[Federal Register Volume 89, Number 132 (Wednesday, July 10, 2024)]
[Proposed Rules]
[Pages 56693-56714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14761]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2023-0495; FRL-12052-01-R8]
Air Plan Partial Approval and Partial Disapproval; North Dakota;
Regional Haze State Implementation Plan for the Second Implementation
Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
partially approve and partially disapprove the regional haze state
implementation plan (SIP) revision submitted by the State of North
Dakota on August 11, 2022 (North Dakota's 2022 SIP submission), as
satisfying applicable requirements under the Clean Air Act (CAA) and
the EPA's Regional Haze Rule (RHR) for the program's second
implementation period. North Dakota's 2022 SIP submission addresses the
requirement
[[Page 56694]]
that states revise their long-term strategies every implementation
period to make reasonable progress towards the national goal of
preventing any future, and remedying any existing, anthropogenic
impairment of visibility, including regional haze, in mandatory Class I
Federal areas. North Dakota's 2022 SIP submission also addresses other
applicable requirements for the second implementation period of the
regional haze program. The EPA is taking this action pursuant to the
CAA.
DATES: Written comments must be received on or before August 9, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2023-0495, 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 public comment
policy of the EPA, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit https://www.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. Background
A. History of the Regional Haze Program
B. Roles of Agencies in Addressing Regional Haze
C. North Dakota's First Implementation Period SIP Submissions
D. North Dakota's Second Implementation Period SIP Submission
III. Requirements for Regional Haze Plans for the Second
Implementation Period
A. Identification of Class I Areas
B. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
C. Long-Term Strategy for Regional Haze
D. Reasonable Progress Goals
E. Monitoring Strategy and Other State Implementation Plan
Requirements
F. Requirements for Periodic Reports Describing Progress Towards
the Reasonable Progress Goals
G. Requirements for Federal Land Manager Coordination
IV. The EPA's Evaluation of North Dakota's Regional Haze Submission
for the Second Implementation Period
A. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress Under
40 CFR 51.308(f)(1)
B. North Dakota's Long-Term Strategy Under CAA 169A and 40 CFR
51.308(f)(2)
1. North Dakota's Long-Term Strategy Under CAA 169A and 40 CFR
51.308(f)(2)(i)
a. Reliance on Non-Statutory Considerations To Reject Reasonable
Controls at Coyote Station and Antelope Valley
i. North Dakota Unreasonably Rejected Controls Based on
Visibility Modeling
(a) Modeling Showing No ``Significant'' Change in Visibility Is
Not a Sufficient Basis To Reject Controls Under CAA 169A and 40 CFR
51.308(f)(2)(i)
(b) North Dakota Failed To Consider Visibility Impacts at Out-
of-State Class I Areas
ii. Projections That North Dakota Class I Areas Will Meet the
Adjusted Uniform Rate of Progress Is Not a Sufficient Basis To
Reject Controls Under 40 CFR 51.308(f)(2)(i)
b. Failure To Consider the Four Factors at Coal Creek and
Unreasonable Rejection of Controls at Coal Creek and Leland Olds
2. Other Long-Term Strategy Requirements Under 40 CFR
51.308(f)(2)(ii)-(iv)
C. Reasonable Progress Goals
D. Reasonably Attributable Visibility Impairment (RAVI)
E. Monitoring Strategy and Other Implementation Plan
Requirements
F. Requirements for Periodic Reports Describing Progress Towards
the Reasonable Progress Goals
G. Requirements for Federal Land Manager Coordination
V. Proposed Action
VI. Environmental Justice
VII. Statutory and Executive Order Reviews
I. What action is the EPA proposing?
On August 11, 2022, the North Dakota Department of Environmental
Quality submitted a revision to its SIP to address regional haze for
the second implementation period. North Dakota made this SIP submission
to satisfy the requirements of the CAA's regional haze program under
CAA sections 169A and 169B and 40 CFR 51.308(f). The EPA is proposing
to approve the portions of North Dakota's 2022 SIP submission relating
to 40 CFR 51.308(f)(1): calculations of baseline, current, and natural
visibility conditions, progress to date, and the uniform rate of
progress; 40 CFR 51.308(f)(4): reasonably attributable visibility
impairment; 40 CFR 51.308(f)(5) and 40 CFR 51.308(g): progress report
requirements; and 40 CFR 51.308(f)(6): monitoring strategy and other
implementation plan requirements. The EPA is proposing to disapprove
the portions of North Dakota's 2022 SIP submission relating to CAA 169A
and 40 CFR 51.308(f)(2): long-term strategy; 40 CFR 51.308(f)(3):
reasonable progress goals; and 40 CFR 51.308(i): FLM consultation.
Consistent with section 110(k)(3) of the CAA, the EPA may partially
approve portions of a submittal if those elements meet all applicable
requirements and may disapprove the remainder so long as the elements
are fully separable.\1\
---------------------------------------------------------------------------
\1\ See CAA section 110(k)(3) and July 9, 1992 EPA memorandum
titled ``Processing of State Implementation Plan (SIP) Submittals''
from John Calcagni, at https://www.epa.gov/sites/default/files/2015-07/documents/procsip.pdf.
---------------------------------------------------------------------------
II. Background
A. History of the Regional Haze Program
In the 1977 CAA Amendments, Congress created a program for
protecting visibility in the nation's mandatory Class I Federal areas,
which include certain national parks and wilderness areas.\2\ CAA 169A.
The CAA
[[Page 56695]]
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.''
CAA 169A(a)(1). The CAA further directs the EPA to promulgate
regulations to assure reasonable progress toward meeting this national
goal. CAA 169A(a)(4). On December 2, 1980, the EPA promulgated
regulations to address visibility impairment in mandatory Class I
Federal areas (hereinafter referred to as ``Class I areas'') that is
``reasonably attributable'' to a single source or small group of
sources. (45 FR 80084, December 2, 1980). These regulations, codified
at 40 CFR 51.300 through 51.307, represented the first phase of the
EPA's efforts to address visibility impairment. In 1990, Congress added
section 169B to the CAA to further address visibility impairment,
specifically, impairment from regional haze. CAA 169B. The EPA
promulgated the Regional Haze Rule (RHR), codified at 40 CFR 51.308,\3\
on July 1, 1999. (64 FR 35714, July 1, 1999). On January 10, 2017, the
EPA promulgated additional regulations that address visibility
impairment for the second and subsequent implementation periods (82 FR
3078, January 10, 2017). These regional haze regulations are a central
component of the EPA's comprehensive visibility protection program for
Class I areas.
---------------------------------------------------------------------------
\2\ Areas statutorily 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. CAA
162(a). There are 156 mandatory Class I areas. The list of areas to
which the requirements of the visibility protection program apply is
in 40 CFR part 81, subpart D.
\3\ In addition to the generally applicable regional haze
provisions at 40 CFR 51.308, the EPA also promulgated regulations
specific to addressing regional haze visibility impairment in Class
I areas on the Colorado Plateau at 40 CFR 51.309. The latter
regulations are applicable only for specific jurisdictions' regional
haze plans submitted no later than December 17, 2007, and thus are
not relevant here.
---------------------------------------------------------------------------
Regional haze is visibility impairment that is produced by a
multitude of anthropogenic sources and activities that are located
across a broad geographic area and that emit pollutants that impair
visibility. Visibility impairing pollutants include fine and coarse
particulate matter (PM) (e.g., sulfates, nitrates, organic carbon,
elemental carbon, and soil dust) and their precursors (e.g., sulfur
dioxide (SO2), nitrogen oxides (NOX), and, in
some cases, volatile organic compounds (VOC) and ammonia
(NH3)). Fine particle precursors react in the atmosphere to
form fine particulate matter (PM2.5), which impairs
visibility by scattering and absorbing light. Visibility impairment
reduces the perception of clarity and color, as well as visible
distance.\4\
---------------------------------------------------------------------------
\4\ There are several ways to measure the amount of visibility
impairment, i.e., haze. One such measurement is the deciview, which
is the principal metric used by the RHR. Under many circumstances, a
change in one deciview will be perceived by the human eye to be the
same on both clear and hazy days. The deciview is unitless. It is
proportional to the logarithm of the atmospheric extinction of
light, which is the perceived dimming of light due to its being
scattered and absorbed as it passes through the atmosphere.
Atmospheric light extinction (b\ext\) is a metric used for
expressing visibility and is measured in inverse megameters
(Mm-1). The EPA's Guidance on Regional Haze State
Implementation Plans for the Second Implementation Period (``2019
Guidance'') offers the flexibility for the use of light extinction
in certain cases. Light extinction can be simpler to use in
calculations than deciviews, since it is not a logarithmic function.
See, e.g., 2019 Guidance at 16, 19, https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period, The EPA Office of Air Quality Planning and
Standards, Research Triangle Park (August 20, 2019). The formula for
the deciview is 10 ln (bext)/10 Mm-1). 40 CFR 51.301.
---------------------------------------------------------------------------
To address regional haze visibility impairment, the 1999 RHR
established an iterative planning process that requires both states in
which Class I areas are located and states ``the emissions from which
may reasonably be anticipated to cause or contribute to any impairment
of visibility'' in a Class I area to periodically submit SIP revisions
to address such impairment. CAA 169A(b)(2); \5\ see also 40 CFR
51.308(b), (f) (establishing submission dates for iterative regional
haze SIP revisions); (64 FR at 35768, July 1, 1999). Under the CAA,
each SIP submission must contain ``a long-term (ten to fifteen years)
strategy for making reasonable progress toward meeting the national
goal,'' CAA 169A(b)(2)(B); the initial round of SIP submissions also
had to address the statutory requirement that certain older, larger
sources of visibility impairing pollutants install and operate the best
available retrofit technology (BART). CAA 169A(b)(2)(A); 40 CFR
51.308(d), (e). States' first regional haze SIPs were due by December
17, 2007, 40 CFR 51.308(b), with subsequent SIP submissions containing
updated long-term strategies originally due July 31, 2018, and every
ten years thereafter. (64 FR at 35768, July 1, 1999). The EPA
established in the 1999 RHR that all states either have Class I areas
within their borders or ``contain sources whose emissions are
reasonably anticipated to contribute to regional haze in a Class I
area''; therefore, all states must submit regional haze SIPs.\6\ Id. at
35721.
---------------------------------------------------------------------------
\5\ The RHR expresses the statutory requirement for states to
submit plans addressing out-of-state Class I areas by providing that
states must address visibility impairment ``in each mandatory Class
I Federal area located outside the State that may be affected by
emissions from within the State.'' 40 CFR 51.308(d), (f).
\6\ In addition to each of the fifty states, the EPA also
concluded that the Virgin Islands and District of Columbia must also
submit regional haze SIPs because they either contain a Class I area
or contain sources whose emissions are reasonably anticipated to
contribute regional haze in a Class I area. See 40 CFR 51.300(b),
(d)(3).
---------------------------------------------------------------------------
Much of the focus in the first implementation period of the
regional haze program, which ran from 2007 through 2018, was on
satisfying states' BART obligations. First implementation period SIPs
were additionally required to contain long-term strategies for making
reasonable progress toward the national visibility goal, of which BART
is one component. The core required elements for the first
implementation period SIPs (other than BART) are laid out in 40 CFR
51.308(d). Those provisions required that states containing Class I
areas establish reasonable progress goals (RPGs) that are measured in
deciviews and reflect the anticipated visibility conditions at the end
of the implementation period including from implementation of states'
long-term strategies. The first planning period \7\ RPGs were required
to provide for an improvement in visibility for the most impaired days
over the period of the implementation plan and ensure no degradation in
visibility for the least impaired days over the same period. In
establishing the RPGs for any Class I area in a state, the state was
required to consider four statutory factors: 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 potentially affected sources. CAA 169A(g)(1); 40 CFR 51.308(d)(1).
---------------------------------------------------------------------------
\7\ The EPA uses the terms ``implementation period'' and
``planning period'' interchangeably.
