[Federal Register Volume 89, Number 157 (Wednesday, August 14, 2024)]
[Proposed Rules]
[Pages 66015-66029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17471]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 89, No. 157 / Wednesday, August 14, 2024 / 
Proposed Rules  

[[Page 66015]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2023-0641; FRL-12157-01-R8]


Air Plan Approval; North Dakota; Approval of Air Quality 
Implementation Plans; Regional Haze State Implementation Plan; Regional 
Haze Five Year Progress Report and Nitrogen Oxides Best Available 
Retrofit Technology Determination for Coal Creek Station for the First 
Implementation Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve certain portions of State Implementation Plan (SIP) revisions 
submitted by the State of North Dakota (North Dakota) on January 12, 
2015, and August 11, 2022, to address regional haze. Specifically, the 
EPA is proposing to approve North Dakota's nitrogen oxides 
(NOX) Best Available Retrofit Technology (BART) 
determination for Coal Creek Station power plant (Coal Creek) for the 
first implementation period of the regional haze program and North 
Dakota's five-year regional haze progress report. This action addresses 
the United States Court of Appeals for the Eighth Circuit's September 
23, 2012 vacatur and remand of the portion of the EPA's 2012 Regional 
Haze Federal Implementation Plan (FIP) that promulgated a BART emission 
limit of 0.13 lb/MMBtu NOX (30-day rolling average) for Coal 
Creek. The EPA is taking this action pursuant to the Clean Air Act 
(CAA).

DATES: Written comments must be received on or before September 13, 
2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2023-0641, 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 
https://www.regulations.gov. The 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. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the https://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 
https://www.regulations.gov. 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: Holly DeJong, Air and Radiation 
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, telephone number: (303) 312-6241, email address: 
[email protected]; or Joe Stein, Air and Radiation Division, EPA, 
Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, Colorado 
80202-1129, telephone number: (303) 312-7078, email address: 
[email protected].

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

Table of Contents

I. What action is the EPA proposing?
II. Legal Background
    A. Requirements of the Clean Air Act and the EPA's Regional Haze 
Rule
    B. Best Available Retrofit Technology
    C. Long-Term Strategy and Reasonable Progress Requirements
    D. Progress Report Requirements
    E. Consultation With Federal Land Managers
III. North Dakota's Regional Haze SIP Submittals
    A. Background
    B. August 11, 2022 SIP Submittal
    C. North Dakota's NOX BART Determination
    1. Costs of Compliance
    2. Energy and Non-Air Quality Environmental Impacts of 
Compliance
    3. Pollution Control Equipment at the Source
    4. Remaining Useful Life
    5. Visibility Improvement
    6. BART Demonstration
    D. January 12, 2015 Progress Report SIP Submittal
    E. North Dakota's Five-Year Progress Report Determination
IV. The EPA's Evaluation and Proposed Approval of North Dakota's 
NOX BART Determination for Coal Creek Station Units 1 and 
2
    A. Basis of the EPA's Proposed Approval
    1. Costs of Compliance
    i. North Dakota's Selection of Baseline Emission Rates
    ii. North Dakota's Characterization of Costs Using the Control 
Cost Manual
    iii. Costs Associated With the Installation of New Controls
    2. Energy and Non-Air Quality Impacts of Compliance
    3. Pollution Control Equipment at the Source
    4. Remaining Useful Life of Any Potentially Affected Sources
    5. Visibility Improvement Anticipated to Result From Controls
    6. Summary of the EPA's Evaluation of North Dakota's 
NOX BART Determination for Coal Creek Station Units 1 and 
2
    B. Clean Air Act Section 110(l)
    C. Coordination With FLMs
V. The EPA's Evaluation of North Dakota's Five-Year Progress Report
VI. Summary of the EPA's Proposed Action
VII. Environmental Justice
VIII. Incorporation by Reference
IX. Statutory and Executive Order Reviews

I. What action is the EPA proposing?

    On January 12, 2015, North Dakota submitted a SIP revision to 
address the regional haze program requirements to submit periodic 
progress reports under 40 CFR 51.308(g) and 40 CFR 51.308(h)

[[Page 66016]]

(2015 progress report). On August 11, 2022, as part of a SIP revision 
North Dakota submitted to address regional haze for the second 
implementation period, the State also included a revised first 
implementation period NOX BART determination for Coal Creek, 
pursuant to CAA section 169A, CAA section 169B, 40 CFR 51.308(f), and 
40 CFR part 51, appendix Y (2022 SIP submittal). The EPA is proposing 
to approve North Dakota's 2015 progress report, and the portion of 
North Dakota's 2022 SIP submittal relating to the first implementation 
period NOX BART determination for Coal Creek. The EPA will 
act on the portion of North Dakota's 2022 SIP submittal relating to the 
second implementation period requirements in a separate action.

II. Legal Background

A. Requirements of the Clean Air Act and the 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.'' \1\
---------------------------------------------------------------------------

    \1\ 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, 
the 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.''
---------------------------------------------------------------------------

    The EPA promulgated a rule to address regional haze on July 1, 
1999.\2\ The Regional Haze Rule revised the existing visibility 
regulations \3\ to integrate provisions addressing regional haze and 
established a comprehensive visibility protection program for Class I 
Federal areas (Class I areas). The requirements for regional haze, 
found at 40 CFR 51.308 and 40 CFR 51.309, are included in the EPA's 
visibility protection regulations at 40 CFR 51.300 through 40 CFR 
51.309.\4\
---------------------------------------------------------------------------

    \2\ 64 FR 35714, 35714 (July 1, 1999) (codified at 40 CFR part 
51, subpart P).
    \3\ The 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\ The EPA revised the Regional Haze Rule on January 10, 2017. 
82 FR 3078 (January 10, 2017). Under the revised Regional Haze Rule, 
the requirements in 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 
preventing future and remedying existing manmade visibility impairment 
in Class I areas. A State must submit its SIP and SIP revisions to the 
EPA for approval.\6\ Once approved, a SIP is enforceable by the EPA and 
citizens under the CAA; that is, the SIP is federally enforceable.
---------------------------------------------------------------------------

    \5\ 42 U.S.C. 7410(a), 7491, and 7492; CAA sections 110(a), 
169A, and 169B.
    \6\ 42 U.S.C. 7491(b)(2); 7410.
---------------------------------------------------------------------------

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 the EPA, in the case of a FIP) are directed to 
make 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.\7\
---------------------------------------------------------------------------

    \7\ 40 CFR 51.308(e). The 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, 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'').
---------------------------------------------------------------------------

    On July 6, 2005, the EPA published the Guidelines for BART 
Determinations Under the Regional Haze Rule (the ``BART Guidelines'') 
to assist States in determining which sources should be subject to the 
BART requirements and the appropriate emission limits for each covered 
source.\8\ The process of establishing BART emission limitations 
follows three steps: first, identify the sources that meet the 
definition of ``BART-eligible source'' set forth in 40 CFR 51.301; \9\ 
second, determine which of these sources ``emits any air pollutant 
which may reasonably be anticipated to cause or contribute to any 
impairment of visibility in any such area'' (a source that fits this 
description is ``subject to BART''); and third, for each source subject 
to BART, identify the best available type and level of control for 
reducing emissions.
---------------------------------------------------------------------------

    \8\ ``Regional Haze Regulations and Guidelines for Best 
Available Retrofit Technology (BART) Determinations'' (BART 
Guidelines) at 70 FR 39104 (July 6, 2005) codified in 40 CFR part 
51, appendix Y.
    \9\ 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.
---------------------------------------------------------------------------

    Pursuant to CAA section 169A(g)(2), CAA section 169A(b)(2)(A) and 
40 CFR 51.308(e)(1)(ii)(A), in determining the measures necessary for 
BART, a State must take into account the following five factors and 
demonstrate how they were taken into consideration in making a BART 
determination:
     costs of compliance;
     energy and non-air quality impacts of compliance;
     pollution control equipment at the source;
     remaining useful life of any potentially affected sources;
     visibility improvement anticipated to result from 
controls.
    States must address all visibility-impairing pollutants emitted by 
a source in the BART determination process. The most significant 
visibility impairing pollutants are sulfur dioxide (SO2), 
NOX, and particulate matter (PM).

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.'' \10\ The long-
term strategy must address regional haze visibility impairment for each 
mandatory Class I area within the State and 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.\11\ The reasonable progress goals, in turn, are 
calculated for each Class I area based on

[[Page 66017]]

the control measures States have selected for sources by applying 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.'' \12\ 
That is, States consider the four reasonable progress factors, and 
certain other factors listed in Sec.  51.308(d)(3) of the Regional Haze 
Rule, to determine what controls must be included in the long-term 
strategy. Those controls are represented in the long-term strategy, 
i.e., the SIP, as emission limits, schedules of compliance, and other 
measures. 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.
---------------------------------------------------------------------------

    \10\ 42 U.S.C. 7491(b)(2)(B).
    \11\ 42 U.S.C. 7491(b)(2); 40 CFR 51.308(d)(3).
    \12\ 42 U.S.C. 7491(g)(1); 40 CFR 51.308(d)(1)(i)(A).
---------------------------------------------------------------------------

    Unlike the BART determinations, which were only required for the 
first implementation period regional haze planning period SIPs,\13\ 
States are required to submit revisions to their regional haze SIP for 
each planning period, including new reasonable progress analyses and 
reasonable progress goals. The most recent regulatory deadline for 
States to submit their SIP revisions with long-term strategy updates to 
the EPA was on July 31, 2021.\14\
---------------------------------------------------------------------------

    \13\ 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.
    \14\ 40 CFR 51.308(f). The 2021 deadline was originally in 2018; 
the EPA revised this deadline in 2017. 82 FR 3078 (January 10, 
2017); see also 40 CFR 51.308(f). Following the 2021 SIP submittal 
deadline, the next SIP submittal is due in 2028. 40 CFR 51.308(f).
---------------------------------------------------------------------------

D. Progress Report Requirements

    Under 40 CFR 51.308(g) States are required to periodically submit 
progress reports that evaluate progress towards the reasonable progress 
goals for each mandatory Class I area within the State and in each 
Class I area outside the State which may be affected by emissions from 
within the State. The first progress report is required to be in the 
form of a SIP revision and was due five years from submittal of the 
initial implementation plan for the first planning period. The progress 
reports must contain specific elements as listed in 40 CFR 
51.308(g)(1)-(8). Additionally, the provisions of 40 CFR 51.308(h) 
require States to submit, at the same time as the 40 CFR 51.308(g) 
progress report, a determination of adequacy of the State's existing 
regional haze SIP.

