not provide any comments on the proposed 
revisions.
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    \32\ The public hearing associated with the November 11, 2016, 
revisions was held on November 10, 2015 (refer to November 11, 2016 
SIP submittal, page 8). The public hearing associated with the 
August 3, 2020 revisions was held on February 7, 2020 (refer to 
August 3, 2020 SIP submittal, page 10).
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IV. 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.'' 
\33\ The previous sections of the document explain how the proposed SIP 
revisions will comply with applicable regional haze requirements and 
general implementation plan requirements and further strengthen North 
Dakota's regional haze regulations in accordance with the revised 
regional haze rule for the second and subsequent planning periods while 
maintaining regional haze requirements and associated emission control 
measures for the first planning period. Therefore, we propose to find 
that these revisions satisfy section 110(l) by not interfering with any 
applicable requirement concerning attainment and reasonable further 
progress or any other applicable requirement under section 110 of the 
CAA.
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    \33\ 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 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.
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V. Summary of EPA's Proposed Action

    In this action, EPA is proposing to approve SIP amendments to North 
Dakota Air Pollution Control Rules, shown in Table 1, submitted by the 
State of North Dakota on November 11, 2016, and supplemented March 15, 
2021, and August 3, 2020.
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    \34\ Since North Dakota's NDAC recodification in 2018, section 
33-15-25-02.1 is referred to as section 33.1-15-25-02.1.
    \35\ Since North Dakota's NDAC recodification in 2018, section 
33-15-25-03 is referred to as section 33.1-15-25-03.

    Table 1--List of North Dakota Amendments that EPA Is Proposing To
                                 Approve
 
 
 
 Amended Sections in the November 11, 2016 Submittal, Supplemented March
                     15, 2021, Proposed for Approval
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NDAC section 33-15-25-02,\34\ NDAC section 33-15-25-03.\35\
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[[Page 17106]]

 
 Amended Sections in the August 3, 2020 Submittal Proposed for Approval
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NDAC section 33.1-15-25-01, NDAC section 33.1-15-25-03, NDAC section
 33.1-15-25-04.
 

VI. Incorporation by Reference

    In this document, EPA is proposing to include regulatory text in an 
EPA final rule that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference NDAC as described in section III. of this preamble. EPA has 
made, and will continue to make, these materials generally available 
through www.regulations.gov (refer to docket EPA-R08-OAR-2021-0002).

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the proposed rule does not have tribal implications and will 
not impose substantial direct costs on tribal governments or preempt 
tribal law as specified by Executive Order 13175 (65 FR 67249, November 
9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Greenhouse gases, Incorporation by reference, Intergovernmental 
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides, Volatile organic 
compounds.

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

    Dated: March 23, 2021.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2021-06399 Filed 3-31-21; 8:45 am]
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