---------------------------------------------------------------------------
States were also required to calculate baseline (using the five-
year period of 2000-2004) and natural visibility conditions (i.e.,
visibility conditions without anthropogenic visibility impairment) for
each Class I area, and to calculate the linear rate of progress needed
to attain natural visibility conditions, assuming a starting point of
baseline visibility conditions in 2004 and ending with natural
conditions in 2064. This linear interpolation is known as the uniform
rate of progress (URP) and is used as a tracking metric to help states
assess the amount of progress they are making towards the national
visibility goal over time in each Class I area.\8\ 40 CFR
51.308(d)(1)(i)(B), (d)(2).
[[Page 56696]]
The 1999 RHR also provided that states' long-term strategies must
include the ``enforceable emissions limitations, compliance schedules,
and other measures as necessary to achieve the reasonable progress
goals.'' 40 CFR 51.308(d)(3). In establishing their long-term
strategies, states are required to consult with other states that also
contribute to visibility impairment in a given Class I area and include
all measures necessary to obtain their shares of the emission
reductions needed to meet the RPGs. 40 CFR 51.308(d)(3)(i), (ii).
Section 51.308(d) also contains seven additional factors states must
consider in formulating their long-term strategies, 40 CFR
51.308(d)(3)(v), as well as provisions governing monitoring and other
implementation plan requirements. 40 CFR 51.308(d)(4). Finally, the
1999 RHR required states to submit periodic progress reports--SIP
revisions due every five years that contain information on states'
implementation of their regional haze plans and an assessment of
whether anything additional is needed to make reasonable progress, see
40 CFR 51.308(g), (h)--and to consult with the Federal Land Manager(s)
\9\ (FLMs) responsible for each Class I area according to the
requirements in CAA 169A(d) and 40 CFR 51.308(i).
---------------------------------------------------------------------------
\8\ The EPA established the URP framework in the 1999 RHR to
provide ``an equitable analytical approach'' to assessing the rate
of visibility improvement at Class I areas across the country. The
starting point for the URP analysis is 2004 and the endpoint was
calculated based on the amount of visibility improvement that was
anticipated to result from implementation of existing CAA programs
over the period from the mid-1990s to approximately 2005. Assuming
this rate of progress would continue into the future, the EPA
determined that natural visibility conditions would be reached in 60
years, or 2064 (60 years from the baseline starting point of 2004).
However, the EPA did not establish 2064 as the year by which the
national goal must be reached. 64 FR at 35731-32. That is, the URP
and the 2064 date are not enforceable targets but are rather tools
that ``allow for analytical comparisons between the rate of progress
that would be achieved by the state's chosen set of control measures
and the URP.'' (82 FR 3078, 3084, January 10, 2017).
\9\ The EPA's regulations define ``Federal Land Manager'' as
``the Secretary of the department with authority over the Federal
Class I area (or the Secretary's designee) or, with respect to
Roosevelt-Campobello International Park, the Chairman of the
Roosevelt-Campobello International Park Commission.'' 40 CFR 51.301.
---------------------------------------------------------------------------
On January 10, 2017, the EPA promulgated revisions to the RHR, (82
FR 3078, January 10, 2017), that apply for the second and subsequent
implementation periods. The 2017 rulemaking made several changes to the
requirements for regional haze SIPs to clarify states' obligations and
streamline certain regional haze requirements. The revisions to the
regional haze program for the second and subsequent implementation
periods focused on the requirement that states' SIPs contain long-term
strategies for making reasonable progress towards the national
visibility goal in line with CAA 169A(b)(2)(B). The reasonable progress
requirements as revised in the 2017 rulemaking (referred to here as the
2017 RHR Revisions) are codified at 40 CFR 51.308(f). Among other
changes, the 2017 RHR Revisions adjusted the deadline for states to
submit their second implementation period SIPs from July 31, 2018, to
July 31, 2021, clarified the order of analysis and the relationship
between RPGs and the long-term strategy, and focused on making
visibility improvements on the days with the most anthropogenic
visibility impairment, as opposed to the days with the most visibility
impairment overall. The EPA also revised requirements of the visibility
protection program related to periodic progress reports and FLM
consultation. The specific requirements applicable to second
implementation period regional haze SIP submissions are addressed in
detail below.
The EPA provided guidance to the states for their second
implementation period SIP submissions in the preamble to the 2017 RHR
Revisions as well as in subsequent, stand-alone guidance documents. In
August 2019, the EPA issued ``Guidance on Regional Haze State
Implementation Plans for the Second Implementation Period'' (``2019
Guidance'').\10\ On July 8, 2021, the EPA issued a memorandum
containing ``Clarifications Regarding Regional Haze State
Implementation Plans for the Second Implementation Period'' (``2021
Clarifications Memo'').\11\ Additionally, the EPA further clarified the
recommended procedures for processing ambient visibility data and
optionally adjusting the URP to account for international anthropogenic
and prescribed fire impacts in two technical guidance documents: the
December 2018 ``Technical Guidance on Tracking Visibility Progress for
the Second Implementation Period of the Regional Haze Program'' (``2018
Visibility Tracking Guidance''),\12\ and the June 2020 ``Recommendation
for the Use of Patched and Substituted Data and Clarification of Data
Completeness for Tracking Visibility Progress for the Second
Implementation Period of the Regional Haze Program'' and associated
Technical Addendum (``2020 Data Completeness Memo'').\13\
---------------------------------------------------------------------------
\10\ Guidance on Regional Haze State Implementation Plans for
the Second Implementation Period. https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period. The EPA Office of Air Quality Planning and
Standards, Research Triangle Park (August 20, 2019).
\11\ Clarifications Regarding Regional Haze State Implementation
Plans for the Second Implementation Period. https://www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf. The EPA Office of Air Quality Planning and Standards,
Research Triangle Park (July 8, 2021).
\12\ Technical Guidance on Tracking Visibility Progress for the
Second Implementation Period of the Regional Haze Program. https://www.epa.gov/visibility/technical-guidance-tracking-visibility-progress-second-implementation-period-regional. The EPA Office of
Air Quality Planning and Standards, Research Triangle Park.
(December 20, 2018).
\13\ Recommendation for the Use of Patched and Substituted Data
and Clarification of Data Completeness for Tracking Visibility
Progress for the Second Implementation Period of the Regional Haze
Program. https://www.epa.gov/visibility/memo-and-technical-addendum-ambient-data-usage-and-completeness-regional-haze-program. The EPA
Office of Air Quality Planning and Standards, Research Triangle Park
(June 3, 2020).
---------------------------------------------------------------------------
As explained in the 2021 Clarifications Memo, the EPA intends the
second implementation period of the regional haze program to secure
meaningful reductions in visibility impairing pollutants that build on
the significant progress states have achieved to date. The Agency also
recognizes that analyses regarding reasonable progress are state-
specific and that, based on states' and sources' individual
circumstances, what constitutes reasonable reductions in visibility
impairing pollutants will vary from state-to-state. While there exist
many opportunities for states to leverage both ongoing and upcoming
emission reductions under other CAA programs, the Agency expects states
to undertake rigorous reasonable progress analyses that identify
further opportunities to advance the national visibility goal
consistent with the statutory and regulatory requirements. See
generally 2021 Clarifications Memo. This is consistent with Congress's
determination that a visibility protection program is needed in
addition to the CAA's National Ambient Air Quality Standards and
Prevention of Significant Deterioration programs, as further emission
reductions may be necessary to adequately protect visibility in Class I
areas throughout the country.\14\
---------------------------------------------------------------------------
\14\ See, e.g., H.R. Rep. No. 95-294 at 205 (``In determining
how to best remedy the growing visibility problem in these areas of
great scenic importance, the committee realizes that as a matter of
equity, the national ambient air quality standards cannot be revised
to adequately protect visibility in all areas of the country.''),
(``the mandatory Class I increments of [the PSD program] do not
adequately protect visibility in Class I areas'').
---------------------------------------------------------------------------
[[Page 56697]]
B. Roles of Agencies in Addressing Regional Haze
Because the air pollutants and pollution affecting visibility in
Class I areas can be transported over long distances, successful
implementation of the regional haze program requires long-term,
regional coordination among multiple jurisdictions and agencies that
have responsibility for Class I areas and the emissions that impact
visibility in those areas. To address regional haze, states need to
develop strategies in coordination with one another, considering the
effect of emissions from one jurisdiction on the air quality in
another. Five regional planning organizations (RPOs),\15\ which include
representation from state and Tribal governments, the EPA, and FLMs,
were developed in the lead-up to the first implementation period to
address regional haze. RPOs evaluate technical information to better
understand how emissions from state and tribal land impact Class I
areas across the country, pursue the development of regional strategies
to reduce emissions of particulate matter and other pollutants leading
to regional haze, and help states meet the consultation requirements of
the RHR.
---------------------------------------------------------------------------
\15\ RPOs are sometimes also referred to as ``multi-
jurisdictional organizations,'' or MJOs. For the purposes of this
document, the terms RPO and MJO are synonymous.
---------------------------------------------------------------------------
The Western Regional Air Partnership (WRAP), one of the five RPOs
described in the previous paragraph, 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.\16\ 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).
---------------------------------------------------------------------------
\16\ A full list of WRAP members is available at https://www.westar.org/wrap-council-members/.
---------------------------------------------------------------------------
C. North Dakota's First Implementation Period SIP Submissions
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 SIP Supplement No. 1 submitted on July 27, 2010, and SIP
Amendment No. 1 submitted on July 28, 2011 (collectively, the ``2010
Regional Haze SIP''). On April 6, 2012, the EPA promulgated a final
rule titled ``Approval and Promulgation of Implementation Plans; North
Dakota; Regional Haze State Implementation Plan; Federal Implementation
Plan for Interstate Transport of Pollution Affecting Visibility and
Regional Haze; Final Rule'' (2012 Final Rule).\17\ The 2012 Final Rule
approved in part and disapproved in part the 2010 Regional Haze SIP.
The EPA's disapproval included portions of the plan that addressed
reasonable progress requirements and North Dakota's BART determinations
for Coal Creek Station (Coal Creek) Units 1 and 2 and Antelope Valley
Station (Antelope Valley) Units 1 and 2. In the same rulemaking, the
EPA promulgated a FIP that imposed, among other things, a
NOX emission limit for Antelope Valley Units 1 and 2, and a
NOX BART determination and emission limit for Coal Creek
Units 1 and 2.
---------------------------------------------------------------------------
\17\ 77 FR 20894 (April 6, 2012).
---------------------------------------------------------------------------
Subsequently, North Dakota and other petitioners challenged the
2012 Final Rule in the United States Court of Appeals for the Eighth
Circuit. On January 2, 2013, North Dakota submitted a SIP revision to
the EPA to provide additional information supporting its original
NOX BART determination for Coal Creek.\18\ On September 23,
2013, the Eighth Circuit concluded in North Dakota v. EPA that the EPA
properly disapproved portions of the 2010 Regional Haze SIP, including
the reasonable progress determination for Antelope Valley Units 1 and
2.\19\ The court also upheld the EPA's FIP promulgating an emission
limit of 0.17 lb/MMBtu NOX (30-day rolling average) for
Antelope Valley Units 1 and 2.\20\ However, the court vacated and
remanded the EPA's FIP promulgating an emission limit of 0.13 lb/MMBtu
NOX (30-day rolling average) for Coal Creek.\21\
---------------------------------------------------------------------------
\18\ North Dakota referred to the January 2, 2013 SIP submission
as ``Supplement No. 2.'' The EPA herein refers to North Dakota's
January 2, 2013 submission as a SIP submission.
\19\ North Dakota v. EPA, 730 F.3d 750, 766 (8th Cir. 2013).
\20\ Id.
\21\ Id. at 764.
---------------------------------------------------------------------------
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 submitted in North Dakota's January 2013 SIP
submission.\22\ The EPA did not finalize that action.23 24
On August 3, 2020, North Dakota submitted a SIP revision to incorporate
the 2012 FIP requirements for Antelope Valley, which the EPA approved
on April 5, 2022.\25\ In the same action, the EPA withdrew from the
Code of Federal Regulations the FIP requirements for Coal Creek that
the Eighth Circuit vacated in North Dakota v. EPA.
---------------------------------------------------------------------------
\22\ 83 FR 18248 (April 26, 2018).
\23\ North Dakota's 2022 SIP submission, Letter from North
Dakota Governor Doug Burgum to EPA Administrator Michael Regan.