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 
revision. Further, a State must include a summary of the FLMs' 
conclusions and recommendations in its notice to the public,\15\ as 
well as include in its submission to the EPA a description of how it 
addressed any comments provided by the FLMs.\16\
---------------------------------------------------------------------------

    \15\ 42 U.S.C. 7491(d).
    \16\ 40 CFR 51.308(i).
---------------------------------------------------------------------------

III. North Dakota's Regional Haze SIP Submittals

A. Background

    Coal Creek, the largest power plant in North Dakota, is a two-unit, 
approximately 1,200 gross megawatt (MW) mine-mouth power plant 
consisting primarily of two steam generators and associated coal and 
ash handling systems.\17\ Coal Creek is located near the Missouri 
River, five miles south of Underwood, North Dakota.\18\ On May 2, 2022, 
Great River Energy sold Coal Creek and the high voltage direct current 
(HVDC) transmission system to Rainbow Energy Center, LLC.\19\
---------------------------------------------------------------------------

    \17\ North Dakota's 2022 SIP submittal, section 8.
    \18\ Id.
    \19\ Coal Creek Sale to Rainbow Energy Center Final. Minot Daily 
News (2022, May 3). Available at https://www.minotdailynews.com/news/local-news/2022/05/coal-creek-station-sale-to-rainbow-energy-center-final.
---------------------------------------------------------------------------

    The Governor of North Dakota submitted North Dakota's Regional Haze 
SIP for the first implementation period to the EPA on March 3, 2010, 
followed by supplements to the SIP titled ``SIP Supplement No. 1'' on 
July 27, 2010, and ``SIP Amendment No. 1'' on July 28, 2011 
(collectively, ``2010 SIP submittal''). North Dakota submitted the 2010 
SIP submittal to meet the requirements of the regional haze program for 
the first planning period of 2008 through 2018. Among other things, the 
2010 SIP submittal included a BART emission limit for NOX 
for Units 1 and 2 at Coal Creek of 0.17 lb/MMBtu averaged across the 
two units (on a 30-day rolling average),\20\ represented by modified 
and additional separated overfire air, close-coupled overfire air, and 
low NOX burners (LNC3+). The next most stringent control 
option North Dakota considered was selective non-catalytic reduction 
(SNCR) in addition to Coal Creek's existing additional separated 
overfire air, close-coupled overfire air, and low NOX 
burners (LNC3). For this control option, North Dakota took into account 
the potential for ammonia from the SNCR to contaminate the fly ash.\21\ 
Ultimately, the State concluded that ``[b]ecause of the potential for 
lost sales of fly ash, the negative environmental effects of having to 
dispose of the fly ash instead of recycling it into concrete, and the 
very small amount of visibility improvement from the use of SNCR, this 
option is rejected as BART.'' \22\
---------------------------------------------------------------------------

    \20\ Throughout, 30-day rolling average emission limits are 
based on boiler operating days.
    \21\ Fly ash is a marketable product sold by Great River Energy.
    \22\ 2010 Regional Haze SIP, appendix D.2, BART Determination 
for Coal Creek Units 1 and 2, 12/1/2009, p. 20.
---------------------------------------------------------------------------

    On April 6, 2012, the EPA promulgated a final rule that approved in 
part and disapproved in part North Dakota's 2010 SIP submittal (2012 
Final Rule).\23\ During the EPA's review of North Dakota's 
NOX BART analysis for Coal Creek, the EPA identified an 
error in the costs associated with lost fly ash sales.\24\ At the EPA's 
request, after North Dakota submitted the 2010 Regional Haze SIP and 
prior to publication of the 2012 Final Rule, North Dakota obtained 
additional supporting information from Great River Energy for lost fly 
ash revenue and for the potential cost of fly ash ammonia mitigation. 
The supporting information included an updated cost analysis from Great 
River Energy noting that the correct sales price for fly ash was $5/ton 
instead of $36/ton. The updated analysis included corrected fly ash 
revenue data and ammonia mitigation costs. That analysis, dated June 
16, 2011, indicated that the cost effectiveness for SNCR at Coal Creek 
Units 1 and 2 would be $2,318/ton of NOX emissions 
reductions rather than the original estimate of $8,551/ton. Because the 
State's cost of compliance analysis was based upon flawed and inflated 
lost fly ash revenue cost estimates, the EPA concluded that the 2010 
Regional Haze SIP failed to properly consider the cost of compliance as 
required by CAA 169A, 40 CFR 51.308(e)(1)(ii)(A), and 40 CFR part 51, 
appendix Y. Therefore, the EPA disapproved North Dakota's 
NOX BART determination for Coal Creek.\25\
---------------------------------------------------------------------------

    \23\ 77 FR 20894 (April 6, 2012).
    \24\ 76 FR 58603 (September 21, 2011); 77 FR 20921 (April 6, 
2012).
    \25\ 77 FR 20894 (Apr. 6, 2012).
---------------------------------------------------------------------------

    In the same action, the EPA promulgated a FIP that included a 
NOX BART emission limit for Units 1 and 2 at the Coal Creek 
of 0.13 lb/MMBtu averaged across the two units (30-day

[[Page 66018]]

rolling average), which Great River Energy could meet by installing 
SNCR plus LNC3+.\26\ This emission limit was based on the EPA's 
independent BART analysis, including the updated costs of compliance.
---------------------------------------------------------------------------

    \26\ The FIP also included: a reasonable progress determination 
and NOX emission limit for Antelope Valley Station 
(Antelope Valley) Units 1 and 2 of 0.17 lb/MMBtu that applies singly 
to each of these units on a 30-day rolling average, and a 
requirement that the owner/operator meet the limit as expeditiously 
as practicable, but no later than July 31, 2018; monitoring, record-
keeping, and reporting requirements for the Coal Creek and Antelope 
Valley units to ensure compliance with the emission limitations; 
reasonable progress goals consistent with the approved SIP emission 
limits approved and the final FIP limits; and long-term strategy 
elements that reflect the other aspects of the finalized FIP. Please 
refer to the EPA's final FIP rule for further information on the FIP 
requirements. 77 FR 20894 (Apr. 6, 2012).
---------------------------------------------------------------------------

    Subsequently, several petitioners challenged various aspects of the 
EPA's final rule in the U.S. Court of Appeals for the Eighth Circuit. 
Pertinent to this proposal, North Dakota and Great River Energy 
challenged the EPA's disapproval of North Dakota's determination that 
LNC3+ with an emission limit of 0.17lb/MMBtu averaged across the two 
units (30-day rolling average) is NOX BART for Coal Creek. 
The petitioners also challenged the EPA's determination that SNCR plus 
LNC3+ with an emission limit of 0.13lb/MMBtu averaged across the two 
units (30-day rolling average) is NOX BART for Coal Creek.
    On January 2, 2013, North Dakota submitted a SIP revision \27\ with 
a revised five-factor NOX BART evaluation for Coal Creek 
(2013 SIP submittal). North Dakota's 2013 SIP submittal affirmed North 
Dakota's earlier BART determination of 0.17 lb/MMBtu averaged across 
the two units (30-day rolling average) to be met with LNC3+.
---------------------------------------------------------------------------

    \27\ North Dakota referred to the January 2, 2013 SIP submittal 
as ``Supplement No. 2''. The EPA herein refers to North Dakota's 
January 2, 2013 submission as a SIP submittal.
---------------------------------------------------------------------------

    On September 23, 2013, the Eighth Circuit concluded that the EPA 
properly disapproved portions of the 2010 Regional Haze SIP, including 
the EPA's disapproval of North Dakota's NOX BART 
determination for Coal Creek.\28\ However, the court vacated the 
portion of the EPA's FIP promulgating a NOX BART emission 
limit of 0.13 lb/MMbtu (30-day rolling average) for Coal Creek, holding 
that the EPA had failed to consider existing pollution control 
technology \29\ already in use at Coal Creek. Specifically, the court 
found that the EPA's refusal to consider DryFiningTM as an 
existing pollution control because it had been voluntarily installed 
after the regional haze baseline date was arbitrary and capricious.\30\
---------------------------------------------------------------------------

    \28\ North Dakota v. EPA, 730 F.3d 750 (8th Cir. 2013), cert. 
denied, 134 S. Ct. 2662 (2014).
    \29\ Pursuant to section 169A(g)(1) of the CAA, ``any existing 
pollution control technology in use at the source'' is one of the 
five factors that must be considered when making a BART 
determination.
    \30\ DryFiningTM is a technology developed by Great 
River Energy that reduces moisture and refines lignite coal, 
increasing the efficiency and performance of the fuel while reducing 
emissions.
---------------------------------------------------------------------------

    Several SIP submissions and EPA actions for the first 
implementation period followed the Eighth Circuit's decision. On 
January 12, 2015, North Dakota submitted a SIP revision for a regional 
haze five-year progress report, pursuant to 40 CFR 51.308(g). On April 
26, 2018, the EPA proposed to approve the Coal Creek NOX 
BART determination in North Dakota's January 2013 SIP submittal.\31\ 
The EPA did not finalize that action and North Dakota subsequently 
withdrew its 2013 SIP submittal of the NOX BART 
determination for Coal Creek.\32\ \33\ On April 5, 2022, the EPA 
approved North Dakota`s August 3, 2020 SIP submittal incorporating the 
2012 FIP requirements for another source.\34\ In the same action, the 
EPA withdrew from the Code of Federal Regulations the vacated Coal 
Creek FIP requirements.
---------------------------------------------------------------------------

    \31\ 83 FR 18248 (April 26, 2018).
    \32\ North Dakota 2022 SIP submittal, Letter from North Dakota 
Governor Doug Burgum to EPA Administrator Michael Regan.
    \33\ As explained in this document in Section III.B., August 11, 
2022 SIP Submittal, North Dakota subsequently withdrew the Coal 
Creek Station NOX BART portion of this 2013 SIP submittal 
in a 2022 SIP submittal to the EPA that included a revised 
NOX BART determination for Coal Creek. The EPA is acting 
on the Coal Creek Station NOX BART portion of the 2013 
SIP submittal in a separate action.
    \34\ Antelope Valley Station.
---------------------------------------------------------------------------

B. August 11, 2022 SIP Submittal

    As part of its 2022 SIP submittal to address Regional Haze for the 
second planning period, North Dakota submitted a revised NOX 
BART analysis and determination for Coal Creek Units 1 and 2. 
Specifically, the submittal provides a source-specific NOX 
BART five-factor analysis for Coal Creek Units 1 and 2 to demonstrate 
that the existing LNC3+ NOX controls with emission limits of 
0.15 lb/MMBtu NOX on a 30-day rolling average satisfy the 
NOX BART requirements for those units for the first planning 
period. North Dakota submitted Coal Creek Permit to Construct # 
PTC21001 as part of its 2022 SIP submittal.\35\ The final permit was 
issued on July 27, 2022.\36\ North Dakota's 2022 SIP submittal also 
included an analysis to address the State's second planning period 
long-term strategy requirements; that portion of North Dakota's 2022 
SIP submittal will be addressed in separate action.
---------------------------------------------------------------------------

    \35\ North Dakota's 2022 SIP submittal, appendix F.2.
    \36\ Id.
---------------------------------------------------------------------------

C. North Dakota's NOX BART Determination

    For its NOX BART assessment for Coal Creek Units 1 and 
2, North Dakota considered the following control technologies: LNC3+, 
LNC3+ w/selective catalytic reduction (SCR), LNC3+ w/SNCR, Ultracat, 
catalytic filter bags, and ``mid-temperature'' SCR catalyst. 
Ultimately, North Dakota deemed Ultracat, catalytic filter bags, and 
``mid-temperature'' SCR catalyst to be technologically infeasible at 
Coal Creek Units 1 and 2. For LNC3+, LNC3+ w/SCR and LNC3+ w/SNCR, 
North Dakota relied on information provided by Great River Energy to 
conduct a source-specific NOX BART assessment though 
application of the five BART factors.\37\
---------------------------------------------------------------------------

    \37\ North Dakota's 2022 SIP submittal, section 8 and appendix 
B.4.b.
---------------------------------------------------------------------------

1. Costs of Compliance
    For the source-specific BART analysis associated with this action, 
North Dakota provided costs of compliance associated with the controls 
it deemed technologically feasible at Coal Creek Units 1 and 2 (LNC3+, 
LNC3+ w/SCR, and LNC3+ w/SNCR). North Dakota did not analyze Ultracat, 
catalytic filter bags, and ``mid-temperature'' SCR catalyst at Coal 
Creek Units 1 and 2 because they were deemed technologically 
infeasible. North Dakota's 2022 SIP submittal includes an updated 
analysis and evaluation for NOX BART at Coal Creek Units 1 
and 2 that was provided by Great River Energy.\38\ \39\ North Dakota 
relied on cost information from Great River Energy's analysis,\40\ but 
conducted its own cost analysis in appendix F. North Dakota's initial 
BART evaluation in its 2010 SIP submittal used actual emission rates 
from a 3-year period of emission inventory data from 2000 to 2002, the 
same time period that was used to determine the visibility 
baseline.\41\ North Dakota's updated BART analysis in the 2022 SIP 
submittal updates these emissions rates to reflect the operation of 
LNC3 with DryFiningTM. It also provides updates to the 
operating conditions and emissions performance