\24\ As explained in this document in section II.D., North
Dakota subsequently withdrew the Coal Creek Station NOX
BART portion of its 2013 SIP submission in its 2022 SIP submission
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 2022 SIP submission in a separate
action.
\25\ 87 FR 19635 (April 5, 2022).
---------------------------------------------------------------------------
D. North Dakota's Second Implementation Period SIP Submissions
In accordance with CAA section 169A and the RHR at 40 CFR
51.308(f), on August 11, 2022, the governor of North Dakota submitted
North Dakota's 2022 SIP submission to address the State's regional haze
obligations for the second implementation period, which runs through
2028. North Dakota's 2022 SIP submission also addressed the first
planning period NOX BART determination for Coal Creek that
was remanded in North Dakota v. EPA. Concurrently, North Dakota also
withdrew its 2013 SIP submission that addressed NOX BART for
Coal Creek.\26\ The EPA is acting on North Dakota's 2022 SIP submission
as it pertains to Coal Creek NOX BART and North Dakota's
2015 SIP submission for the five-year progress report in a separate
action.
---------------------------------------------------------------------------
\26\ North Dakota refers to its January 2, 2013, SIP submission
as SIP Supplement No. 2.
---------------------------------------------------------------------------
III. Requirements for Regional Haze Plans for the Second Implementation
Period
Under the CAA and the EPA's regulations, all 50 states, the
District of Columbia, and the U.S. Virgin Islands are required to
submit regional haze SIPs satisfying the applicable requirements for
the second implementation period of the regional haze program by July
31, 2021. Each state's SIP must contain a long-term strategy for making
reasonable progress toward meeting the national goal of remedying any
existing and preventing any future anthropogenic visibility impairment
in Class I areas. CAA 169A(b)(2)(B). To this end, Sec. 51.308(f) lays
out the process by which states
[[Page 56698]]
determine what constitutes their long-term strategies, with the order
of the requirements in Sec. 51.308(f)(1) through (3) generally
mirroring the order of the steps in the reasonable progress analysis
\27\ and (f)(4) through (6) containing additional, related
requirements. Broadly speaking, a state first must identify the Class I
areas within the state and determine the Class I areas outside the
state in which visibility may be affected by emissions from the state.
These are the Class I areas that must be addressed in the state's long-
term strategy. See 40 CFR 51.308(f), (f)(2). For each Class I area
within its borders, a state must then calculate the baseline, current,
and natural visibility conditions for that area, as well as the
visibility improvement made to date and the URP. See 40 CFR
51.308(f)(1). Each state having a Class I area and/or emissions that
may affect visibility in a Class I area must then develop a long-term
strategy that includes the enforceable emission limitations, compliance
schedules, and other measures that are necessary to make reasonable
progress in such areas. A reasonable progress determination is based on
applying the four factors in CAA section 169A(g)(1) to sources of
visibility impairing pollutants that the state has selected to assess
for controls for the second implementation period. Additionally, as
further explained below, the RHR at 40 CFR 51.3108(f)(2)(iv) separately
provides five ``additional factors'' \28\ that states must consider in
developing their long-term strategies. See 40 CFR 51.308(f)(2). A state
evaluates potential emission reduction measures for those selected
sources and determines which are necessary to make reasonable progress.
Those measures are then incorporated into the state's long-term
strategy. After a state has developed its long-term strategy, it then
establishes RPGs for each Class I area within its borders by modeling
the visibility impacts of all reasonable progress controls at the end
of the second implementation period, i.e., in 2028, as well as the
impacts of other requirements of the CAA. The RPGs include reasonable
progress controls not only for sources in the state in which the Class
I area is located, but also for sources in other states that contribute
to visibility impairment in that area. The RPGs are then compared to
the baseline visibility conditions and the URP to ensure that progress
is being made towards the statutory goal of preventing any future and
remedying any existing anthropogenic visibility impairment in Class I
areas. 40 CFR 51.308(f)(2)-(3).
---------------------------------------------------------------------------
\27\ The EPA explained in the 2017 RHR Revisions that we were
adopting new regulatory language in 40 CFR 51.308(f) that, unlike
the structure in Sec. 51.308(d), ``tracked the actual planning
sequence.'' (82 FR at 3091).
\28\ The five ``additional factors'' for consideration in Sec.
51.308(f)(2)(iv) are distinct from the four factors listed in CAA
section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that states must
consider and apply to sources in determining reasonable progress.
---------------------------------------------------------------------------
In addition to satisfying the requirements at 40 CFR 51.308(f)
related to reasonable progress, the regional haze SIP revisions for the
second implementation period must address the requirements in Sec.
51.308(g)(1) through (5) pertaining to periodic reports describing
progress towards the RPGs, 40 CFR 51.308(f)(5), as well as requirements
for FLM consultation that apply to all visibility protection SIPs and
SIP revisions. 40 CFR 51.308(i).
A state must submit its regional haze SIP and subsequent SIP
revisions to the EPA according to the requirements applicable to all
SIP revisions under the CAA and the EPA's regulations. See CAA
169A(b)(2); CAA 110(a). Upon approval by the EPA, a SIP is enforceable
by the Agency and the public under the CAA. If the EPA finds that a
state fails to make a required SIP revision, or if the EPA finds that a
state's SIP is incomplete or if it disapproves the SIP, the Agency must
promulgate a federal implementation plan (FIP) that satisfies the
applicable requirements. CAA 110(c)(1).
A. Identification of Class I Areas
The first step in developing a regional haze SIP is for a state to
determine which Class I areas, in addition to those within its borders,
``may be affected'' by emissions from within the state. In the 1999
RHR, the EPA determined that all states contribute to visibility
impairment in at least one Class I area, 64 FR at 35720-22, and
explained that the statute and regulations lay out an ``extremely low
triggering threshold'' for determining ``whether States should be
required to engage in air quality planning and analysis as a
prerequisite to determining the need for control of emissions from
sources within their State.'' Id. at 35721.
A state must determine which Class I areas must be addressed by its
SIP by evaluating the total emissions of visibility impairing
pollutants from all sources within the state. While the RHR does not
require this evaluation to be conducted in any particular manner, EPA's
2019 Guidance provides recommendations for how such an assessment might
be accomplished, including by, where appropriate, using the
determinations previously made for the first implementation period.
2019 Guidance at 8-9. In addition, the determination of which Class I
areas may be affected by a state's emissions is subject to the
requirement in 40 CFR 51.308(f)(2)(iii) to ``document the technical
basis, including modeling, monitoring, cost, engineering, and emissions
information, on which the State is relying to determine the emission
reduction measures that are necessary to make reasonable progress in
each mandatory Class I Federal area it affects.''
B. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
As part of assessing whether a SIP submission for the second
implementation period is providing for reasonable progress towards the
national visibility goal, the RHR contains requirements in Sec.
51.308(f)(1) related to tracking visibility improvement over time. The
requirements of this section apply only to states having Class I areas
within their borders; the required calculations must be made for each
such Class I area. The EPA's 2018 Visibility Tracking Guidance \29\
provides recommendations to assist states in satisfying their
obligations under Sec. 51.308(f)(1); specifically, in developing
information on baseline, current, and natural visibility conditions,
and in making optional adjustments to the URP to account for the
impacts of international anthropogenic emissions and prescribed fires.
See 82 FR at 3103-05.
---------------------------------------------------------------------------
\29\ The 2018 Visibility Tracking Guidance references and relies
on parts of the 2003 Tracking Guidance: ``Guidance for Tracking
Progress Under the Regional Haze Rule,'' which can be found at
https://www.epa.gov/sites/default/files/2021-03/documents/tracking.pdf.
---------------------------------------------------------------------------
The RHR requires tracking of visibility conditions on two sets of
days: the clearest and the most impaired days. Visibility conditions
for both sets of days are expressed as the average deciview index for
the relevant five-year period (the period representing baseline or
current visibility conditions). The RHR provides that the relevant sets
of days for visibility tracking purposes are the 20% clearest (the 20%
of monitored days in a calendar year with the lowest values of the
deciview index) and 20% most impaired days (the 20% of monitored days
in a calendar year with the highest amounts of anthropogenic visibility
impairment).\30\ 40 CFR 51.301. A state must calculate visibility
conditions for both the 20% clearest and
[[Page 56699]]
20% most impaired days for the baseline period of 2000-2004 and the
most recent five-year period for which visibility monitoring data are
available (representing current visibility conditions). 40 CFR
51.308(f)(1)(i), (iii). States must also calculate natural visibility
conditions for the clearest and most impaired days,\31\ by estimating
the conditions that would exist on those two sets of days absent
anthropogenic visibility impairment. 40 CFR 51.308(f)(1)(ii). Using all
these data, states must then calculate, for each Class I area, the
amount of progress made since the baseline period (2000-2004) and how
much improvement is left to achieve to reach natural visibility
conditions.
---------------------------------------------------------------------------
\30\ This document also refers to the 20% clearest and 20% most
anthropogenically impaired days as the ``clearest'' and ``most
impaired'' or ``most anthropogenically impaired'' days,
respectively.
\31\ The RHR at 40 CFR 51.308(f)(1)(ii) contains an error
related to the requirement for calculating two sets of natural
conditions values. The rule says ``most impaired days or the
clearest days'' where it should say ``most impaired days and
clearest days.'' This is an error that was intended to be corrected
in the 2017 RHR Revisions but did not get corrected in the final
rule language. This is supported by the preamble text at 82 FR at
3098: ``In the final version of 40 CFR 51.308(f)(1)(ii), an
occurrence of ``or'' has been corrected to ``and'' to indicate that
natural visibility conditions for both the most impaired days and
the clearest days must be based on available monitoring
information.''
---------------------------------------------------------------------------
Using the data for the set of most impaired days only, states must
plot a line between visibility conditions in the baseline period and
natural visibility conditions for each Class I area to determine the
URP--the amount of visibility improvement, measured in deciviews, that
would need to be achieved during each implementation period to achieve
natural visibility conditions by the end of 2064. The URP is used in
later steps of the reasonable progress analysis for informational
purposes and to provide a non-enforceable benchmark against which to
assess a Class I area's rate of visibility improvement.\32\
Additionally, in the 2017 RHR Revisions, the EPA provided states the
option of proposing to adjust the endpoint of the URP to account for
impacts of anthropogenic sources outside the United States and/or
impacts of certain types of wildland prescribed fires. These
adjustments, which must be approved by the EPA, are intended to avoid
any perception that states should compensate for impacts from
international anthropogenic sources and to give states the flexibility
to determine that limiting the use of wildland-prescribed fire is not
necessary for reasonable progress. 82 FR at 3107 footnote 116.
---------------------------------------------------------------------------
\32\ Being on or below the URP is not a ``safe harbor''; i.e.,
achieving the URP does not mean that a Class I area is making
``reasonable progress'' and does not relieve a state from using the
four statutory factors to determine what level of control is needed
to achieve such progress. See, e.g., 82 FR at 3093.
---------------------------------------------------------------------------
The EPA's 2018 Visibility Tracking Guidance can be used to help
satisfy the 40 CFR 51.308(f)(1) requirements, including in developing
information on baseline, current, and natural visibility conditions,
and in making optional adjustments to the URP. In addition, the 2020
Data Completeness Memo provides recommendations on the data
completeness language referenced in Sec. 51.308(f)(1)(i) and provides
updated natural conditions estimates for each Class I area.
C. Long-Term Strategy for Regional Haze
The core component of a regional haze SIP submission is a long-term
strategy that addresses regional haze in each Class I area within a
state's borders and each Class I area outside the state that may be
affected by emissions from the state. The long-term strategy ``must
include the enforceable emissions limitations, compliance schedules,
and other measures that are necessary to make reasonable progress, as
determined pursuant to (f)(2)(i) through (iv).'' 40 CFR 51.308(f)(2).
The amount of progress that is ``reasonable progress'' is based on
applying the four statutory factors in CAA section 169A(g)(1) in an
evaluation of potential control options for sources of visibility
impairing pollutants, which is referred to as a ``four-factor''
analysis.\33\ The outcome of that analysis is the emission reduction
measures that a particular source or group of sources needs to
implement to make reasonable progress towards the national visibility
goal. See 40 CFR 51.308(f)(2)(i). Emission reduction measures that are
necessary to make reasonable progress may be either new, additional
control measures for a source, or they may be the existing emission
reduction measures that a source is already implementing. See 2019
Guidance at 43; 2021 Clarifications Memo at 8-10. Such measures must be
represented by ``enforceable emissions limitations, compliance
schedules, and other measures'' (i.e., any additional compliance tools)
in a state's long-term strategy in its SIP. 40 CFR 51.308(f)(2).
---------------------------------------------------------------------------
\33\ Four-factor analysis considers the four statutory factors
specified in CAA 169A(g)(1) and 40 CFR 51.308(f)(2)(i).
---------------------------------------------------------------------------
Section 51.308(f)(2)(i) provides the requirements for the four-
factor analysis. The first step of this analysis entails selecting the
sources to be evaluated for emission reduction measures; to this end,
the RHR requires states to consider ``major and minor stationary
sources or groups of sources, mobile sources, and area sources'' of
visibility impairing pollutants for potential four-factor control
analysis. 40 CFR 51.308(f)(2)(i). A threshold question at this step is
which visibility impairing pollutants will be analyzed. As the EPA
previously explained, consistent with the first implementation period,
the EPA generally expects that each state will analyze at least
SO2 and NOX in selecting sources and determining
control measures. See 2019 Guidance at 12, 2021 Clarifications Memo at
4. A state that chooses not to consider at least these two pollutants
should demonstrate why such consideration would be unreasonable. 2021
Clarifications Memo at 4.
While states have the option to analyze all sources, the 2019
Guidance explains that ``an analysis of control measures is not
required for every source in each implementation period,'' and that
``[s]electing a set of sources for analysis of control measures in each
implementation period is . . . consistent with the Regional Haze Rule,
which sets up an iterative planning process and anticipates that a
state may not need to analyze control measures for all its sources in a
given SIP revision.'' 2019 Guidance at 9. However, given that source
selection is the basis of all subsequent control determinations, a
reasonable source selection process ``should be designed and conducted
to ensure that source selection results in a set of pollutants and
sources the evaluation of which has the potential to meaningfully
reduce their contributions to visibility impairment.'' 2021
Clarifications Memo at 3.
The EPA explained in the 2021 Clarifications Memo that each state
has an obligation to submit a long-term strategy that addresses the
regional haze visibility impairment that results from emissions from
within that state. Thus, source selection should focus on the in-state
contribution to visibility impairment and be designed to capture a
meaningful portion of the state's total contribution to visibility
impairment in Class I areas. A state should not decline to select its
largest in-state sources on the basis that there are even larger out-
of-state contributors. 2021 Clarifications Memo at 4.\34\
---------------------------------------------------------------------------
\34\ Similarly, in responding to comments on the 2017 RHR
Revisions the EPA explained that ``[a] state should not fail to
address its many relatively low-impact sources merely because it
only has such sources and another state has even more low-impact
sources and/or some high impact sources.'' Responses to Comments on
Protection of Visibility: Amendments to Requirements for State
Plans; Proposed Rule (81 FR 26942, May 4, 2016) at 87-88.
---------------------------------------------------------------------------
Thus, while states have discretion to choose any source selection
[[Page 56700]]
methodology that is reasonable, whatever choices they make should be
reasonably explained. To this end, 40 CFR 51.308(f)(2)(i) requires that
a state's SIP submission include ``a description of the criteria it
used to determine which sources or groups of sources it evaluated.''
The technical basis for source selection, which may include methods for
quantifying potential visibility impacts such as emissions divided by
distance metrics, trajectory analyses, residence time analyses, and/or
photochemical modeling, must also be appropriately documented, as
required by 40 CFR 51.308(f)(2)(iii).
Once a state has selected the set of sources, the next step is to
determine the emissions reduction measures for those sources that are
necessary to make reasonable progress for the second implementation
period.\35\ This is accomplished by considering the four factors--``the
costs of compliance, the time necessary for compliance, and the energy
and nonair quality environmental impacts of compliance, and the
remaining useful life of any existing source subject to such
requirements.'' CAA 169A(g)(1). The EPA has explained that the four-
factor analysis is an assessment of potential emission reduction
measures (i.e., control options) for sources; ``use of the terms
`compliance' and `subject to such requirements' in section 169A(g)(1)
strongly indicates that Congress intended the relevant determination to
be the requirements with which sources would have to comply to satisfy
the CAA's reasonable progress mandate.'' 82 FR at 3091. Thus, for each
source it has selected for four-factor analysis,\36\ a state must
consider a ``meaningful set'' of technically feasible control options
for reducing emissions of visibility impairing pollutants. Id. at 3088.
The 2019 Guidance provides that ``[a] state must reasonably pick and
justify the measures that it will consider, recognizing that there is
no statutory or regulatory requirement to consider all technically
feasible measures or any particular measures. A range of technically
feasible measures available to reduce emissions would be one way to
justify a reasonable set.'' 2019 Guidance at 29.
---------------------------------------------------------------------------
\35\ The CAA provides that, ``[i]n determining reasonable
progress there shall be taken into consideration'' the four
statutory factors. CAA 169A(g)(1). However, in addition to four-
factor analyses for selected sources, groups of sources, or source
categories, a state may also consider additional emission reduction
measures for inclusion in its long-term strategy, e.g., from other
newly adopted, on-the-books, or on-the-way rules and measures for
sources not selected for four-factor analysis for the second
implementation period.
\36\ ``Each source'' or ``particular source'' is used here as
shorthand. While a source-specific analysis is one way of applying
the four factors, neither the statute nor the RHR requires states to
evaluate individual sources. Rather, states have ``the flexibility
to conduct four-factor analyses for specific sources, groups of
sources or even entire source categories, depending on state policy
preferences and the specific circumstances of each state.'' 82 FR at
3088. However, not all approaches to grouping sources for four-
factor analysis are necessarily reasonable; the reasonableness of
grouping sources in any particular instance will depend on the
circumstances and the manner in which grouping is conducted. If it
is feasible to establish and enforce different requirements for
sources or subgroups of sources, and if relevant factors can be
quantified for those sources or subgroups, then states should make a
separate reasonable progress determination for each source or
subgroup. 2021 Clarifications Memo at 7-8.
---------------------------------------------------------------------------
The EPA's 2021 Clarifications Memo provides further guidance on
what constitutes a reasonable set of control options for consideration:
``A reasonable four-factor analysis will consider the full range of
potentially reasonable options for reducing emissions.'' 2021
Clarifications Memo at 7. In addition to add-on controls and other
retrofits (i.e., new emissions reduction measures for sources), the EPA
explained that states should generally analyze efficiency improvements
for sources' existing measures as control options in their four-factor
analyses, as in many cases such improvements are reasonable given that
they typically involve only additional operation and maintenance costs.
Additionally, the 2021 Clarifications Memo provides that states that
have assumed a higher emissions rate than a source has achieved or
could potentially achieve using its existing measures should also
consider lower emissions rates as potential control options. That is, a
state should consider a source's recent actual and projected emission
rates to determine if it could reasonably attain lower emission rates
with its existing measures. If so, the state should analyze the lower
emission rate as a control option for reducing emissions. 2021
Clarifications Memo at 7. The EPA's recommendations to analyze
potential efficiency improvements and achievable lower emission rates
apply to both sources that have been selected for four-factor analysis
and those that have forgone a four-factor analysis on the basis of
existing ``effective controls.'' See 2021 Clarifications Memo at 5, 10.
After identifying a reasonable set of potential control options for
the sources it has selected, a state then collects information on the
four factors with regard to each option identified. The EPA has also
explained that, in addition to the four statutory factors, states have
flexibility under the CAA and RHR to reasonably consider visibility
benefits as an additional factor alongside the four statutory
factors.\37\ The 2019 Guidance provides recommendations for the types
of information that can be used to characterize the four factors (with
or without visibility), as well as ways in which states might
reasonably consider and balance that information to determine which of
the potential control options is necessary to make reasonable progress.
See 2019 Guidance at 30-36. The 2021 Clarifications Memo contains
further guidance on how states can reasonably consider modeled
visibility impacts or benefits in the context of a four-factor
analysis. 2021 Clarifications Memo at 12-13, 14-15. Specifically, the
EPA explained that while visibility can reasonably be used when
comparing and choosing between multiple reasonable control options, it
should not be used to summarily reject controls that are reasonable
given the four statutory factors. 2021 Clarifications Memo at 13.
Ultimately, while states have discretion to reasonably weigh the
factors and to determine what level of control is needed, Sec.
51.308(f)(2)(i) provides that a state ``must include in its
implementation plan a description of . . . how the four factors were
taken into consideration in selecting the measure for inclusion in its
long-term strategy.''
---------------------------------------------------------------------------
\37\ See, e.g., Responses to Comments on Protection of
Visibility: Amendments to Requirements for State Plans; Proposed
Rule (81 FR 26942, May 4, 2016), Docket ID Number EPA-HQ-OAR-2015-
0531, U.S. Environmental Protection Agency at 186; 2019 Guidance at
36-37.
---------------------------------------------------------------------------
As explained above, Sec. 51.308(f)(2)(i) requires states to
determine the emission reduction measures for sources that are
necessary to make reasonable progress by considering the four factors.
Pursuant to Sec. 51.308(f)(2), measures that are necessary to make
reasonable progress towards the national visibility goal must be
included in a state's long-term strategy and in its SIP.\38\ If the
outcome of a four-factor analysis is a new, additional emission
reduction measure for a source, that new measure is necessary to make
reasonable progress towards remedying existing anthropogenic visibility
impairment and must be included in the SIP. If the
[[Page 56701]]
outcome of a four-factor analysis is that no new measures are
reasonable for a source, continued implementation of the source's
existing measures is generally necessary to prevent future emission
increases and thus to make reasonable progress towards the second part
of the national visibility goal: preventing future anthropogenic
visibility impairment. See CAA 169A(a)(1). That is, when the result of
a four-factor analysis is that no new measures are necessary to make
reasonable progress, the source's existing measures are generally
necessary to make reasonable progress and must be included in the SIP.
However, there may be circumstances in which a state can demonstrate
that a source's existing measures are not necessary to make reasonable
progress. Specifically, if a state can demonstrate that a source will
continue to implement its existing measures and will not increase its
emissions rate, it may not be necessary to have those measures in the
long-term strategy to prevent future emissions increases and future
visibility impairment. The EPA's 2021 Clarifications Memo provides
further explanation and guidance on how states may demonstrate that a
source's existing measures are not necessary to make reasonable
progress. See 2021 Clarifications Memo at 8-10. If the state can make
such a demonstration, it need not include a source's existing measures
in the long-term strategy or its SIP.
---------------------------------------------------------------------------
\38\ States may choose to, but are not required to, include
measures in their long-term strategies beyond just the emission
reduction measures that are necessary for reasonable progress. See
2021 Clarifications Memo at 16. For example, states with smoke
management programs may choose to submit their smoke management
plans to the EPA for inclusion in their SIPs but are not required to
do so. See, e.g., 82 FR at 3108-09 (requirement to consider smoke
management practices and smoke management programs under 40 CFR
51.308(f)(2)(iv) does not require states to adopt such practices or
programs into their SIPs, although they may elect to do so).
---------------------------------------------------------------------------
As with source selection, the characterization of information on
each of the factors is also subject to the documentation requirement in
Sec. 51.308(f)(2)(iii). The reasonable progress analysis, including
source selection, information gathering, characterization of the four
statutory factors (and potentially visibility), balancing of the four
factors, and selection of the emission reduction measures that
represent reasonable progress, is a technically complex exercise, but
also a flexible one that provides states with bounded discretion to
design and implement approaches appropriate to their circumstances.
Given this flexibility, Sec. 51.308(f)(2)(iii) plays an important
function in requiring a state to document the technical basis for its
decision making so that the public and the EPA can comprehend and
evaluate the information and analysis the state relied upon to
determine what emission reduction measures must be in place to make
reasonable progress. The technical documentation must include the
modeling, monitoring, cost, engineering, and emissions information on
which the state relied to determine the measures necessary to make
reasonable progress. This documentation requirement can be met through
the provision of and reliance on technical analyses developed through a
regional planning process, so long as that process and its output has
been approved by all state participants. In addition to the explicit
regulatory requirement to document the technical basis of their
reasonable progress determinations, states are also subject to the
general principle that those determinations must be reasonably moored
to the statute.\39\ That is, a state's decisions about the emission
reduction measures that are necessary to make reasonable progress must
be consistent with the statutory goal of remedying existing and
preventing future visibility impairment.