[[Page 66019]]

at Coal Creek Units 1 and 2.\42\ In the 2022 SIP submittal for 
NOX BART, North Dakota used Great River Energy's 
calculations of the 30-day average NOX emissions levels at 
Unit 2 from January 1, 2018 to July 31, 2019. The actual NOX 
emissions during this time frame averaged 0.127 lb/MMBtu (rounded to 
0.13 lb/MMBtu) with daily variability in NOX emissions 
between 0.10 and 0.19 lb/MMBtu. Great River Energy used this 0.13 lb/
MMBtu NOX rate as its performance emissions rate for the 
first option of BART controls (LNC3+), in the average cost-
effectiveness analysis.
---------------------------------------------------------------------------

    \38\ Id.
    \39\ Great River Energy retained Barr Engineering Co. (Barr) to 
complete an updated analysis and evaluation for NOX BART 
at Coal Creek Units 1 and 2.
    \40\ North Dakota's 2022 SIP submittal, appendix B.4.b.
    \41\ 76 FR 58582 (September 21, 2011).
    \42\ North Dakota's 2022 SIP submittal, appendix B.4.b.
---------------------------------------------------------------------------

    The cost of an emissions control measure is derived using capital 
and annual operation and maintenance costs. Cost effectiveness is 
analyzed in terms of control cost per ton of pollutant removed by the 
control. Cost/ton for a particular control technology is the difference 
in anticipated annual emissions using baseline emissions and expected 
annual emissions performance through installation of the additional 
retrofit control measure. In addition to the average cost effectiveness 
threshold for the BART evaluations, North Dakota also calculated an 
incremental cost effectiveness (cost effectiveness between two control 
measures) threshold.\43\
---------------------------------------------------------------------------

    \43\ North Dakota's 2022 SIP submittal, appendix B.4.b., section 
3.2.
---------------------------------------------------------------------------

    North Dakota analyzed LNC3+, SNCR, and SCR for average cost-
effectiveness and incremental cost-effectiveness in its updated BART 
analysis.\44\ The 2016-2018 three-year annual average data from LNC3 
(with DryFiningTM) on Unit 1 was used as the baseline 
performance rate in pounds of NOX per MMBtu for both units. 
In its incremental cost analysis, North Dakota considered the existing 
LNC3+ (installed on Unit 2 in 2010 and Unit 1 in 2020) \45\ by 
performing an incremental cost analysis looking at the standalone cost 
of implementing SNCR, the next most stringent control, relative to the 
existing LNC3+. North Dakota also performed an incremental cost 
analysis looking at the standalone cost of SCR relative to LNC3+. Per 
the EPA's BART guidelines, which advise that incremental costs should 
be calculated relative to the next most stringent control option,\46\ 
North Dakota also performed incremental cost analyses looking at the 
standalone cost of SCR relative to SNCR. The results of the average and 
incremental cost analyses can be seen in table 1:
---------------------------------------------------------------------------

    \44\ North Dakota's 2022 SIP submittal, appendix F.
    \45\ North Dakota's 2022 SIP submittal, section 8.3.
    \46\ 40 CFR part 51, appendix Y section IV.D.4.e.1.: ``The 
incremental cost effectiveness calculation compares the costs and 
performance level of a control option to those of the next most 
stringent option, as shown in the following formula (with respect to 
cost per emissions reduction): Incremental Cost Effectiveness 
(dollars per incremental ton removed) = (Total annualized costs of 
control option)-(Total annualized costs of next control option) / 
(Control option annual emissions)-(Next control option annual 
emissions).''

                                    Table 1--2022 SIP Submittal Cost of Compliance and Incremental Cost of Compliance
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Annualized                                      Incremental     Incremental
                                                            Performance      emission       Annualized        Cost of         cost of       cost of SCR
                   Control technology                       level (lb/       reduction    total cost ($)  compliance ($/  compliance ($/   over SNCR ($/
                                                              MMBtu)           (tpy)                           ton)            ton)            ton)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baseline, LNC3 with DryFining TM........................            0.18  ..............  ..............  ..............  ..............  ..............
LNC3+...................................................            0.13           1,162         793,418             683  ..............  ..............
LNC3+ w/SNCR............................................            0.10           1,850       6,194,244           3,348           7,850  ..............
LNC3+ w/SCR.............................................            0.08           2,309      16,122,491           6,983          13,368          21,645
LNC3+ w/SCR.............................................            0.06           2,767      17,391,169           6,284          10,339          12,206
--------------------------------------------------------------------------------------------------------------------------------------------------------

2. Energy and Non-Air Quality Environmental Impacts of Compliance
    North Dakota identified the production of sulfuric acid as a side 
reaction with the SCR process chemistry. Sulfuric acid, which is not 
captured within the boiler or associated downstream emission control, 
is released to the atmosphere as sulfuric acid mist (SAM). North Dakota 
noted that SAM is emitted as aerosol particles that contribute to 
visibility impairment.\47\ Because these emissions contribute to 
impairment, North Dakota considered the visibility impacts of SAM 
emissions in the analysis of visibility improvements from SCR and the 
costs of controlling SAM emissions in the SCR control cost analysis. 
Using the calculation procedures in a 2018 publication from Electric 
Power Research Institute, North Dakota estimated SAM emissions of 
approximately 415 tons per year per unit as a result of the SCR 
catalyst with a 5% oxidation rate at Coal Creek Station.\48\ North 
Dakota also noted that a low-dust SCR system would require a fuel-fired 
reheat burner system, which could result in additional energy usage and 
additional emissions of NOX and other pollutants.\49\ North 
Dakota estimated water demands for SNCR to be 70-80 million gallons per 
year.\50\ North Dakota noted the potential for ammonia slip as a result 
of these technologies, which could result in increased nitrogen in the 
scrubber, which would eventually be routed to evaporation ponds.\51\ 
Additionally, the Great River Energy BART analysis included an 
evaluation of potential adverse impacts of ammoniated fly ash.\52\ The 
report estimated that an additional 92,000 tons of fly ash would need 
to be disposed of in a landfill annually, which represents an 
additional 81 percent increase in fly ash disposal.\53\
---------------------------------------------------------------------------

    \47\ North Dakota's 2022 SIP submittal, appendix B.4.b., section 
3.3.
    \48\ Id.
    \49\ Id.
    \50\ Id.
    \51\ Id.
    \52\ Great River Energy commissioned Golder Associates and Boral 
Resources to evaluate the potential for adverse impacts of 
ammoniated fly ash. North Dakota's 2022 SIP submittal, appendix 
B.4.b.
    \53\ North Dakota's 2022 SIP submittal, appendix B.4.b.
---------------------------------------------------------------------------

3. Pollution Control Equipment at the Source
    North Dakota's Updated BART analysis takes into account existing 
controls, including DryFiningTM and other combustion 
controls. At the time of the initial BART modeling, LNC3 was 
operational on both Units 1 and 2. DryFiningTM became 
operational at Units 1 and 2 in 2010. LNC3+ became operational at Unit 
2 in 2010, and was installed on Unit 1 in the second quarter of 
2020.\54\ Though North Dakota did not incorporate LNC3+ into the 
baseline, the State did consider the existing LNC3+ by performing an 
incremental cost analysis looking at the standalone cost of 
implementing SNCR, the next most stringent control, relative to the 
existing

[[Page 66020]]

LNC3+. North Dakota also performed incremental analyses looking at the 
standalone cost of SCR relative to LNC3+. Per the EPA's BART 
guidelines, which advise that incremental costs should be calculated 
relative to the next most stringent control option,\55\ North Dakota 
also performed incremental cost analyses looking at the standalone cost 
of SCR relative to SNCR.
---------------------------------------------------------------------------

    \54\ North Dakota's 2022 SIP submittal, appendix F.1-2.
    \55\ 40 CFR part 51, appendix Y section IV.D.4.e.1.: ``The 
incremental cost effectiveness calculation compares the costs and 
performance level of a control option to those of the next most 
stringent option, as shown in the following formula (with respect to 
cost per emissions reduction): Incremental Cost Effectiveness 
(dollars per incremental ton removed) = (Total annualized costs of 
control option) - (Total annualized costs of next control option) / 
(Control option annual emissions) - (Next control option annual 
emissions).''
---------------------------------------------------------------------------

4. Remaining Useful Life
    Remaining useful life was not considered by North Dakota because 
Coal Creek is expected to operate beyond the life of the control 
equipment. Therefore, North Dakota evaluated the controls according to 
the remaining useful life timeframes listed in the EPA's Control Cost 
Manual: 30 years for SCR and 20 years for SNCR.\56\
---------------------------------------------------------------------------

    \56\ EPA Air Pollution Control Cost Manual, section 4--
NOX Controls, available at https://www.epa.gov/economic-and-cost-analysis-air-pollution-regulations/cost-reports-and-guidance-air-pollution (last visited December 2023).
---------------------------------------------------------------------------

5. Visibility Improvement
    North Dakota considered California Puff (CALPUFF) dispersion 
modeling conducted by Coal Creek to assess the potential visibility 
improvement from the use of additional NOX BART controls at 
the Lostwood and Theodore Roosevelt National Park Class I areas.\57\ 
Table 2 shows the baseline visibility impairment values associated with 
Modeling Scenario 1 (North Dakota's baseline scenario). Modeling 
Scenario 1 reflects emissions rates associated with the post-
SO2 BART approved controls (including 
DryFiningTM) and LNC3 controls for NOX. Table 3 
shows the projected incremental visibility impact of potential 
NOX BART controls on Units 1 and 2 in addition to the 
assumed baseline (Modeling Scenario 1). Modeling Scenario 2 considers 
the addition of LNC3+ to the baseline, Scenario 3 considers LNC3+ with 
the addition of SNCR, and Scenarios 4-6 consider LNC3+ with the 
addition of SCR at three different oxidation rates (5%, 2.5%, and 0%).
---------------------------------------------------------------------------

    \57\ Theodore Roosevelt National Park Class I area is comprised 
of three units: South Unit, North Unit, and Elkhorn Ranch Unit.

                      Table 2--Model Scenario 1 Baseline Visibility Impairment in Deciviews
----------------------------------------------------------------------------------------------------------------
                                    Theodore Roosevelt    Theodore Roosevelt    Theodore Roosevelt
               Year                   South Unit \58\         north unit        Elkhorn Ranch unit     Lostwood
----------------------------------------------------------------------------------------------------------------
2000.............................                  0.66                  0.65                  0.60         0.92
2001.............................                  0.47                  0.57                  0.53         0.87
2002.............................                  1.28                  1.15                  0.99         0.69
----------------------------------------------------------------------------------------------------------------


      Table 3--Coal Creek Station Incremental Visibility Impact of Modeling Scenarios 2-6 in Deciviews \59\
[Negative numbers indicate decreases in visibility impairment, positive numbers indicate increases in visibility
                                                   impairment]
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Modeling                       NOX control technology                Lostwood          Theodore Roosevelt
scenario
----------------------------------------------------------------------------------------------------------------
2....................             Addition of LNC3+                     -0.15  South Unit.......           -0.13
                                                                               North Unit.......           -0.12
                                                                               Elkhorn Ranch               -0.12
                                                                                Unit.
3....................        LNC3+ with addition of SNCR                -0.06  South Unit.......           -0.07
                                                                               North Unit.......           -0.09
                                                                               Elkhorn Ranch               -0.07
                                                                                Unit.
                      ----------------------------------------
4....................  LNC3+ with          5% Oxidation Rate.            0.17  South Unit.......            0.04
                        addition of                                            North Unit.......           -0.02
                        SCR.\60\                                               Elkhorn Ranch                0.00
                                                                                Unit.
5....................  LNC3+ with          2.5% Oxidation                0.01  South Unit.......           -0.07
                        addition of SCR.    Rate.                              North Unit.......           -0.11
                                                                               Elkhorn Ranch               -0.08
                                                                                Unit.
6....................  LNC3+ with          0% Oxidation Rate.           -0.14  South Unit.......           -0.17
                        addition of SCR.                                       North Unit.......           -0.21
                                                                               Elkhorn Ranch               -0.16
                                                                                Unit.
----------------------------------------------------------------------------------------------------------------

    The modeling results in table 3 show the visibility benefits of 
adding LNC3+ to the baseline (Scenario 2), and then the incremental, 
not total, visibility benefit of adding SNCR to the LNC3+ control 
scenario (Scenario 3) and SCR to the LNC3+ control scenario (Scenarios 
4-6). The ``total'' visibility benefit of LNC3+ plus SNCR can be 
derived by adding the deciview improvement values for Scenarios 2 plus 
3. And the ``total'' visibility benefit of LNC3+ plus SCR can be 
derived by adding the deciview improvement values for Scenarios 2 plus 
4, 2 plus 5, or 2 plus 6 respectively. Note that due to the assumption 
of 5% and 2.5% SO2 to SO3 oxidation rates in 
Scenarios 4 and 5, there are several instances of net increases in 
visibility impairment. Those are represented as positive values. North 
Dakota ultimately concluded that none of the NOX BART 
controls modeled were shown to have a ``significant'' impact on 
improving visibility in North Dakota's Class I areas.
---------------------------------------------------------------------------

    \58\ The Theodore Roosevelt National Park Class I area is 
composed of three separate units: South Unit, North Unit, and 
Elkhorn Ranch Unit. Projected visibility improvements in deciviews 
are shown for each unit.
    \59\ The EPA calculated these numbers from North Dakota's SIP 
Submission, appendix F.1-13, table 15.
    \60\ North Dakota also evaluated the incremental cost of LNC3+ 
w/SCR compared to LNC3+ w/SNCR (maximum incremental visibility 
improvement of 0.12 dv).