---------------------------------------------------------------------------
\39\ See Arizona ex rel. Darwin v. U.S. EPA, 815 F.3d 519, 531
(9th Cir. 2016); Nebraska v. EPA, 812 F.3d 662, 668 (8th Cir. 2016);
North Dakota v. EPA, 730 F.3d 750, 761 (8th Cir. 2013); Oklahoma v.
EPA, 723 F.3d 1201, 1206, 1208-10 (10th Cir. 2013); cf. Nat'l Parks
Conservation Ass'n v. EPA, 803 F.3d 151, 165 (3d Cir. 2015); Alaska
Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 485, 490 (2004).
---------------------------------------------------------------------------
The four statutory factors (and potentially visibility) are used to
determine what emission reduction measures for selected sources must be
included in a state's long-term strategy for making reasonable
progress. Additionally, the RHR at 40 CFR 51.3108(f)(2)(iv) separately
provides five ``additional factors'' \40\ that states must consider in
developing their long-term strategies: (1) Emission reductions due to
ongoing air pollution control programs, including measures to address
reasonably attributable visibility impairment; (2) measures to reduce
the impacts of construction activities; (3) source retirement and
replacement schedules; (4) basic smoke management practices for
prescribed fire used for agricultural and wildland vegetation
management purposes and smoke management programs; and (5) the
anticipated net effect on visibility due to projected changes in point,
area, and mobile source emissions over the period addressed by the
long-term strategy. The 2019 Guidance provides that a state may satisfy
this requirement by considering these additional factors in the process
of selecting sources for four-factor analysis, when performing that
analysis, or both, and that not every one of the additional factors
needs to be considered at the same stage of the process. See 2019
Guidance at 21. The EPA provided further guidance on the five
additional factors in the 2021 Clarifications Memo, explaining that a
state should generally not reject cost-effective and otherwise
reasonable controls merely because there have been emission reductions
since the first planning period owing to other ongoing air pollution
control programs or merely because visibility is otherwise projected to
improve at Class I areas. Additionally, states generally should not
rely on these additional factors to summarily assert that the state has
already made sufficient progress and, therefore, no sources need to be
selected or no new controls are needed regardless of the outcome of
four-factor analyses. 2021 Clarifications Memo at 13.
---------------------------------------------------------------------------
\40\ The five ``additional factors'' for consideration in Sec.
51.308(f)(2)(iv) are distinct from the four factors listed in CAA
section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that states must
consider and apply to sources in determining reasonable progress.
---------------------------------------------------------------------------
Because the air pollution that causes regional haze crosses state
boundaries, Sec. 51.308(f)(2)(ii) requires a state to consult with
other states that also have emissions that are reasonably anticipated
to contribute to visibility impairment in a given Class I area.
Consultation allows for each state that impacts visibility in an area
to share whatever technical information, analyses, and control
determinations may be necessary to develop coordinated emission
management strategies. This coordination may be managed through inter-
and intra-RPO consultation and the development of regional emissions
strategies; additional consultations between states outside of RPO
processes may also occur. If a state, pursuant to consultation, agrees
that certain measures (e.g., a certain emission limitation) are
necessary to make reasonable progress at a Class I area, it must
include those measures in its SIP. 40 CFR 51.308(f)(2)(ii)(A).
Additionally, the RHR requires that states that contribute to
visibility impairment at the same Class I area consider the emission
reduction measures the other contributing states have identified as
being necessary to make reasonable progress for their own sources. 40
CFR 51.308(f)(2)(ii)(B). If a state has been asked to consider or adopt
certain emission reduction measures, but ultimately determines those
measures are not necessary to make reasonable progress, that state must
document in its SIP the actions taken to resolve the disagreement. 40
CFR 51.308(f)(2)(ii)(C). The EPA will consider the technical
information and explanations presented by the submitting state and the
state with which it disagrees when considering whether to approve the
state's SIP. See id.; 2019 Guidance at 53. Under all circumstances, a
state must document in
[[Page 56702]]
its SIP submission all substantive consultations with other
contributing states. 40 CFR 51.308(f)(2)(ii)(C).
D. Reasonable Progress Goals
Reasonable progress goals ``measure the progress that is projected
to be achieved by the control measures states have determined are
necessary to make reasonable progress based on a four-factor
analysis.'' 82 FR at 3091. Their primary purpose is to assist the
public and the EPA in assessing the reasonableness of states' long-term
strategies for making reasonable progress towards the national
visibility goal for Class I areas within the state. See 40 CFR
51.308(f)(3)(iii)-(iv). States in which Class I areas are located must
establish two RPGs, both in deciviews--one representing visibility
conditions on the clearest days and one representing visibility on the
most anthropogenically impaired days--for each area within their
borders. 40 CFR 51.308(f)(3)(i). The two RPGs are intended to reflect
the projected impacts, on the two sets of days, of the emission
reduction measures the state with the Class I area, as well as all
other contributing states, have included in their long-term strategies
for the second implementation period.\41\ The RPGs also account for the
projected impacts of implementing other CAA requirements, including
non-SIP based requirements. Because RPGs are the modeled result of the
measures in states' long-term strategies (as well as other measures
required under the CAA), they cannot be determined before states have
conducted their four-factor analyses and determined the control
measures that are necessary to make reasonable progress. See 2021
Clarifications Memo at 6.
---------------------------------------------------------------------------
\41\ RPGs are intended to reflect the projected impacts of the
measures all contributing states include in their long-term
strategies. However, due to the timing of analyses, control
determinations by other states, and other on-going emissions
changes, a particular state's RPGs may not reflect all control
measures and emissions reductions that are expected to occur by the
end of the implementation period. The 2019 Guidance provides
recommendations for addressing the timing of RPG calculations when
states are developing their long-term strategies on disparate
schedules, as well as for adjusting RPGs using a post-modeling
approach. 2019 Guidance at 47-48.
---------------------------------------------------------------------------
For the second implementation period, the RPGs are set for 2028.
Reasonable progress goals are not enforceable targets, 40 CFR
51.308(f)(3)(iii); rather, they ``provide a way for the states to check
the projected outcome of the [long-term strategy] against the goals for
visibility improvement.'' 2019 Guidance at 46. While states are not
legally obligated to achieve the visibility conditions described in
their RPGs, Sec. 51.308(f)(3)(i) requires that ``[t]he long-term
strategy and the reasonable progress goals must provide for an
improvement in visibility for the most impaired days since the baseline
period and ensure no degradation in visibility for the clearest days
since the baseline period.'' Thus, states are required to have emission
reduction measures in their long-term strategies that are projected to
achieve visibility conditions on the most impaired days that are better
than the baseline period and that show no degradation on the clearest
days compared to the clearest days from the baseline period. The
baseline period for the purpose of this comparison is the baseline
visibility condition--the annual average visibility condition for the
period 2000-2004. See 40 CFR 51.308(f)(1)(i), 82 FR at 3097-98.
So that RPGs may also serve as a metric for assessing the amount of
progress a state is making towards the national visibility goal, the
RHR requires states with Class I areas to compare the 2028 RPG for the
most impaired days to the corresponding point on the URP line
(representing visibility conditions in 2028 if visibility were to
improve at a linear rate from conditions in the baseline period of
2000-2004 to natural visibility conditions in 2064). If the most
impaired days RPG in 2028 is above the URP (i.e., if visibility
conditions are improving more slowly than the rate described by the
URP), each state that contributes to visibility impairment in the Class
I area must demonstrate, based on the four-factor analysis required
under 40 CFR 51.308(f)(2)(i), that no additional emission reduction
measures would be reasonable to include in its long-term strategy. 40
CFR 51.308(f)(3)(ii). To this end, 40 CFR 51.308(f)(3)(ii) requires
that each state contributing to visibility impairment in a Class I area
that is projected to improve more slowly than the URP provide ``a
robust demonstration, including documenting the criteria used to
determine which sources or groups [of] sources were evaluated and how
the four factors required by paragraph (f)(2)(i) were taken into
consideration in selecting the measures for inclusion in its long-term
strategy.'' The 2019 Guidance provides suggestions about how such a
``robust demonstration'' might be conducted. See 2019 Guidance at 50-
51.
The 2017 RHR, 2019 Guidance, and 2021 Clarifications Memo also
explain that projecting an RPG that is on or below the URP based on
only on-the-books and/or on-the-way control measures (i.e., control
measures already required or anticipated before the four-factor
analysis is conducted) is not a ``safe harbor'' from the CAA's and
RHR's requirement that all states must conduct a four-factor analysis
to determine what emission reduction measures constitute reasonable
progress. The URP is a planning metric used to gauge the amount of
progress made thus far and the amount left before reaching natural
visibility conditions. However, the URP is not based on consideration
of the four statutory factors and therefore cannot answer the question
of whether the amount of progress being made in any particular
implementation period is ``reasonable progress.'' See 82 FR at 3093,
3099-3100; 2019 Guidance at 22; 2021 Clarifications Memo at 15-16.
E. Monitoring Strategy and Other State Implementation Plan Requirements
Section 51.308(f)(6) requires states to have certain strategies and
elements in place for assessing and reporting on visibility. Individual
requirements under this section apply either to states with Class I
areas within their borders, states with no Class I areas but that are
reasonably anticipated to cause or contribute to visibility impairment
in any Class I area, or both. A state with Class I areas within its
borders must submit with its SIP revision a monitoring strategy for
measuring, characterizing, and reporting regional haze visibility
impairment that is representative of all Class I areas within the
state. SIP revisions for such states must also provide for the
establishment of any additional monitoring sites or equipment needed to
assess visibility conditions in Class I areas, as well as reporting of
all visibility monitoring data to the EPA at least annually. Compliance
with the monitoring strategy requirement may be met through a state's
participation in the Interagency Monitoring of Protected Visual
Environments (IMPROVE) monitoring network, which is used to measure
visibility impairment caused by air pollution at the 156 Class I areas
covered by the visibility program. 40 CFR 51.308(f)(6), (f)(6)(i),
(f)(6)(iv). The IMPROVE monitoring data is used to determine the 20%
most anthropogenically impaired and 20% clearest sets of days every
year at each Class I area and tracks visibility impairment over time.
All states' SIPs must provide for procedures by which monitoring
data and other information are used to determine the contribution of
emissions from within the state to regional haze visibility impairment
in affected Class I areas. 40 CFR 51.308(f)(6)(ii), (iii). Section
51.308(f)(6)(v) further requires
[[Page 56703]]
that all states' SIPs provide for a statewide inventory of emissions of
pollutants that are reasonably anticipated to cause or contribute to
visibility impairment in any Class I area; the inventory must include
emissions for the most recent year for which data are available and
estimates of future projected emissions. States must also include
commitments to update their inventories periodically. The inventories
themselves do not need to be included as elements in the SIP and are
not subject to the EPA's review as part of the Agency's evaluation of a
SIP revision.\42\ All states' SIPs must also provide for any other
elements, including reporting, recordkeeping, and other measures, that
are necessary for states to assess and report on visibility. 40 CFR
51.308(f)(6)(vi). Per the 2019 Guidance, a state may note in its
regional haze SIP that its compliance with the Air Emissions Reporting
Rule (AERR) in 40 CFR part 51, subpart A satisfies the requirement to
provide for an emissions inventory for the most recent year for which
data are available. To satisfy the requirement to provide estimates of
future projected emissions, a state may explain in its SIP how
projected emissions were developed for use in establishing RPGs for its
own and nearby Class I areas.\43\
---------------------------------------------------------------------------
\42\ See ``Step 8: Additional requirements for regional haze
SIPs'' in 2019 Guidance at 55.
\43\ Id.
---------------------------------------------------------------------------
Separate from the requirements related to monitoring for regional
haze purposes under 40 CFR 51.308(f)(6), the RHR also contains a
requirement at Sec. 51.308(f)(4) related to any additional monitoring
that may be needed to address visibility impairment in Class I areas
from a single source or a small group of sources. This is called
``reasonably attributable visibility impairment.'' \44\ Under this
provision, if the EPA or the FLM of an affected Class I area has
advised a state that additional monitoring is needed to assess
reasonably attributable visibility impairment, the state must include
in its SIP revision for the second implementation period an appropriate
strategy for evaluating such impairment.
---------------------------------------------------------------------------
\44\ The EPA's visibility protection regulations define
``reasonably attributable visibility impairment'' as ``visibility
impairment that is caused by the emission of air pollutants from
one, or a small number of sources.'' 40 CFR 51.301.
---------------------------------------------------------------------------
F. Requirements for Periodic Reports Describing Progress Towards the
Reasonable Progress Goals
Section 51.308(f)(5) requires a state's regional haze SIP revision
to address the requirements of paragraphs 40 CFR 51.308(g)(1) through
(5) so that the plan revision due in 2021 will serve also as a progress
report addressing the period since submission of the progress report
for the first implementation period. The regional haze progress report
requirement is designed to inform the public and the EPA about a
state's implementation of its existing long-term strategy and whether
such implementation is in fact resulting in the expected visibility
improvement. See 81 FR 26942, 26950 (May 4, 2016), (82 FR at 3119,
January 10, 2017). To this end, every state's SIP revision for the
second implementation period is required to describe the status of
implementation of all measures included in the state's long-term
strategy, including BART and reasonable progress emission reduction
measures from the first implementation period, and the resulting
emissions reductions. 40 CFR 51.308(g)(1) and (2).
A core component of the progress report requirements is an
assessment of changes in visibility conditions on the clearest and most
impaired days. For second implementation period progress reports, Sec.
51.308(g)(3) requires states with Class I areas within their borders to
first determine current visibility conditions for each area on the most
impaired and clearest days, 40 CFR 51.308(g)(3)(i), and then to
calculate the difference between those current conditions and baseline
(2000-2004) visibility conditions to assess progress made to date. See
40 CFR 51.308(g)(3)(ii). States must also assess the changes in
visibility impairment for the most impaired and clearest days since
they submitted their first implementation period progress reports. See
40 CFR 51.308(g)(3)(iii), (f)(5). Since different states submitted
their first implementation period progress reports at different times,
the starting point for this assessment will vary state by state.
Similarly, states must provide analyses tracking the change in
emissions of pollutants contributing to visibility impairment from all
sources and activities within the state over the period since they
submitted their first implementation period progress reports. See 40
CFR 51.308(g)(4), (f)(5). Changes in emissions should be identified by
the type of source or activity. Section 51.308(g)(5) also addresses
changes in emissions since the period addressed by the previous
progress report and requires states' SIP revisions to include an
assessment of any significant changes in anthropogenic emissions within
or outside the state. This assessment must explain whether these
changes in emissions were anticipated and whether they have limited or
impeded progress in reducing emissions and improving visibility
relative to what the state projected based on its long-term strategy
for the first implementation period.
G. Requirements for Federal Land Manager Coordination
CAA section 169A(d) requires that before a state holds a public
hearing on a proposed regional haze SIP revision, it must consult with
the appropriate FLM or FLMs; pursuant to that consultation, the state
must include a summary of the FLMs' conclusions and recommendations in
the notice to the public. Consistent with this statutory requirement,
the RHR also requires that states ``provide the [FLM] with an
opportunity for consultation, in person and at a point early enough in
the State's policy analyses of its long-term strategy emission
reduction obligation so that information and recommendations provided
by the [FLM] can meaningfully inform the State's decisions on the long-
term strategy.'' 40 CFR 51.308(i)(2). Consultation that occurs 120 days
prior to any public hearing or public comment opportunity will be
deemed ``early enough,'' but the RHR provides that in any event the
opportunity for consultation must be provided at least 60 days before a
public hearing or comment opportunity. This consultation must include
the opportunity for the FLMs to discuss their assessment of visibility
impairment in any Class I area and their recommendations on the
development and implementation of strategies to address such
impairment. 40 CFR 51.308(i)(2). For the EPA to evaluate whether FLM
consultation meeting the requirements of the RHR has occurred, the SIP
submission should include documentation of the timing and content of
such consultation. The SIP revision submitted to the EPA must also
describe how the state addressed any comments provided by the FLMs. 40
CFR 51.308(i)(3). Finally, a SIP revision must provide procedures for
continuing consultation between the state and FLMs regarding the
state's visibility protection program, including development and review
of SIP revisions, five-year progress reports, and the implementation of
other programs having the potential to contribute to impairment of
visibility in Class I areas. 40 CFR 51.308(i)(4).
IV. The EPA's Evaluation of North Dakota's Regional Haze Submission for
the Second Implementation Period
The EPA is proposing approval for the portions of North Dakota's
2022 SIP submission relating to CAA 169A and 40 CFR 51.308(f)(1):
calculations of baseline, current, and natural visibility
[[Page 56704]]
conditions, progress to date, and the uniform rate of progress; 40 CFR
51.308(f)(4): reasonably attributable visibility impairment; 40 CFR
51.308(f)(5): progress report requirements; and 40 CFR 51.308(f)(6):
monitoring strategy and other implementation plan requirements. The EPA
is proposing disapproval for the portions of North Dakota's 2022 SIP
submission relating to CAA 169A and 40 CFR 51.308(f)(2): long-term
strategy; 40 CFR 51.308(f)(3): reasonable progress goals; and 40 CFR
51.308(i): FLM consultation.
A. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress Under 40
CFR 51.308(f)(1)
Section 51.308(f)(1) requires states to determine the following for
``each mandatory Class I Federal area located within the State'':
baseline visibility conditions for the most impaired and clearest days,
natural visibility conditions for the most impaired and clearest days,
progress to date for the most impaired and clearest days, the
differences between current visibility conditions and natural
visibility conditions, and the URP. This section also provides the
option for states to propose adjustments to the URP line for a Class I
area to account for visibility impacts from anthropogenic sources
outside the United States and/or the impacts from wildland prescribed
fires that were conducted for certain specified objectives. 40 CFR
51.308(f)(1)(vi)(B).
North Dakota has two Class I areas located within the state:
Lostwood Wilderness Area and Theodore Roosevelt National Park. North
Dakota included visibility condition determinations for these Class I
areas in its 2022 SIP submission.
In its 2022 SIP submission, North Dakota determined that Lostwood
Wilderness Area has 2000-2004 baseline visibility conditions of 8.2
deciviews on the 20% clearest days and 18.3 deciviews on the 20% most
impaired days.\45\ North Dakota calculated an estimated natural
background visibility of 2.9 deciviews on the 20% clearest days and 5.9
deciviews on the 20% most impaired days.\46\ The current visibility
conditions, which are based on 2014-2018 monitoring data, were 7.5
deciviews on the clearest days and 16.2 deciviews on the most impaired
days, which are 4.6 deciviews and 10.3 deciviews greater than natural
conditions on the respective sets of days.\47\ North Dakota noted that
while the five-year rolling average IMPROVE data from 2014-2018
indicate that Lostwood Wilderness Area is 0.80 deciviews above the
unadjusted URP, that data also show that the area is 0.77 deciviews
below the URP when adjusted for international impacts and prescribed
fire.\48\ When the URP is adjusted for these impacts, an annual
decrease of 0.08 deciviews is needed to reach natural visibility on the
20% most impaired days.\49\
---------------------------------------------------------------------------
\45\ North Dakota's 2022 SIP submission, 49, ``Table 6:
``IMPROVE Sites Clearest and Most Impaired Days Values.''
\46\ Id. at 49, ``Table 7: ``Natural Visibility for the Most
Impaired and Clearest Days.''
\47\ Id. at 50, ``Table 8: ``Current (2014-2018) Visibility for
the Most Impaired and Clearest Days.''
\48\ Id. at 52, ``Figure 17: LWA Most Impaired Days Progress
from 2000-2018'' and ``Figure 21: LWA Most Impaired Days Progress
with Adjusted Glidepath from 2000-2018.''
\49\ Id. at 56, ``Figure 21: LWA Most Impaired Days Progress
with Adjusted Glidepath from 2000-2018.''
---------------------------------------------------------------------------
In its 2022 SIP submission, North Dakota determined that Theodore
Roosevelt National Park has 2000-2004 baseline visibility conditions of
7.8 deciviews on the 20% clearest days and 16.4 deciviews on the 20%
most impaired days.\50\ North Dakota calculated an estimated natural
background visibility of 3.0 deciviews on the 20% clearest days and 5.9
deciviews on the 20% most impaired days.\51\ The current visibility
conditions, which are based on 2014-2018 monitoring data, were 5.9
deciviews on the clearest days and 14.1 deciviews on the most impaired
days, which are 2.9 deciviews and 8.2 deciviews greater than natural
conditions on the respective sets of days.\52\ North Dakota noted that
while the five-year rolling average IMPROVE data from 2014-2018
indicates that Theodore Roosevelt National Park is 0.80 deciviews above
the unadjusted URP, the five-year rolling average IMPROVE data from
2014-2018 indicates that the park is 1.17 deciviews below the URP when
adjusted for international impacts and prescribed fire.\53\ When the
URP is adjusted for these impacts, an annual decrease of 0.06 deciviews
is needed to reach natural visibility on the 20% most impaired
days.\54\
---------------------------------------------------------------------------
\50\ Id. at 49, ``Table 6: ``IMPROVE Sites Clearest and Most
Impaired Days Values.''
\51\ Id. at 49, ``Table 7: ``Natural Visibility for the Most
Impaired and Clearest Days.''
\52\ Id. at 50, ``Table 8: ``Current (2014-2018) Visibility for
the Most Impaired and Clearest Days.''
\53\ Id. at 53, ``Figure 18: TRNP Most Impaired Days Progress
from 2000-2018'' and 57, ``Figure 22: TRNP Most Impaired Days
Progress with Adjusted Glidepath from 2000-2018.''
\54\ Id. at 57, ``Figure 22: TRNP Most Impaired Days Progress
with Adjusted Glidepath from 2000-2018.''
---------------------------------------------------------------------------
Based on this information, which is provided in section 3.2 of
North Dakota's 2022 SIP submission, the EPA finds that the visibility
condition calculations for Lostwood Wilderness Area and Theodore
Roosevelt National Park meet the requirements of 40 CFR 51.308(f)(1).
For this reason, the EPA proposes to approve the portions of North
Dakota's 2022 SIP submission relating to 40 CFR 51.308(f)(1):
calculations of baseline, current, and natural visibility conditions,
progress to date, and the uniform rate of progress.
B. North Dakota's Long-Term Strategy Under CAA 169A and 40 CFR
51.308(f)(2)
Each state having a Class I area within its borders or emissions
that may affect visibility in any Class I area outside the state must
develop a long-term strategy for making reasonable progress towards the
national visibility goal for each impacted Class I area. CAA
169A(b)(2)(B). As explained in the Background section of this document,
reasonable progress is achieved when all states contributing to
visibility impairment in a Class I area are implementing the measures
determined--through application of the four statutory factors to
sources of visibility impairing pollutants--to be necessary to make
reasonable progress. 40 CFR 51.308(f)(2)(i). Each state's long-term
strategy must include the enforceable emission limitations, compliance
schedules, and other measures that are necessary to make reasonable
progress. 40 CFR 51.308(f)(2). All new (i.e., additional) measures that
are the outcome of four-factor analyses are necessary to make
reasonable progress and must be in the long-term strategy. If the
outcome of a four-factor analysis and other measures necessary to make
reasonable progress is that no new measures are reasonable for a
source, that source's existing measures are necessary to make
reasonable progress, unless the state can demonstrate that the source
will continue to implement those measures and will not increase its
emission rate. Existing measures that are necessary to make reasonable
progress must also be in the long-term strategy. In developing its
long-term strategy, a state must also consider the five additional
factors in Sec. 51.308(f)(2)(iv). As part of its reasonable progress
determinations, the state must describe the criteria used to
[[Page 56705]]
determine which sources or group of sources were evaluated (i.e.,
subjected to four-factor analysis) for the second implementation period
and how the four factors were taken into consideration in selecting the
emission reduction measures for inclusion in the long-term strategy. 40
CFR 51.308(f)(2)(iii).