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

[[Page 66021]]

6. BART Demonstration
    After considering each of the five BART factors, States must 
demonstrate how those factors were taken into consideration in making a 
BART determination.\61\ After consideration of the five factors, North 
Dakota identified LNC3+ as BART for Coal Creek Units 1 and 2.\62\ Due 
to the inherent variability with shorter-term operations due to unit 
load swings and variable sodium concentrations in North Dakota lignite 
coal, North Dakota proposed a limit of 0.15 lb/MMBtu NOX 30-
day rolling average in lieu of the 0.13 lb/MMBtu NOX annual 
rate to account for this variability. North Dakota found that the other 
potential controls evaluated, SNCR and SCR, were not reasonable to 
select for BART due to high cost and the potentially significant non-
air quality impacts described in sections III.C.1. and III.C.2. 
above.\63\
---------------------------------------------------------------------------

    \61\ 40 CFR 51.308(e)(1)(ii)(A).
    \62\ North Dakota's 2022 SIP submittal, section 8 and appendix 
F.1-15.
    \63\ Id.
---------------------------------------------------------------------------

    In summary, North Dakota concluded that the BART analysis 
demonstrates that the currently installed NOX emissions 
controls (LNC3+) on Units 1 and 2 constitute NOX BART for 
Coal Creek Units 1 and 2. North Dakota rejected additional controls 
that were considered, citing cost, feasibility concerns, potential non-
air quality impacts, and low visibility improvements as the most 
influential factors in its rejection of additional controls.\64\ 
Therefore, North Dakota's 2022 SIP submittal requires emissions limits 
of 0.15 lb/MMBtu (30-day rolling average) associated with the operation 
of LNC3+ on Units 1 and 2 as the State's BART determination for Coal 
Creek.
---------------------------------------------------------------------------

    \64\ North Dakota's 2022 SIP submittal, appendix F.1-15.
---------------------------------------------------------------------------

D. January 12, 2015 Progress Report SIP Submittal

    On January 12, 2015, North Dakota submitted its 2015 progress 
report to the EPA as a SIP revision. Two Class I areas are located in 
North Dakota: Lostwood Wilderness Area and Theodore Roosevelt National 
Park. The Theodore Roosevelt National Park Class I area is composed of 
three separate units: North Unit, Elkhorn Ranch Unit, and South Unit. 
In the first planning period, emissions from North Dakota sources were 
also found to be contributing to visibility impairment at nearby 
Boundary Waters Canoe Area Wilderness Area and Voyageurs National Park 
in Minnesota, Isle Royale National Park and Seney National Wildlife 
Refuge Wilderness Area in Michigan, Medicine Lake National Wildlife 
Refuge Wilderness Area and U.L. Bend National Wildlife Refuge 
Wilderness Area in Montana, and Badlands National Park and Wind Cave 
National Park in South Dakota.\65\
---------------------------------------------------------------------------

    \65\ 76 FR 58570, 58579 (September 21, 2011).
---------------------------------------------------------------------------

    North Dakota consulted with other States through regular 
participation in the Western Regional Air Partnership (WRAP).\66\ In 
developing the 2015 progress report, North Dakota relied on the 
technical tools, policy documents, and other products that other WRAP 
States used to develop their regional haze plans. The WRAP 
Implementation Work Group was one of the primary collaboration 
mechanisms. Additionally, North Dakota consulted directly with the 
State of Minnesota through the Minnesota Pollution Control Agency. 
Discussions with neighboring States included the review of major 
contributing sources of air pollution.\67\
---------------------------------------------------------------------------

    \66\ The Western Regional Air Partnership (WRAP) is a 
collaborative effort of State governments, local air agencies, 
tribal governments, and various federal agencies established to 
initiate and coordinate activities associated with the management of 
regional haze, visibility, and other air quality issues in the 
Western United States. Members include the States of Alaska, 
Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New 
Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, 
Wyoming, and 28 tribal governments. The federal partner members of 
WRAP are the EPA, U.S. National Parks Service (NPS), U.S. Fish and 
Wildlife Service (USFWS), U.S. Forest Service (USFS), and the U.S. 
Bureau of Land Management (BLM).
    \67\ 76 FR 58629 (September 21, 2011).
---------------------------------------------------------------------------

    In the first planning period, the EPA required the following for 
BART: SO2 emissions limits for Coal Creek Units 1 and 2 and 
Heskett Station Units 1 and 2 \68\ as well as NOX emissions 
limits for Coyote Station Unit 1,\69\ Milton R. Young Units 1 and 
2,\70\ Leland Olds Station Unit 2,\71\ Stanton Station,\72\ and 
Antelope Valley Station Units 1 and 2,\73\ while the NOX 
BART requirements at Coal Creek Units 1 and 2 remained outstanding.
---------------------------------------------------------------------------

    \68\ 77 FR 20894 (April 26, 2018).
    \69\ Id.
    \70\ Id.
    \71\ Id.
    \72\ Id.
    \73\ 87 FR 19635 (April 5, 2022).
---------------------------------------------------------------------------

    North Dakota's 2015 progress report details the progress made in 
the first planning period toward implementation of the long-term 
strategy outlined in its 2010 SIP submittal, the visibility improvement 
measured at the Class I areas affected by emissions from North Dakota, 
and a determination of the adequacy of the State's existing regional 
haze SIP.

E. North Dakota's Five-Year Progress Report Determination

    In its 2015 Progress Report, North Dakota included a description of 
the status of implementation of the measures included in the first 
planning period implementation plan, including current emissions rates, 
BART and reasonable progress limits, and implementation dates.\74\ 
North Dakota also included a breakdown of its species contribution to 
impairment in both in-state and out-of-state Class I areas.\75\ 
Further, North Dakota included a list of emissions reductions that have 
occurred as a result of Regional Haze Round 1 SIP control 
requirements.\76\ North Dakota's first planning period implementation 
plan includes the following key measures: implementation of BART and 
reasonable progress for sources subject to this analysis and federal 
programs to cut on-road emissions and emissions from industrial 
boilers, combustion turbines, and internal combustion engines.\77\
---------------------------------------------------------------------------

    \74\ North Dakota's 2015 Progress Report, table 2.3.
    \75\ North Dakota's 2015 Progress Report, table 2.1 and table 
2.2.
    \76\ North Dakota's 2015 Progress Report, section 2.2.
    \77\ North Dakota's 2015 Progress Report, section 2.1 and table 
2.4 (MACT Standards).
---------------------------------------------------------------------------

    Additionally, North Dakota included an assessment of visibility 
conditions and changes on least-impaired days and most-impaired days 
for both Class I areas within the State (Lostwood Wilderness Area and 
Theodore Roosevelt National Park), including 5-year averages 
representing the most recent 5-year period preceding the required date 
of the progress report.\78\ North Dakota also showed the difference 
between current (at the time of progress report development) visibility 
conditions for the most impaired and least impaired days and baseline 
visibility conditions, as well as the change in visibility impairment 
for the most impaired and least impaired days over the period since the 
period addressed in the most recent plan.\79\ North Dakota compared the 
baseline average of visibility impairment to both an average from 2005-
2009 and an average from 2008-2012.\80\
---------------------------------------------------------------------------

    \78\ North Dakota's 2015 Progress Report, table 2.8.
    \79\ North Dakota's 2015 Progress Report, section 2.3.
    \80\ Id.
---------------------------------------------------------------------------

    Further, North Dakota included an analysis tracking the change over 
the period since the period addressed in the most recent plan in 
emissions of pollutants contributing to visibility impairment from all 
sources and activities within the State--these numbers are also broken 
down by

[[Page 66022]]

source category.\81\ Here, North Dakota included 2011 data, data from 
the most recent triennial reporting requirements as of the time of 
progress report development.\82\ Further, North Dakota also included 
2018 emissions projections to show additional progress that was 
expected to be achieved by the State by 2018.\83\
---------------------------------------------------------------------------

    \81\ North Dakota's 2015 Progress Report, section 2.4.
    \82\ Id.
    \83\ Id.
---------------------------------------------------------------------------

    North Dakota also included an assessment of changes in 
anthropogenic emissions within and outside of the State that have 
occurred since the period addressed in the most recent plan.\84\ Here, 
North Dakota noted that the most obvious source category where 
emissions have increased is in oil and natural gas production, due to 
increased development of the Bakken formation, an area in western North 
Dakota with rich oil and gas reserves.\85\ Within this sector, North 
Dakota notes that the pollutant with the largest increase is volatile 
organic compounds (VOC).\86\ North Dakota also notes an increase in 
NOX emissions in the oil and gas sector, though that 
increase (6,000 to 17,000 tpy) is outweighed by an approximate decrease 
of 32,000 tons of NOX per year on a statewide (all sectors) 
basis.\87\ North Dakota States that the increase in VOC and 
NOX emissions does not appear to be impacting ozone 
concentrations in Class I areas or any part of North Dakota.\88\ North 
Dakota points to a plan to reduce natural gas flaring in oil fields, 
which was adopted by the North Dakota Industrial Commission in April 
2014, as support for the expected reduction of NOX and 
VOC.\89\ North Dakota notes that this plan is expected to reduce the 
natural flaring rate of 36% of all gas produced to 15% in two years, 
10% within six years, and eventually to 5%.\90\ This reduction in 
flaring is expected to reduce NOX and VOC emissions. 
Considering these changes in emissions and expected reductions in 
NOX and VOC emissions due to a reduction in flaring, North 
Dakota concludes that there is no evidence at this time that the 
increase in oil and gas activity (or any other sector) in North Dakota 
is impeding progress towards the visibility goal.\91\
---------------------------------------------------------------------------

    \84\ North Dakota's 2015 Progress Report, section 2.5.
    \85\ Id.
    \86\ Id.
    \87\ Id.
    \88\ Id.
    \89\ Id.
    \90\ Id.
    \91\ Id.
---------------------------------------------------------------------------