States may rely on technical information developed by the RPOs of
which they are members to select sources for four-factor analysis and
to conduct that analysis, as well as to satisfy the documentation
requirements under Sec. 51.308(f). Where an RPO has performed source
selection and/or four-factor analyses (or considered the five
additional factors in Sec. 51.308(f)(2)(iv)) for its member states,
those states may rely on the RPO's analyses for the purpose of
satisfying the requirements of Sec. 51.308(f)(2)(i) so long as the
states have a reasonable basis to do so and all state participants in
the RPO process have approved the technical analyses. 40 CFR
51.308(f)(3)(iii). States may also satisfy the requirement of Sec.
51.308(f)(2)(ii) to engage in interstate consultation with other states
that have emissions that are reasonably anticipated to contribute to
visibility impairment in a given Class I area under the auspices of
intra- and inter-RPO engagement.
The EPA is proposing to disapprove North Dakota's long-term
strategy for the second planning period. As detailed in this notice of
proposed rulemaking, we find that North Dakota has not met the
requirements of CAA 169A(b)(2) and Sec. 51.308(f)(2) on two separate
grounds: (1) it relied on non-statutory rationales to reject controls
it evaluated under the four statutory factors at Coyote Station and
Antelope Valley; and (2) it failed to consider the four factors for
Coal Creek and unreasonably rejected controls at Coal Creek and Leland
Olds.
1. North Dakota's Long-Term Strategy Under CAA 169A and 40 CFR
51.308(f)(2)(i)
Section 169A(b)(2) of the CAA requires each state in which any
Class I area is located or ``the emissions from which may reasonably be
anticipated to cause or contribute to any impairment of visibility'' in
a Class I area to have a plan for making reasonable progress toward the
national visibility goal. CAA section 169A(g)(1) specifies: ``[I]n
determining reasonable progress there shall be taken into consideration
the costs of compliance, the time necessary for compliance, and the
energy and nonair quality environmental impacts of compliance, and the
remaining useful life of any existing source subject to such
requirements.'' \55\ The RHR implements this statutory requirement in
40 CFR 51.308(f) for the second and subsequent planning periods for
regional haze. 40 CFR 51.308(f) requires states to submit a long-term
strategy that addresses regional haze visibility impairment for each
mandatory Class I area within the state and for each mandatory Class I
area located outside the state that may be affected by emissions from
the state. 40 CFR 51.308(f)(2)(i) lays out the CAA 169A four-factor
criteria for the evaluation and development of the long-term strategy.
---------------------------------------------------------------------------
\55\ We refer to the CAA section 169A(g)(1) requirements as the
four factors.
---------------------------------------------------------------------------
In its 2022 SIP submission, North Dakota focused its control
strategy analysis for the second planning period on emissions of
NOX and SO2. NOX and SO2
are the two main pollutants that react to form ammonium nitrates and
ammonium sulfates, the main visibility impairing pollutants that affect
visibility at Class I areas in North Dakota on the most impaired days.
In North Dakota, point sources are the largest contributors to
SO2 and NOX. Thus, North Dakota focused on
existing point sources in this planning period. North Dakota also
evaluated oil and gas upstream operations.
North Dakota selected ten facilities for four-factor analysis:
Coyote Station, Antelope Valley, Milton R. Young Station, Coal Creek
Station, Leland Olds Station, Heskett Station, Little Knife Gas Plant,
Tioga Gas Plant, Northern Border Compressor Station #4, and Synfuels.
Based on an analysis of the four factors, North Dakota declined to
require additional emissions limitations, compliance schedules, or
control measures at the selected sources. It determined that existing
measures for all ten facilities comprise what is necessary to make
reasonable progress and included those measures in its long-term
strategy for the second implementation period. As detailed below, we
are proposing to disapprove North Dakota's long-term strategy because
the State did not meet the requirements of CAA 169A(b)(2), CAA
169A(g)(1), and 40 CFR 51.308(f)(2) by improperly relying on non-
statutory considerations in its evaluation of Coyote Station and
Antelope Valley and unreasonably rejecting controls at Coal Creek and
Leland Olds.
a. Reliance on Non-Statutory Considerations To Reject Reasonable
Controls at Coyote Station and Antelope Valley
Coyote Station and Antelope Valley are EGUs located in Mercer
County, North Dakota. Coyote Station is a single unit EGU with a
capacity to produce approximately 450 megawatts (MW) per hour of
electricity. Antelope Valley is a two-unit EGU. Each unit at Antelope
Valley has the capacity to produce approximately 470 MW per hour of
electricity. For Coyote Station and Antelope Valley, North Dakota
evaluated the time necessary for compliance, energy and nonair quality
environmental impacts, and remaining useful life, ultimately concluding
that these factors were not significant enough to eliminate any of the
potential control measures the State identified. Of the four statutory
factors, North Dakota considered the costs of compliance most heavily
in its identification of controls for modeling review and to determine
whether those controls are necessary for reasonable progress.\56\ For
Coyote Station, North Dakota evaluated two sets of controls: (1)
selective non-catalytic reduction (SNCR) for NOX control (at
$1,700/ton of NOX removed) and replacement of the existing
SO2 absorber (at $1,800/ton of SO2 removed),
which are consistent with control technologies and emissions rates of
similar EGUs subject to the BART requirements; and (2) modification of
the flue gas desulfurization (FGD) controls for SO2 (at
$400/ton of SO2 removed), which would limit capital
expenditures and facility modifications.\57\ For Antelope Valley, North
Dakota evaluated an SO2 control of increasing the
stoichiometric ratio \58\ on the existing FGD (at $700/ton of
SO2 removed), in line with control technologies and
emissions rates of similar EGUs subject to the BART requirements; it
did not select any NOX controls for evaluation.\59\
---------------------------------------------------------------------------
\56\ North Dakota's 2022 SIP submission at 99, 101.
\57\ Id. at 99-100. North Dakota did not determine these costs
to be unreasonable in its 2022 SIP submission.
\58\ Stoichiometric ratio relates to the efficiency of the use
of the reagent that reacts with SO2. Stoichiometric ratio
is defined as moles of reagent per mole of SO2.
Increasing the stoichiometric ratio will reduce the emission of
SO2.
\59\ North Dakota's 2022 SIP submission at 101-02. North Dakota
did not determine the costs of the evaluated controls to be
unreasonable in its 2022 SIP submission.
---------------------------------------------------------------------------
Following its evaluation of controls under the four-factor
analysis, the State then conducted a visibility modeling evaluation to
assess the visibility improvements that could result from installation
of controls at Coyote Station
[[Page 56706]]
and Antelope Valley. North Dakota then declined to impose new emission
limits on Coyote Station and Antelope Valley associated with the
controls evaluated through its four-factor analysis, citing two
separate bases: (1) the modeling showed no significant change in
visibility at Lostwood Wilderness Area and Theodore Roosevelt National
Park because improvements were smaller than could be perceived by an
unaided human eye; and (2) Lostwood Wilderness Area and Theodore
Roosevelt National Park were projected to achieve the adjusted URP by
2028.\60\ North Dakota made no argument that the controls were not
cost-effective. The State's rationales, whether individually or in
combination, are not supported by the CAA and the RHR and do not
justify North Dakota's rejection of cost-effective \61\ and otherwise
reasonable controls at Coyote Station and Antelope Valley.
---------------------------------------------------------------------------
\60\ Id. at 100, 102.
\61\ The 2019 Guidance emphasized that ``[w]hen the cost/ton of
a possible measure is within the range of the cost/ton values that
have been incurred multiple times by sources of similar type to meet
regional haze requirements or any other CAA requirement, this weighs
in favor of concluding that the cost of compliance is not an
obstacle to the measure being considered necessary to make
reasonable progress.'' 2019 Guidance at 40. The NOX and
SO2 controls that North Dakota evaluated for Coyote
Station and Antelope Valley range from $400/ton to $1800/ton. North
Dakota did not determine these costs to be unreasonable. Indeed,
these cost-effectiveness values are in line with--and in some cases
well below--those 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. 6, 2012) (North Dakota); 77 FR 24794, 24817 (Apr. 25,
2012) (proposed), finalized at 77 FR 51915 (Aug. 28, 2012) (New
York); 77 FR 18052, 18070-71 (Mar. 26, 2012) (proposed), finalized
at 77 FR 76871 (Dec. 31, 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.
---------------------------------------------------------------------------
i. North Dakota Unreasonably Rejected Controls Based on Visibility
Modeling
North Dakota used two emission control scenarios to model potential
visibility improvements at Theodore Roosevelt National Park and
Lostwood Wilderness. Visibility modeling for the first scenario
(installing controls similar to BART at Coyote Station and increasing
the stoichiometric ratio on the existing FGD unit at Antelope Valley)
resulted in projected visibility improvement of 0.10 deciviews at
Lostwood Wilderness Area and 0.08 deciviews at Theodore Roosevelt
National Park. Visibility modeling for the second scenario (installing
controls at Coyote Station based on ``limited capital expenditure and
facility modifications, while still achieving sizeable [emission]
reductions'') produced projected visibility improvement of 0.04
deciviews at Lostwood Wilderness Area and 0.03 deciviews at Theodore
Roosevelt National Park.\62\ North Dakota rejected both control
scenarios for inclusion in its long-term strategy because these
visibility improvements ``are not considered significant since the
improvements are smaller than what is perceptible by an unaided human
eye.'' \63\
---------------------------------------------------------------------------
\62\ North Dakota's 2022 SIP submission at 100.
\63\ Id. at 100 (Coyote Station), 102 (Antelope Valley).
---------------------------------------------------------------------------
As explained in section B.1.a.i.(a) below, we find that North
Dakota unreasonably relied on visibility modeling to reject controls at
Coyote Station and Antelope Valley. Whether visibility impacts are
``significant'' or ``perceptible'' is not a sufficient basis to reject
cost-effective and otherwise reasonable emission controls under the CAA
and RHR. In addition, North Dakota's visibility analysis failed to
account for visibility impacts at out-of-state Class I areas that may
be affected by emissions from North Dakota.
(a) Modeling Showing No ``Significant'' Change in Visibility Is Not a
Sufficient Basis To Reject Controls Under CAA 169A and 40 CFR
51.308(f)(2)(i)
North Dakota improperly rejected controls for Coyote Station and
Antelope Valley that it evaluated via the four-factor analysis required
by CAA 169A(g)(1) and 40 CFR 51.308(f)(2)(i) based on consideration of
whether the visibility improvement from those controls would be
``significant.'' The State's rationale lacks foundation in both the
text and the purpose of the CAA and RHR. Nowhere in the statute or
regulations is there a requirement that control measures produce
perceptible visibility improvements to be considered necessary to make
reasonable progress at a particular Class I area. The 2017 RHR
explained: ``Regional haze is visibility impairment that is caused by
the emission of air pollutants from numerous sources located over a
wide geographic area. At any given Class I area, hundreds or even
thousands of individual sources may contribute to regional haze. Thus,
it would not be appropriate for a state to reject a control measure (or
measures) because its effect on the RPG is subjectively assessed as not
`meaningful.' '' \64\ Even though the visibility impacts of emissions
from some individual sources may not be ``perceptible'' (as determined
by North Dakota), those sources may still have a meaningful impact on
visibility in the aggregate.\65\ Achieving Congress's national goal
will require serious evaluation of control measures at Antelope Valley
and Coyote Station, particularly because the largest individual
contributors to visibility impairment have already been controlled or
retired.\66\
---------------------------------------------------------------------------
\64\ 82 FR at 3093.
\65\ 2021 Clarifications Memo at 14.
\66\ Id.
---------------------------------------------------------------------------
After evaluating control measures for Coyote Station and Antelope
Valley using four-factor analysis, North Dakota then determined, based
on the results of visibility modeling, that those controls were not
necessary to make reasonable progress toward meeting the national goal
without tying that determination back to the four statutory factors.