    In its 2015 Progress Report, North Dakota includes an assessment of 
whether the current implementation plan elements are sufficient to 
enable North Dakota, and States with Class I areas impacted by North 
Dakota, to meet their reasonable progress goals for the first planning 
period.\92\ First, North Dakota noted that Theodore Roosevelt National 
Park had met its reasonable progress goals for the last five years at 
the time of development of the 2015 Progress Report.\93\ North Dakota 
also noted that Lostwood Wilderness Area had met its reasonable 
progress goals in the last 2 out of 3 years at the time of development 
of the 2015 Progress Report.\94\ North Dakota pointed to a decrease in 
SO2 and NOX emissions from the State that 
occurred from 2002 to 2011.\95\ Further, North Dakota notes that on the 
whole, visibility-impairing emissions were projected to decrease by 
2018. While NOX emissions are projected to increase by 
20,343 tons, SO2 emissions are projected to decrease by 
36,296 tons.\96\ This amounts to an overall reduction of 15,953 tpy of 
visibility-impairing pollutants by 2018.\97\ In sum, North Dakota 
determined that the existing implementation plan elements are 
sufficient to meet reasonable progress goals for both Theodore 
Roosevelt National Park and Lostwood Wilderness Area.\98\ North Dakota 
further noted that the decrease in visibility-impairing NOX 
and SO2 emissions from the State will also help out-of-state 
Class I areas meet their reasonable progress goals.\99\ As noted 
earlier in this section, the main increase in emissions during the 
period covered by the 2015 Progress Report occurred as an increase in 
NOX and VOC emissions in the oil and gas sector.\100\ North 
Dakota notes that these pollutants are typically emitted at lower 
elevations and produce a more localized impact.\101\ To assess impacts 
on its nearest out-of-state Class I area (Medicine Lake Wilderness Area 
in Montana), North Dakota compared Medicine Lake to nearby Lostwood 
Wilderness Area, noting that both Class I areas are upwind from North 
Dakota oil and gas sources and are thus unlikely to be impeded from 
meeting reasonable progress goals due to emissions from North 
Dakota.\102\ North Dakota ultimately concluded that its emissions will 
not impede the achievement of reasonable progress goals in in-state or 
out-of-state Class I areas.\103\
---------------------------------------------------------------------------

    \92\ North Dakota's 2015 Progress Report, section 2.6.
    \93\ North Dakota's 2015 Progress Report, section 2.6 and table 
2.8.
    \94\ Id.
    \95\ North Dakota's 2015 Progress Report, table 2.16.
    \96\ Id.
    \97\ Id.
    \98\ North Dakota's 2015 Progress Report, section 2.6.
    \99\ Id.
    \100\ North Dakota's 2015 Progress Report, section 2.5.
    \101\ Id.
    \102\ North Dakota's 2015 Progress Report, section 2.6.
    \103\ Id.
---------------------------------------------------------------------------

    North Dakota also included an assessment of its visibility 
monitoring strategy. North Dakota stated that it relies on the 
Interagency Monitoring of Protected Visual Environments (IMPROVE) 
program for its monitoring strategy.\104\ North Dakota concluded that 
there is no change needed to the monitoring strategy at the time the 
2015 progress report was developed.\105\ North Dakota included a 
determination of the adequacy of its existing implementation plan, 
concluding that based on the information provided in North Dakota's 
2015 Progress Report, the existing implementation plan is sufficient to 
achieve established goals for visibility improvement and emissions 
reduction.\106\ Lastly, North Dakota noted that it provided an 
opportunity for consultation with FLMs with regard to the 2015 Progress 
Report on June 25, 2014 by providing FLMs a copy of the 2015 Progress 
Report. The 2015 Progress Report was distributed to the National Park 
Service, the U.S. Fish and Wildlife Service, and the U.S. Forest 
Service. The National Park Service and the U.S. Forest Service provided 
comments on the progress report.\107\ North Dakota documented this 
consultation in its 2015 Progress Report submittal.\108\
---------------------------------------------------------------------------

    \104\ North Dakota's 2015 Progress Report, section 2.7.
    \105\ Id.
    \106\ Id.
    \107\ North Dakota's 2015 Progress Report, section 3.
    \108\ North Dakota's 2015 Progress Report, section 4.
---------------------------------------------------------------------------

IV. The EPA's Evaluation and Proposed Approval of North Dakota's NOX 
BART Determination for Coal Creek Station Units 1 and 2

    The EPA is proposing to approve North Dakota's regional haze SIP 
submittal for the NOX BART determination for Coal Creek 
Units 1 and 2. In our analysis of North Dakota's 2022 SIP submittal, we 
evaluated North Dakota's BART determination for Coal Creek Units 1 and 
2 under CAA section 169A, 40 CFR 51.308(e)(1)(ii)(A), and 40 CFR part 
51, appendix Y. Under these requirements, a State must consider the 
following five factors and include a

[[Page 66023]]

demonstration of how they were taken into consideration in making a 
BART determination:
     costs of compliance;
     energy and non-air quality environmental impacts of 
compliance;
     existing pollution control equipment in use at the source;
     remaining useful life of any potentially affected sources; 
and
     visibility improvement anticipated to result from 
controls.
    The State must consider these five factors in making BART 
determinations for a specific source.\109\ While States have discretion 
to consider these five factors, this discretion must be ``reasonably 
exercised, and must be supported by adequate documentation of the 
analyses.'' \110\
---------------------------------------------------------------------------

    \109\ CAA section 169A(b)(2)(A), CAA section 169 A(g)(2), and 40 
CFR part 51, appendix Y.
    \110\ ``Regional Haze Regulations and Guidelines for Best 
Available Retrofit Technology (BART) Determinations'' (BART 
Guidelines) at 70 FR 39138 at 39,138 (July 6,2005).
---------------------------------------------------------------------------

A. Basis of the EPA's Proposed Approval

    The EPA is proposing to approve the portion of North Dakota's 2022 
SIP submittal relating to the updated NOX BART determination 
for Coal Creek Units 1 and 2, finding that LNC3+ at 0.15 lb/MMBtu (30-
day rolling average) constitutes BART for these units. As an initial 
matter, we find that the State reasonably characterized the five 
factors required in a BART analysis, including the costs of compliance, 
energy and non-air quality environmental impacts of compliance, 
pollution control equipment at the source, the remaining useful life of 
any potentially affected sources, and visibility improvement 
anticipated to result from controls. The EPA also finds that North 
Dakota's revised cost calculation is appropriate, including: (1) the 
use of LNC3 with DryFiningTM as a baseline control 
technology in cost analysis; (2) the use of baseline NOX 
emissions rates of 0.18 lb/MMBtu for both units based on three-year 
annual average data of LNC3 operation on Unit 1; (3) and the use of 
amortization periods of 20 and 30 years for SNCR and SCR, respectively. 
We find that the State reasonably considered that information, as well 
as each of the five BART factors, in reaching its revised 
NOX BART determination. After consideration of all five of 
these factors, we propose to approve the State's determination that 
LNC3+ at a rate of 0.15lb/MMBtu (30-day rolling average) constitutes 
NOX BART for Coal Creek Units 1 and 2.
1. Costs of Compliance
    To evaluate North Dakota's updated BART analysis for Coal Creek 
Units 1 and 2 with respect to the cost of compliance, we first evaluate 
North Dakota's selection of baseline control technology and associated 
emission rates for analysis. Next, we evaluate North Dakota's 
characterization of the costs using the updated Control Cost Manual. 
Finally, we evaluate the reasonableness of the costs that North Dakota 
associated with the installation of LNC3+, LNC3+ w/SNCR, and LNC3+ w/
SCR on Units 1 and 2 with respect to average and incremental cost-
effectiveness, and the State's explanation for why requiring LNC3+ w/
SNCR and LNC3+ w/SCR on Units 1 and 2 is unreasonable.
i. North Dakota's Selection of Baseline Emission Rates
    Both Coal Creek Units 1 and 2 utilize ``low NOX coal-
and-air nozzles with close-coupled and separated overfire air,'' which 
is referred to as LNC3. Coal Creek installed additional NOX 
controls (LNC3+) \111\ on Unit 2 in 2010 and on Unit 1 in 2020. The 
2016-2018 three-year annual average data from LNC3 (with 
DryFiningTM) on Unit 1 was used as the baseline performance 
rate in pounds of NOX per MMBtu for both units. According to 
North Dakota, this approach is consistent with the EPA's responses to 
comments about anticipated controls at Coal Creek on the EPA's 2012 FIP 
for North Dakota, where the EPA stated that potential control options 
are evaluated ``based on baseline conditions, not on ongoing revisions 
to a facility after the baseline period'', and that ``It is not 
reasonable to consider controls installed after the baseline period in 
determining BART'' because ``Such an approach would tend to lead to 
higher cost effectiveness values for more effective controls and 
encourage sources to voluntarily install lesser controls to avoid 
installing more effective BART controls later''.\112\
---------------------------------------------------------------------------

    \111\ LNC3+ is defined by modified and additional separated 
overfire air (SOFA), close-coupled overfire air (COFA), and low 
NOX burners (LNB).
    \112\ Id.
---------------------------------------------------------------------------

    North Dakota further noted that because the annual average 
NOX performance rate from 2002 through 2006 in lb/MMBtu for 
Units 1 and 2 was 0.22 and 0.23, respectively, the similarity of this 
five-year average supports the notion that Unit 1 and Unit 2 operate 
nearly identically with similar controls.\113\ According to North 
Dakota, the differences in performance rates between Unit 1 and Unit 2 
since that time period can be attributed to the installation of LNC3+ 
on Unit 2 in 2010. The EPA finds that this information supports the use 
of a baseline rate of 0.18 lb/MMBtu for both Units 1 and 2 that is 
representative of historical operation at Unit 1. Though North Dakota 
did not incorporate all existing controls into the baseline, the State 
did consider the existing LNC3+ by performing an incremental cost 
analysis looking at the standalone cost of implementing SNCR, the next 
most stringent control, relative to the existing LNC3+. North Dakota 
also performed incremental analyses looking at the standalone cost of 
SCR relative to LNC3+. Per the EPA's BART guidelines, which advise that 
incremental costs should be calculated relative to the next most 
stringent control option,\114\ North Dakota also performed incremental 
cost analyses looking at the standalone cost of SCR relative to SNCR. 
Based on this information, the EPA finds that North Dakota selected an 
appropriate baseline rate and adequately considered the existing 
controls at Coal Creek in its cost analysis.
---------------------------------------------------------------------------

    \113\ North Dakota's 2022 SIP submittal, appendix F.1-3.
    \114\ ``40 CFR part 51, appendix Y section IV.D.4.e.1.: ``The 
incremental cost effectiveness calculation compares the costs and 
performance level of a control option to those of the next most 
stringent option, as shown in the following formula (with respect to 
cost per emissions reduction): Incremental Cost Effectiveness 
(dollars per incremental ton removed) = (Total annualized costs of 
control option)-(Total annualized costs of next control option) / 
(Control option annual emissions)-(Next control option annual 
emissions).''
---------------------------------------------------------------------------

ii. North Dakota's Characterization of Costs Using the Control Cost 
Manual
    The revised NOX control cost estimates in the BART 
portion of North Dakota's 2022 SIP submittal are based on the current 
version of the EPA's Control Cost Manual, which has been revised since 
the first planning period. As updated, the Control Cost Manual includes 
a 30-year equipment life for SCR.\115\ The change in equipment life 
estimate from 20 to 30 years for SCR affects annual cost estimates, as 
well as average cost-effectiveness and incremental cost-effectiveness 
estimates. The Control Cost Manual also includes a 20-year equipment 
life for SNCR.\116\ We find North Dakota's use of the

[[Page 66024]]

updated Control Cost Manual appropriate.
---------------------------------------------------------------------------

    \115\ The EPA, ``Control Cost Manual,'' section 4, Chapter 2, 
June 2019, page 80, available at https://www.epa.gov/economic-and-cost-analysis-air-pollution-regulations/cost-reports-and-guidance-air-pollution (last visited December 2023).
    \116\ The EPA, ``Control Cost Manual,'' section 4, Chapter 1, 
April 2019, page 54, available at https://www.epa.gov/economic-and-cost-analysis-air-pollution-regulations/cost-reports-and-guidance-air-pollution (last visited December 2023).
---------------------------------------------------------------------------

    In its updated BART submission, North Dakota provided updated 
capital costs, annual costs, and average cost-effectiveness figures for 
LNC3+, LNC3+ w/SNCR, and LNC3+ w/SCR.\117\ In cost-effectiveness 
calculations, North Dakota used a 5.25% interest rate,\118\ which was 
the bank prime rate at the time the 2022 SIP submittal was in 
development (2018). North Dakota's use of the bank prime rate in 
control cost analyses follows the EPA's Control Cost Manual.\119\
---------------------------------------------------------------------------

    \117\ North Dakota's 2022 SIP submittal, appendix F.1-7.
    \118\ North Dakota's 2022 SIP submittal, appendix B.4.b.
    \119\ The EPA, ``Control Cost Manual,'' section 1, Chapter 2, 
November 2017, page 15, available at https://www.epa.gov/economic-and-cost-analysis-air-pollution-regulations/cost-reports-and-guidance-air-pollution (last visited December 2023).
---------------------------------------------------------------------------

    North Dakota also included incremental cost-effectiveness figures 
for LNC3+ w/SNCR and LNC3+ w/SCR.\120\ The BART Guidelines instruct 
that States can evaluate both average and incremental costs according 
to the Control Cost Manual to maintain and improve consistency.\121\ 
These figures take into account capital and annual costs and allow 
States and the EPA to compare costs of controls industry-wide. The BART 
Guidelines further caution against considering in isolation the capital 
costs of a control option, as large or small capital costs alone are 
not dispositive of the reasonableness of a potential control.\122\ 
Thus, we consider the average and incremental cost-effectiveness 
figures to be most relevant to our consideration of North Dakota's 
revised BART cost analysis.
---------------------------------------------------------------------------

    \120\ Id.
    \121\ 40 CFR part 51, appendix Y section IV.D.4.
    \122\ Id.
---------------------------------------------------------------------------

iii. Costs Associated With the Installation of New Controls
    In the revised cost analysis for the BART portion of the 2022 SIP 
submittal, North Dakota's cost estimates show an average cost-
effectiveness for LNC3+ for Coal Creek Units 1 and 2 of $683/ton of 
NOX removed.\123\ Based on North Dakota's estimates, the 
cost of LNC3+ is cost-effective.\124\ In our evaluation of North 
Dakota's 2013 SIP submittal, the EPA found an average value of $629/ton 
of NOX removed based on LNC3+ installation at Antelope 
Valley Station Units 1 and 2 to be cost-effective, and we approved the 
State's NOX BART determination for those sources in a final 
rule issued in 2022.\125\ Thus, the revised average cost-effectiveness 
value for LNC3+ on Coal Creek Units 1 and 2 in North Dakota's updated 
BART analysis is similar in cost to what North Dakota determined was 
cost-effective for a similar lignite coal facility in 2013. The EPA 
agrees with North Dakota that LNC3+ is cost effective for Coal Creek 
Units 1 and 2.
---------------------------------------------------------------------------

    \123\ See table 1 in this document. See also North Dakota's 2022 
SIP submittal, appendix F.1-7.
    \124\ Id. North Dakota did not determine this cost to be 
unreasonable. Indeed, this cost-effectiveness value is in line 
with--and in some cases well below--the cost-effectiveness values 
the EPA and States found reasonable for regional haze control 
measures in the first planning period, even without adjusting for 
inflation. After evaluating first planning period cost of compliance 
values, plus the other BART statutory factors and/or the four 
reasonable progress statutory factors, the vast majority of cost/ton 
values <$2,500/ton were found to be reasonable and cost-effective. 
This includes control determinations for sources both within North 
Dakota and in other States. Examples for several sources can be 
found at: 76 FR 16168, 16180-81, (Mar. 22, 2011 (proposed); 
finalized at 76 FR 81728 (Dec. 28, 2011) (Oklahoma); 76 FR 58570, 
58586 (Sept. 21, 2011) (proposed); finalized at 77 FR 20894 (Apr 4, 
2012) (North Dakota); 77 FR 24794, 24817 (Apr. 25, 2012) (proposed); 
finalized at 77 FR 51915 (Aug. 29, 2012) (New York); and 77 FR 
18052, 18070 (Mar. 26, 2012) (proposed); finalized at 77 FR 76871 
(Dec. 12, 2012) (Colorado); and 77 FR 73369, 73378 (Dec. 10, 2012) 
(proposed); finalized at 78 FR 53250 (Aug. 29, 2013) (Florida). The 
cited costs have not been adjusted for inflation.
    \125\ See Proposal 86 FR 14,055 (Mar. 12, 2021); Final 87 FR 
19635 (April 5, 2022).
---------------------------------------------------------------------------

    Next, North Dakota analyzed the cost-effectiveness of LNC3+ w/SNCR. 
North Dakota's cost estimates show an average cost-effectiveness for 
LNC3+ w/SNCR for Units 1 and 2 of $3,348/ton of NOX 
removed.\126\ North Dakota's cost estimates also show an incremental 
cost-effectiveness for LNC3+ w/SNCR for Units 1 and 2 of $7,850 per ton 
of NOX removed relative to the next-most-stringent control 
(LNC3+).\127\ North Dakota's decision to reject LNC3+ w/SNCR is based 
on its consideration of incremental cost. The EPA believes that both 
average and incremental costs provide information useful for making 
control determinations. The BART Guidelines explain how average and 
incremental costs may be used in an analysis to choose between two 
available control devices.\128\
---------------------------------------------------------------------------

    \126\ See table 1 in this document. See also North Dakota's 2022 
SIP submittal, appendix F.1-7.
    \127\ Id.
    \128\ 40 CFR part 51, appendix Y section IV.D.4.e.5.: ``The 
average cost (total annual cost/total annual emission reductions) 
for each may be deemed to be reasonable. However, the incremental 
cost (total annual costA-B/total annual emission 
reductionsA-B) of the additional emission reductions to 
be achieved by control B may be very great. In such an instance, it 
may be inappropriate to choose control B, based on its high 
incremental costs, even though its average cost may be considered 
reasonable.''.
---------------------------------------------------------------------------

    Though the average cost-effectiveness value that North Dakota 
evaluated for LNC3+ w/SNCR of $3,348/ton of NOX removed is 
in line with average cost-effectiveness values that States and the EPA 
found reasonable in first planning period BART actions,\129\ and the 
visibility benefits of LNC3+ w/SNCR are not insignificant, we find that 
it was reasonable for North Dakota to determine that the relatively 
small incremental visibility benefits from adding SNCR (incremental 
visibility improvement ranging from 0.06-0.09 dv) \130\ do not warrant 
selection of LCN3+ w/SNCR in light of the incremental cost of that 
control over LNC3+ ($7,850 per ton of NOX removed). In a 
2016 approval of a source-specific revision to the Arizona first 
planning period SIP that addressed BART requirements at Cholla 
Generating Station (Cholla), the EPA approved Arizona's determination 
that LNB+SOFA+SNCR was not required based on an incremental visibility 
improvement of 0.07 dv and an incremental cost of $6,989-7,091/ton 
compared to LNB+SOFA, the control Arizona selected for BART.\131\ The 
average cost associated with the addition of LNB+SOFA+SNCR was around 
$3,000-3,200/ton.\132\ The EPA explained:
---------------------------------------------------------------------------

    \129\ These cost-effectiveness values are in line with those the 
EPA and States found reasonable for regional haze control measures 
adopted in the first planning period, even without adjusting for 
inflation. After evaluating first planning period cost of compliance 
values, plus the other BART statutory factors and/or the four 
reasonable progress statutory factors, States and the EPA found 
numerous instances of cost-effectiveness values up to and sometimes 
higher than $4,500/ton to be reasonable and cost effective. This 
includes control determinations for sources within North Dakota and 
in other States. Examples for several sources can be found at: 76 FR 
16168, 16181, (Mar. 22, 2011) (proposed rule); finalized at 76 FR 
81728 (Dec. 28, 2011) (Oklahoma); 76 FR 58570, 58587-88, (Sept. 21, 
2011) (proposed); finalized at 77 FR 20894 (Apr. 6, 2012) (North 
Dakota); 77 FR 11022, 11033, (Feb. 14, 2013) (proposed); finalized 
at 78 FR 10546 (Feb. 14, 2013) (Alaska); and 79 FR 5032, 5038 (Jan. 
30, 2014) (Wyoming) (final rule). The cited costs have not been 
adjusted for inflation.
    \130\ Incremental visibility improvement is the visibility 
improvement between two control options. In this case, it is the 
visibility improvement of adding LNC3+ w/SNCR versus LNC3+ alone.
    \131\ 81 FR 46852, 46861-2 (Jul. 19, 2016 (proposed); finalized 
at 82 FR 15139 (Mar. 27, 2011).
    \132\ Id.

    With regard to SNCR, we find that it was reasonable for 
[Arizona] to conclude that the costs of SNCR were not warranted by 
the visibility benefits. In particular, with regard to costs, we are 
not aware of any instance in which the EPA has determined SNCR to be 
BART where the average cost-effectiveness of SNCR was greater than 
$3,000/ton and the incremental cost-effectiveness was roughly 
$7,000/ton, as is the case with Cholla Units 3 and 4. Similarly, we 
are not aware of any instance in which the EPA has disapproved a 
state's BART determination that rejected

[[Page 66025]]

SNCR as BART based on similar cost-effectiveness values.\133\
---------------------------------------------------------------------------

    \133\ Id.

    In its 2022 SIP revision, North Dakota finds the selection of LNC3+ 
w/SNCR to be unwarranted based on an average cost-effectiveness of 
$3,348/ton, an incremental cost-effectiveness of $7,850/ton, and 
incremental visibility improvement ranging from 0.06-0.09 dv compared 
to LNC3+ alone.\134\ These cost and visibility numbers are very similar 
to those evaluated in the EPA's 2016 action approving Arizona's BART 
determination that LNB+SOFA+SNCR was unwarranted at Cholla Units 3 and 
4.
---------------------------------------------------------------------------

    \134\ North Dakota's 2022 SIP revision, appendix F.1-13, table 
15.
---------------------------------------------------------------------------

    Thus, the EPA finds that it was reasonable for North Dakota to 
conclude that the incremental visibility benefits of LNC3+ w/SNCR over 
LNC3+ alone do not warrant selection of LNC3+ w/SNCR given its 
incremental cost over LNC3+.
    Lastly, North Dakota analyzed the cost-effectiveness of LNC3+ w/
SCR. North Dakota evaluated cost-effectiveness under two different 
control efficiencies: 0.08 lb/MMBtu NOX and 0.06 lb/MMBtu 
NOX removed. North Dakota's cost estimates show an average 
cost-effectiveness for Units 1 and 2 of $6,983/ton of NOX 
removed (0.08 lb/MMBtu rate) and $6,284/ton of NOX removed 
(0.06 lb/MMBtu rate).\135\ North Dakota's cost estimates show an 
incremental cost-effectiveness for LNC3+ w/SCR compared to LNC3+ for 
Units 1 and 2 of $13,368/ton of NOX removed (0.08 lb/MMBtu 
rate) and $10,339/ton of NOX removed (0.06 lb/MMBtu 
rate).\136\ North Dakota's cost estimates also show an incremental 
cost-effectiveness for LNC3+ w/SCR for Units 1 and 2 of $21,645/ton of 
NOX removed (0.08 lb/MMBtu rate) and $12,206/ton of 
NOX removed (0.06 lb/MMBtu rate), relative to the next-most-
stringent control (LNC3+ w/SNCR).\137\ Because both the average and 
incremental costs in this instance are above the costs previously 
approved as cost-effective for BART,\138\ the EPA finds that North 
Dakota reasonably concluded, based on its analysis of average and 
incremental costs, that LNC3+ w/SCR is not cost-effective.
---------------------------------------------------------------------------

    \135\ See table 1 in this document. See also North Dakota's 2022 
SIP submittal, appendix F.1-7.
    \136\ Id.
    \137\ Id.
    \138\ The EPA is not aware of any instance in which the EPA has 
determined SCR to be BART where the average cost-effectiveness of 
SCR was greater than $6,000/ton and the incremental cost-
effectiveness was greater than $10,000/ton, as is the case with Coal 
Creek Units 1 and 2.
---------------------------------------------------------------------------

    In summary, the EPA finds that North Dakota's consideration of 
costs of compliance is reasonable and consistent with the Control Cost 
Manual, the BART Guidelines, EPA guidance, and the EPA's reasoning in 
other first planning period BART actions. Specifically, the EPA finds 
that: (1) LNC3+ is a reasonable cost control based on the circumstances 
of this SIP submittal; (2) the incremental visibility benefits of LNC3+ 
w/SNCR over LNC3+ alone (incremental visibility improvement ranging 
from 0.06-0.09 dv) do not warrant selection of LNC3+ w/SCNR given its 
incremental cost compared to LNC3+ ($7,850 per ton of NOX 
removed); and (3) the average and incremental cost-effectiveness values 
for installing LNC3+ w/SCR are not cost-effective. Based on inherent 
monthly variabilities in NOX rate performance for LNC3+, 
including the likelihood of variability in rates due to changes in unit 
load to meet electricity needs, the EPA finds that North Dakota's 
proposed limit of 0.15 lb/MMBtu NOX on a 30-day rolling 
average \139\ for Coal Creek Units 1 and 2 is appropriate and provides 
for reasonable monthly variability.
---------------------------------------------------------------------------

    \139\ The BART Guidelines State that any enforceable limits 
associated with BART EGUs should be set as a 30-day rolling average. 
40 CFR part 51, appendix Y section V. The BART Guidelines expressly 
apply to Coal Creek because it is an EGU with a total generating 
capacity greater than 750 MW: 40 CFR part 51, appendix Y section 
I.F.1.
---------------------------------------------------------------------------

2. Energy and Non-Air Quality Impacts of Compliance
    North Dakota considered a variety of energy and non-air quality 
impacts. For SCR control technology, North Dakota noted visibility 
impacts from SAM emissions and additional energy use and emissions of 
pollutants associated with low dust SCR systems. For SNCR, North Dakota 
estimated that the control technology would require 70-80 million 
gallons of water per year,\140\ would result in an estimated 92,000 
tons of fly ash disposal,\141\ and potentially produce pollution from 
ammonia slip.\142\ North Dakota supported its assessments with its own 
analysis and commissioned a study to evaluate the potential for adverse 
impacts of from ammoniated fly ash. North Dakota did not disqualify SCR 
or SNCR as reasonable control technologies based on the energy and non-
air quality impacts of compliance.
---------------------------------------------------------------------------

    \140\ North Dakota's 2022 SIP revision, appendix B.4.b.
    \141\ Id.
    \142\ Id.
---------------------------------------------------------------------------

    North Dakota's consideration of energy and non-air quality impacts 
satisfies the BART Guidelines in that it provides some additional 
support for North Dakota's decision to reasonably rule out SCR and SNCR 
based on cost.
3. Pollution Control Equipment at the Source
    As described in section III.C.3. and section IV.A.1.i. of this 
document, North Dakota's BART analysis in the 2022 SIP submittal 
considered existing controls on Coal Creek Units 1 and 2, including 
DryFiningTM and other combustion controls. Though North 
Dakota did not incorporate all existing controls into the baseline for 
its average cost-effectiveness analysis, the State did consider 
existing controls by performing an incremental cost-effectiveness 
analysis looking at the standalone cost of implementing SNCR, the next 
most stringent control, relative to the existing LNC3+ (which includes 
DryFining, a voluntarily installed control technology). North Dakota 
also performed incremental cost analyses looking at the standalone cost 
of SCR relative to the existing control of LNC3+. Per the EPA's BART 
Guidelines, which advise that incremental costs should be calculated 
relative to the next most stringent control option,\143\ North Dakota 
also performed incremental cost analyses looking at the standalone cost 
of SCR relative to SNCR.
---------------------------------------------------------------------------

    \143\ 40 CFR part 51, appendix Y section IV.D.4.e.1.: ``The 
incremental cost effectiveness calculation compares the costs and 
performance level of a control option to those of the next most 
stringent option, as shown in the following formula (with respect to 
cost per emissions reduction): Incremental Cost Effectiveness 
(dollars per incremental ton removed) = (Total annualized costs of 
control option)-(Total annualized costs of next control option) / 
(Control option annual emissions)-(Next control option annual 
emissions).''
---------------------------------------------------------------------------

    North Dakota's approach of including voluntary existing controls in 
its evaluation of the BART factor ``any existing pollution control 
technology in use at the source'' is consistent with the Eighth 
Circuit's decision in North Dakota.\144\ The Eighth Circuit found that 
use of the word ``any'' has an expansive meaning and includes 
consideration of voluntarily installed controls as part of the BART 
factor ``any existing pollution control technology in use at the 
source.'' \145\ Based on this, the EPA finds that North Dakota 
adequately considered any existing controls at Coal Creek in its BART 
determination.
---------------------------------------------------------------------------

    \144\ See North Dakota, 730 F.3d at 762-63.
    \145\ See North Dakota, 730 F.3d at 764.
---------------------------------------------------------------------------

4. Remaining Useful Life of Any Potentially Affected Sources
    North Dakota's 2022 SIP submittal notes that Coal Creek is expected 
to operate beyond the life of the control equipment evaluated for BART. 
North Dakota considered remaining useful life as an element of its cost 
analysis and applied the timeframes of 30 years for

[[Page 66026]]

SCR and 20 years for SNCR from the EPA's Control Cost Manual.\146\
---------------------------------------------------------------------------

    \146\ EPA Air Pollution Control Cost Manual, section 4--
NOX Controls, available at https://www.epa.gov/economic-and-cost-analysis-air-pollution-regulations/cost-reports-and-guidance-air-pollution (last visited December 2023).
---------------------------------------------------------------------------

    The BART Guidelines advise that States ``may decide to treat the 
requirement to consider the source's `remaining useful life' of the 
source for BART determinations as one element of the overall cost 
analysis. The `remaining useful life' of a source, if it represents a 
relatively short time period, may affect the annualized costs of 
retrofit controls.'' \147\ The BART Guidelines further advise that if 
the remaining useful life of the source clearly exceeds the time period 
for amortization, ``the remaining useful life has essentially no effect 
on control costs and on the BART determination process.'' \148\ If the 
remaining useful life of the source is less than the time period for 
amortizing the costs of the retrofit control, States may use the 
shorter time period in cost calculations.\149\
---------------------------------------------------------------------------

    \147\ 40 CFR part 51, appendix Y section IV.D.4.k.1.
    \148\ Id.
    \149\ Id.
---------------------------------------------------------------------------

    Even though North Dakota expects Coal Creek to operate beyond the 
life of the control equipment, the State chose to apply in its cost 
analyses the shorter timeframes of 30 years for SCR and 20 years for 
SNCR recommended in the EPA's Control Cost Manual.\150\ For this 
reason, the EPA finds that North Dakota satisfactorily considered this 
factor.
---------------------------------------------------------------------------

    \150\ North Dakota's 2022 SIP submittal, appendix F.1-9.
---------------------------------------------------------------------------

5. Visibility Improvement Anticipated To Result From Controls
    North Dakota considered CALPUFF dispersion modeling conducted by 
Coal Creek to assess the potential visibility improvement from the use 
of additional NOX BART controls. The EPA's BART Guidelines 
advise that for the purposes of assessing the degree of improvement in 
visibility from various BART control levels for a BART determination, 
States may use CALPUFF modeling using source-specific and site-specific 
data.\151\ The BART Guidelines further advise that if expected 
improvement is shown from the various control choices, the State can 
weigh the results with the other four BART determination factors when 
establishing BART for a particular source.\152\
---------------------------------------------------------------------------

    \151\ 40 CFR part 51, appendix Y section IV.D.5.
    \152\ 40 CFR part 51, appendix Y section IV.E.5.
---------------------------------------------------------------------------

    Table 2 in section III.C.5. of this document displays North 
Dakota's modeled average combined 98th percentile deciview improvement 
from 2000-2002 for Coal Creek Station Unit 1 and Unit 2. The modeling 
indicates that in general, there is an incremental improvement in 
deciview reductions for each increasingly stringent control technology 
option. For LNC3+ w/SNCR, the largest modeled deciview improvement 
(compared to Modeling Scenario 1) for Theodore Roosevelt National Park 
was 0.21, and for Lostwood was 0.21, with incremental visibility 
improvement from the addition of SNCR ranging from 0.06-0.09 dv 
(compared to LNC3+ alone). As noted in section IV.A.1.iii. of this 
document, the EPA finds that the incremental visibility benefits of 
LNC3+ w/SNCR over LNC3+ alone do not warrant selection of LNC3+ w/SNCR 
given its incremental cost compared to LNC3+. For LNC3+ w/SCR 5% 
SO2 to SO3 oxidation rate, the largest modeled 
deciview improvement for Theodore Roosevelt National Park was 0.14 
compared to the Modeling Scenario 1. Notably, for LNC3+ w/SCR 5% 
SO2 to SO3 oxidation rate, the modeling indicated 
a decrease in deciview improvement for Lostwood at -0.02 deciviews 
compared to the Modeling Scenario 1. North Dakota's assessment of the 
modeling data was that none of the NOX BART controls were 
shown to have a significant impact on improving visibility in North 
Dakota's Class I areas. Considering the modeled overall and incremental 
visibility improvements (visibility improvement between two contr ol 
measures) associated with installation of LNC3+ w/SCR versus LNC3+ 
alone (maximum incremental improvement of 0.21 dv) \153\ and LNC3+ w/
SCR versus LNC3+ w/SNCR (maximum incremental improvement of 0.12 dv) 
\154\ and in light of the incremental costs described in section 
IV.A.1. of this document, the EPA agrees that LNC3+ w/SCR is not 
warranted.
---------------------------------------------------------------------------

    \153\ North Dakota's 2022 SIP revision, appendix F.1-13, table 
15.
    \154\ Id.
---------------------------------------------------------------------------

    Because North Dakota conducted the modeling in accordance with the 
BART Guidelines and reasonably concluded that the difference in 
visibility improvements between installing LNC3+ versus LNC3+ w/SCR 
were relatively small, the EPA finds that North Dakota's consideration 
of visibility improvement was satisfactory.
6. Summary of the EPA's Evaluation of North Dakota's NOX 
BART Determination for Coal Creek Station Units 1 and 2
    In summary, the EPA proposes to approve the portion of North 
Dakota's 2022 SIP submittal that addresses North Dakota's 
NOX BART determination for Coal Creek Units 1 and 2. The EPA 
bases this decision on the determination that North Dakota reasonably 
considered all five factors in determining BART as required under CAA 
section 169A, 40 CFR 51.308(e), and 40 CFR part 51, appendix Y. This 
action addresses the last outstanding North Dakota BART requirement for 
the first planning period.

B. Clean Air Act Section 110(l)

    Under CAA section 110(l), the 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.'' All areas in North Dakota are currently meeting the 
NAAQS.\155\ This proposed approval would require new NOX 
BART limits at Coal Creek Units 1 and 2, resulting in a reduction of 
1,162 tpy of NOX from the baseline. Because this action is 
associated with a reduction in NOX emissions and is not 
associated with any increase in emissions, this action is unlikely to 
interfere with attainment or reasonable further progress in North 
Dakota or nearby States.
---------------------------------------------------------------------------

    \155\ EPA Green Book, Current Nonattainment Counties for All 
Pollutants, available at https://www3.epa.gov/airquality/greenbook/ancl.html (last visited December 2023).
---------------------------------------------------------------------------

    The EPA finds that approval of the portion of North Dakota's August 
2022 SIP submittal that addresses NOX BART for Coal Creek is 
in compliance with CAA section 110(l).

C. Coordination With FLMs

    Under 40 CFR 51.308(i)(2), States are obligated to provide FLMs 
with an opportunity for consultation in development of the State's 
proposed SIP submittal no less than sixty days prior to the associated 
public hearing or public comment opportunity.
    For the 2022 SIP submittal, North Dakota engaged with FLMs early in 
the planning process by participating in WRAP meetings and by holding 
separate calls with FLMs to discuss visibility impairment in Class I 
areas and the State's plans for the North Dakota 2022 SIP submittal. 
North Dakota also met via video conference with the NPS on November 6, 
2020, and December 15, 2020, and with the USFS on November 23, 2020.
    Upon completing its draft 2022 SIP submittal, North Dakota provided 
the draft to FLMs for a review and consultation period from September 
20, 2021, through November 19, 2021, pursuant to 40 CFR 51.308(i)(2).

[[Page 66027]]

Additionally, North Dakota held a video conference with the NPS, USFS, 
and EPA Region 8 staff on November 10, 2021, to discuss the draft and 
receive feedback from the FLMs. North Dakota received comments from 
USFS on November 17, 2021, and from the NPS on November 19, 2021.\139\ 
Specific to the BART determination for Coal Creek Units 1 and 2 
contained in North Dakota's 2022 SIP submittal, the NPS commented on 
the control efficiency considered by North Dakota for SCR controls, the 
5.25% interest rate used by North Dakota in cost-effectiveness 
calculations, and the remaining useful life used by North Dakota in 
cost calculations. North Dakota responded to the FLM comments and 
included the responses in appendix D of the North Dakota 2022 SIP 
submittal, in accordance with 40 CFR 51.308(i)(3).
    In consideration of these consultation actions, the EPA finds that 
North Dakota has satisfied the requirements under 40 CFR 51.308(i) to 
consult with the FLMs for the 2022 SIP submittal as it pertains to Coal 
Creek Station Units 1 and 2 BART.

V. The EPA's Evaluation of North Dakota's Five-Year Progress Report

    This section includes the EPA's analysis of North Dakota's 2015 
Progress Report for the first planning period and an explanation of the 
basis of our proposed approval. As listed in section III.D. above, 
North Dakota's 2015 Progress Report included the elements required in 
40 CFR 51.308(g) and 40 CFR 51.308(h) of the 1999 Regional Haze Rule, 
which was the applicable rule at the time of submission,\156\ As a 
result, the EPA finds that North Dakota's progress report addresses the 
requirements of the CAA and the EPA's rules that require States to 
submit periodic reports describing progress toward reasonable progress 
goals established for regional haze.
---------------------------------------------------------------------------

    \156\ Because North Dakota's 2015 Progress Report was developed 
before the EPA's 2017 Regional Haze Rule Revisions, the applicable 
requirements are the requirements from the 1999 Regional Haze Rule. 
See 82 FR 3078, 3080 (January 10, 2017): ``These changes do not 
affect the development and review of State plans for the first 
implementation period or the first progress reports due under the 
1999 RHR.''
---------------------------------------------------------------------------

    To meet 40 CFR 51.308(g)(1), North Dakota included a description of 
the status of implementation of the measures included in the first 
planning period implementation plan, including current emissions rates, 
BART/reasonable progress limits, and implementation dates.\157\ North 
Dakota also included a breakdown of its species contribution to 
impairment in both in-state and out-of-state Class I areas.\158\ To 
address 40 CFR 51.308(g)(2), North Dakota included a list of emissions 
reductions that have occurred as a result of Regional Haze SIP control 
requirements.\159\
---------------------------------------------------------------------------

    \157\ North Dakota's 2015 Progress Report, table 2.3.
    \158\ North Dakota's 2015 Progress Report, table 2.1 and table 
2.2.
    \159\ North Dakota's 2015 Progress Report, section 2.2.
---------------------------------------------------------------------------

    To satisfy 40 CFR 51.308(g)(3), North Dakota included an assessment 
of visibility conditions and changes on least-impaired days and most-
impaired days for both Class I areas within the State (Lostwood 
Wilderness Area and Theodore Roosevelt National Park) expressed in 
terms of 5-year averages of these annual values.\160\ North Dakota 
compared the baseline average of visibility impairment to both an 
average from 2005-2009 and an average from 2008-2012.\161\
---------------------------------------------------------------------------

    \160\ North Dakota's 2015 Progress Report, table 2.8.
    \161\ Id.
---------------------------------------------------------------------------

    To meet 40 CFR 51.308(g)(4), North Dakota included an analysis 
tracking the change over the past 5 years addressed within the 2015 
progress report in emissions of pollutants contributing to visibility 
impairment from all sources and activities within the State; these 
numbers are also broken down by source category.\162\ Here, North 
Dakota included 2011 data from the most recent triennial reporting 
requirements as of the time of progress report development.\163\
---------------------------------------------------------------------------

    \162\ North Dakota's 2015 Progress Report, section 2.4.; table 
2.5; table 2.6; table 2.7.
    \163\ Id.
---------------------------------------------------------------------------

    To satisfy 40 CFR 51.308(g)(5), North Dakota included an assessment 
of changes in anthropogenic emissions within or outside of the State 
that have occurred over the past 5 years addressed within the 2015 
progress report.\164\ Considering changes in emissions over time and 
expected reductions in NOX and VOC emissions due to a 
reduction in flaring, North Dakota concluded that there was no evidence 
at the time that the increase in oil and gas activity (or any other 
sector) in North Dakota was impeding progress towards the visibility 
goal.\165\
---------------------------------------------------------------------------

    \164\ North Dakota's 2015 Progress Report, section 2.5.
    \165\ Id.
---------------------------------------------------------------------------

    To meet 40 CFR 51.308(g)(6), North Dakota included an assessment of 
the implementation plan elements that were current at the time of 
submission (including BART controls and reasonable progress controls 
resulting from the first planning period)..\166\ North Dakota 
ultimately concluded that its emissions would not impede the 
achievement of reasonable progress goals in in-state or out-of-state 
Class I areas.\167\
---------------------------------------------------------------------------

    \166\ North Dakota's 2015 Progress Report, section 2.6.
    \167\ Id.
---------------------------------------------------------------------------

    North Dakota also included an assessment of its visibility 
monitoring strategy to address 40 CFR 51.308(g)(7). North Dakota stated 
that it relies on the IMPROVE \168\ program for its monitoring 
strategy.\169\ North Dakota confirmed that there is no change needed to 
this monitoring strategy at this time.\170\. North Dakota met the 
requirements of 40 CFR 51.308(h) by including a determination that the 
existing implementation plan is sufficient to achieve established goals 
for visibility improvement and emissions reduction.\171\
---------------------------------------------------------------------------

    \168\ 2019 Guidance, section 8.c.: ``With respect to Sec.  
51.308(f)(6)(i) through (iv) regarding monitoring of ambient 
visibility conditions, we recommend that all States with Class I 
areas confirm in their SIPs that they participate in the IMPROVE 
monitoring program through the representation of their interests by 
a State air agency representative on the IMPROVE Steering Committee 
and through the allocation of CAA air management grant funding to 
the IMPROVE program.''
    \169\ North Dakota's 2015 Progress Report, section 2.7.
    \170\ Id.
    \171\ Id.
---------------------------------------------------------------------------

    North Dakota provided an opportunity for consultation with FLMs for 
the 2015 progress report by providing a copy of the draft progress 
report on June 25, 2014. The 2015 progress report was distributed to 
the National Park Service, the U.S. Fish and Wildlife Service, the U.S. 
Forest Service, and EPA Region 8 staff. The National Park Service, the 
U.S. Forest Service, and the EPA provided comments.\172\ North Dakota 
documented this consultation in its 2015 progress report 
submittal.\173\ The EPA finds that North Dakota has satisfied the 
requirement to consult with FLMs on the 2015 progress report.
---------------------------------------------------------------------------

    \172\ North Dakota's 2015 Progress Report, section 3.
    \173\ North Dakota's 2015 Progress Report, section 4.
---------------------------------------------------------------------------

    Based on the information provided in North Dakota's 2015 progress 
report, the EPA proposes to approve North Dakota's 2015 progress report 
for the first planning period.

VI. Summary of the EPA's Proposed Action

    The EPA is proposing to approve North Dakota's NOX BART 
determination for Coal Creek units 1 and 2 from the August 2022 SIP 
submittal. Specifically, the EPA is proposing to approve the 
NOX BART determination for the Coal Creek Station, included 
in appendix F of North Dakota's 2022 SIP submittal, of

[[Page 66028]]

0.15 lb/MMBtu NOX averaged across unit 1 and unit 2 on a 30-
day rolling average. Additionally, the EPA is proposing to approve 
North Dakota's 2015 Progress Report as meeting the requirements of 40 
CFR 51.308(g) and (h).

VII. Environmental Justice

    The EPA conducted an environmental justice (EJ) screening analysis 
around the location of Coal Creek to identify potential environmental 
stressors on the nearby communities. The EPA is providing the 
information associated with this analysis for informational purposes 
only; it does not form any part of the basis of this proposed action.
    The EPA conducted the screening analysis using EJScreen, an EJ 
mapping and screening tool that provides the EPA with a nationally 
consistent dataset and approach for combining various environmental and 
demographic indicators.\174\ The EPA prepared an EJScreen report 
covering buffer areas of approximately six miles around Coal Creek. 
From this report, there were no EJ indices greater than the 80th 
national percentiles.\175\ The full, detailed EJScreen report is 
provided in the docket for this rulemaking.
---------------------------------------------------------------------------

    \174\ The EJSCREEN tool is available at https://www.epa.gov/ejscreen.
    \175\ For a place at the 80th percentile nationwide, that means 
20 percent of the U.S. population has a higher value. The EPA 
identified the 80th percentile filter as an initial starting point 
for interpreting EJScreen results.
---------------------------------------------------------------------------

VIII. Incorporation by Reference

    In this proposed rule, the EPA is proposing to include regulatory 
text in an EPA final rule that includes incorporation by reference. In 
accordance with the requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference the SIP amendments described in section VI. 
The EPA has made, and will continue to make, these materials generally 
available through https://www.regulations.gov (refer to docket EPA-R08-
OAR-2023-0641).

IX. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the 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).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
The EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    North Dakota did not evaluate environmental justice considerations 
as part of its SIP submittal; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. The EPA 
performed an environmental justice screening analysis, as described 
above in section VI. The analysis was done for the purpose of providing 
additional context and information about this rulemaking to the public, 
not as a basis of the action. There is no information in the record 
upon which this decision is based inconsistent with the stated goal of 
E.O. 12898 of achieving environmental justice for people of color, low-
income populations, and Indigenous peoples.

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: August 2, 2024.
KC Becker,
Regional Administrator, Region 8.

    For the reasons set forth in the preamble, 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, the table in paragraph (d) is amended by revising 
the entry ``PTC10005'' under the center heading ``Coal Creek Station 
Units 1 and 2.'' to read as follows:


Sec.  52.1820  Identification of plan.

* * * * *
    (d) * * *

[[Page 66029]]



----------------------------------------------------------------------------------------------------------------
                                             State
      Rule No.           Rule title        effective   EPA effective date      Final rule           Comments
                                             date                             citation/date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                        Coal Creek Station Units 1 and 2.
----------------------------------------------------------------------------------------------------------------
PTC 21001..........  Air Pollution         7/27/2022   [Date 30 days       [Federal Register   Only: NOX BART
                      Control Permit to                 after date of       citation of the     emissions limits
                      Construct for                     publication of      final rule],        for Units 1 and
                      Best Available                    the final rule in   [Date of            2 and
                      Retrofit                          the Federal         publication of      corresponding
                      Technology (BART).                Register].          the final rule in   monitoring,
                                                                            the Federal         recordkeeping,
                                                                            Register].          and reporting
                                                                                                requirements.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2024-17471 Filed 8-13-24; 8:45 am]
BILLING CODE 6560-50-P