The CAA and RHR are clear that the four statutory factors must be
considered when determining the enforceable emissions limitations,
schedules of compliance, or other measures that are necessary for
reasonable progress toward meeting the national goal. Nothing in the
language of either the CAA or the RHR suggests that non-statutory
factors, such as whether visibility improvement is ``perceptible'' or
``significant,'' can outweigh the results of an analysis based on those
factors explicitly prescribed in the statute. As the EPA has previously
explained, states should not use visibility impacts to summarily
dismiss cost-effective potential controls,\67\ as North Dakota has
done.\68\ The EPA has interpreted the CAA and RHR to allow states to
consider visibility alongside the four statutory factors. For example,
visibility modeling can be used to compare the visibility benefits of
cost-effective controls selected through four-factor analysis to
determine which controls produce the greatest visibility benefits
compared to their costs, or prioritizing which among several sources
should install controls during a planning period.\69\ By contrast,
North
[[Page 56707]]
Dakota employed the non-statutory factor of ``insignificant''
visibility benefit as the basis for rejecting controls, using it to
outweigh controls shown to be reasonable by proper application of the
four statutory factors. This is inconsistent with the CAA.
---------------------------------------------------------------------------
\67\ Id. at 13.
\68\ North Dakota's 2022 SIP submission at 100 (concluding that
``[s]ince the modeling has indicated no expected significant change
in visibility . . . the Department does not believe any additional
SO2 or NOX controls at Coyote should be
required for installation during this planning period''), 102
(reaching same conclusion for Antelope Valley).
\69\ 2021 Clarifications Memo at 12-13.
---------------------------------------------------------------------------
Recent annual emissions data from EPA's Clean Air Markets Program
Data also contradict North Dakota's conclusion that no controls are
needed for Antelope Valley and Coyote Station due to the lack of
``significant'' visibility improvement for otherwise cost-effective
controls. In fact, Antelope Valley and Coyote Station ranked 17th and
18th, respectively, in facility-wide SO2 emissions across
the United States.\70\ Across all states, North Dakota's EGU
SO2 emissions ranked 10th.\71\ The magnitude of
SO2 emissions from Antelope Valley and Coyote Station
specifically, as well as all of North Dakota's EGUs statewide, combined
with the outcome of the four-factor analyses, emphasize that emission
reductions at Antelope Valley and Coyote Station from additional
SO2 controls could result in meaningful improvement at
impacted Class I areas and achieve reasonable progress.
---------------------------------------------------------------------------
\70\ ``CAMPD Emissions Custom Data Download,'' available in the
docket for this action.
\71\ Id.
---------------------------------------------------------------------------
Additionally, even if using ``insignificant'' visibility benefit to
outweigh the four statutory factors were allowable, North Dakota relied
on an overly narrow analysis of the visibility modeling. The State
considered projected visibility improvements only on the most impaired
days, as opposed to analyzing projected visibility improvements for all
of the days, to reject controls at Coyote Station and Antelope
Valley.\72\ The CAA and RHR, however, require states to make reasonable
progress toward both remedying any existing and preventing any future
visibility impairment; focusing on only the most impaired days ignores
the latter statutory directive.\73\ As the EPA has previously
explained, assessing overall visibility impairment on the 20 percent
most impaired and clearest days is the required metric for tracking
visibility impairment at Class I areas.\74\ Assessing modeled
visibility improvement on only the most impaired days may not
accurately reflect individual sources' contribution to overall
visibility impairment at Class I areas.\75\ Depending on wind direction
and other meteorological factors, emissions from a single source may
not always or frequently impact a particular Class I area, but there
may be individual day visibility impacts that are important to consider
(both within the set of 20 percent most impaired days and outside that
set of days). Thus, the EPA has recommended examination of the maximum
daily visibility impact on all days as a more meaningful metric for
individual source visibility modeling.\76\
---------------------------------------------------------------------------
\72\ North Dakota's 2022 SIP submission, 100, 102.
\73\ CAA 169A(a)(1), (b)(2)(B), and (g)(1); 40 CFR
51.308(f)(2)(i).
\74\ 40 CFR 51.308(f)(1); 2019 Guidance at 15.
\75\ 2019 Guidance at 15-16.
\76\ Id.
---------------------------------------------------------------------------
Finally, even if these values from the modeled visibility
improvement projections adequately accounted for the important
meteorological variability and other parameters, North Dakota
improperly discounted these values in formulating its long-term
strategy. Put into the proper context, visibility improvements in two
Class I areas in the range of 0.03 to 0.04 deciviews (in the case of
``limited capital expenditure'' controls at just one source, Coyote
Station) and 0.08 to 0.10 deciviews (in the case of BART-consistent and
modification-based controls at Coyote Station and Antelope Valley) may
be considered a meaningful improvement. Because regional haze is caused
by hundreds of thousands of sources across a wide geographic area, very
few if any sources will individually have impacts that would meet a
threshold considered perceptible to the human eye.\77\ Nonetheless,
these impacts, even if not individually perceptible, have a meaningful
impact on visibility in Class I areas in the aggregate.\78\
---------------------------------------------------------------------------
\77\ 2021 Clarifications Memo at 14.
\78\ Id.
---------------------------------------------------------------------------
(b) North Dakota Failed To Consider Visibility Impacts at Out-of-State
Class I Areas
North Dakota's reliance on visibility modeling to reject controls
at Coyote Station and Antelope Valley is also unreasonable because it
failed to consider visibility impacts at out-of-state Class I areas.
North Dakota modeled potential visibility improvements only at its two
in-state Class I areas: Theodore Roosevelt National Park and Lostwood
Wilderness Area. However, the record shows that North Dakota sources
are reasonably anticipated to cause or contribute to visibility
impairment at out-of-state Class I areas including Medicine Lake
Wilderness Area, Badlands National Park, Voyageurs National Park, and
Boundary Waters Canoe Area Wilderness. North Dakota's evaluation of
visibility improvements did not consider these out-of-state Class I
areas; in fact, the long-term strategy chapter (section 5) of North
Dakota's 2022 SIP submission does not even reference out-of-state Class
I areas. Thus, North Dakota's evaluation of visibility improvements,
which it relied on to determine that controls at Coyote Station and
Antelope Valley are not necessary to make reasonable progress at Class
I areas that may be affected by emissions from North Dakota, is not
supported by the record.
North Dakota's 2022 SIP submission includes numerous data points
showing the impact of North Dakota sources on out-of-state Class I
areas. However, it is not entirely clear whether North Dakota made a
determination on whether its sources ``may reasonably be anticipated to
cause or contribute to any impairment of visibility'' in those out-of-
state Class I areas.\79\ On the one hand, North Dakota asserted that
``[d]ue to the insignificant impacts from North Dakota sources on out
of state CIAs, no sources were identified as reasonably anticipated to
impact out of state CIAs.'' \80\ On the other, North Dakota also
repeatedly acknowledged, based on its review of WRAP visibility
modeling data, that its sources potentially contribute to visibility
impairment in several out-of-state Class I areas.\81\ Based on our
review of WRAP Weighted Emission Potential (WEP) \82\ results, WRAP
source-apportionment data available via WRAP's Technical Support System
(TSS), and visibility impairment contribution modeling from Minnesota's
2022 SIP submission, we find that North Dakota sources are reasonably
anticipated to contribute to impairment in out-of-state Class I areas
including Medicine Lake Wilderness Area, Badlands National Park,
Voyageurs National Park, and Boundary Waters Canoe Area Wilderness.
Thus, North Dakota was required to develop a long-term strategy that
includes the emission reduction measures necessary to make reasonable
progress in both in-state and out-of-state Class I areas that may be
affected by emissions from North Dakota.
---------------------------------------------------------------------------
\79\ CAA 169A(b)(2).
\80\ North Dakota's 2022 SIP submission at 39.
\81\ Id., appendix C.3.3-C.3.9, C.3.12-C.3.13, C.3.16.
\82\ WEP is a quantitative method of analyzing how pollutants
from particular sources may be transported to other areas.
---------------------------------------------------------------------------
For impacts on Montana's Class I areas, North Dakota states in its
2022 SIP submission that Figure 14 in appendix C.3-9 (WEP results for
Medicine Lake Wilderness Area in Montana) ``shows that North Dakota EGU
sources have some potential for impairment regarding SO2 and
NOX.'' Also, in appendix C.3 of North Dakota's
[[Page 56708]]
2022 SIP submission, North Dakota states that ``Figure 15 demonstrates
the potential for impairment from North Dakota oil and gas sources.''
In Figures 14 and 15, sources in the western half of North Dakota have
ammonium nitrate and ammonium sulfate extinction weighted residence
time impacts as large as 5 to 10% of the total extinction weighted
residence time at Medicine Lake Wilderness Area.\83\ Thus, Figures 14
and 15 clearly show potential for impairment of Medicine Lake
Wilderness Area from both North Dakota EGU and oil and gas sources.
North Dakota's own data, presented in Figures 14 and 15, demonstrates
the potential for impairment of visibility at Medicine Lake Wilderness
Area from sources within North Dakota.
---------------------------------------------------------------------------
\83\ North Dakota's 2022 SIP submission, 42 (Figure 14) and 44
(Figure 15). While there is no numerical threshold in the CAA or RHR
for determining when a state ``may be reasonably anticipated to
cause or contribute'' to a Class I area, the Ninth Circuit has
interpreted the language ``may reasonably be anticipated to cause or
contribute'' under CAA section 169A(b)(2) to establish an extremely
low triggering threshold for requiring a source to control emissions
for the purposes of addressing its impact on Class I areas. Central
Arizona Water Conservation Dist. v. EPA, 990 F.2d 1531 (1993). The
EPA referenced this decision in the 1999 Regional Haze Rule, noting
that the court found that the language ``may reasonably be
anticipated to cause or contribute'' establishes an ``extremely low
triggering threshold'' for requiring a source to control emissions,
adding that ``the NAS [National Academy of Sciences] correctly noted
that Congress has not required ironclad scientific certainty
establishing the precise relationship between a source's emission
and resulting visibility impairment.'' 64 FR at 35721.
---------------------------------------------------------------------------
In addition, the data in WRAP's TSS indicate that North Dakota
sources are reasonably anticipated to impact Medicine Lake Wilderness
Area. The EPA used WRAP's State Source Group Contributions to U.S.
Anthropogenic Impairment tool for Medicine Lake Wilderness Area to
analyze North Dakota sources' contribution to visibility impairment in
that area. In terms of both ammonium sulfate extinction (0.86
Mm-1) and ammonium nitrate extinction (0.99
Mm-1), North Dakota had a greater impact on visibility
impairment than any other WRAP state, including Montana (0.64
Mm-1 ammonium nitrate extinction and 0.57 Mm-1
ammonium sulfate extinction), where Medicine Lake Wilderness Area is
located.\84\ Even with all this data, North Dakota did not consider the
visibility impacts on Medicine Lake Wilderness Area when it rejected
controls at Coyote Station and Antelope Valley, following four-factor
analysis, on the basis that the associated visibility benefits at Class
I areas were not significant enough to justify inclusion of those
controls in its long-term strategy.
---------------------------------------------------------------------------
\84\ ``TSS XY Chart--Product #XMTP_SASB_LUCS.'' WRAP Technical
Support System (TSS); CSU and the Cooperative Institute for Research
in the Atmosphere (CIRA), 04 Dec 2023.
---------------------------------------------------------------------------
For impacts on South Dakota's Class I areas, North Dakota's
analysis of WEP results indicates that in-state potential contributions
to impairment to Badlands National Park are due to emissions from the
EGU and oil and gas sectors. In Figure 21 of appendix C.3-13 of North
Dakota's 2022 SIP submission, several sources in the western half of
North Dakota show impacts greater than 0.5% to 10% of the total
extinction weighted residence time at Badlands National Park.\85\
Figure 22 in North Dakota's 2022 SIP submission shows EGU ammonium
nitrate and ammonium sulfate extinction weighted residence time impacts
of 1 to 10% of the total extinction weighted residence time at Badlands
National Park.\86\ In Figure 23, multiple grid cells in North Dakota
with oil and gas sources show contributions of 1 to 3% of the total
extinction weighted residence time at Badlands National Park.\87\
---------------------------------------------------------------------------
\85\ See footnote 55.
\86\ North Dakota's 2022 SIP submission, appendix C.3-13.
\87\ Id.
---------------------------------------------------------------------------
In addition, WRAP's State Source Group Contributions to US
Anthropogenic Impairment tool for Badlands National Park shows that
visibility impairing pollutants from North Dakota sources contribute
more to visibility impairment at Badlands National Park than any other
state. In fact, North Dakota sources have a greater contribution to
visibility impairment at Badlands National Park than sources in South
Dakota, where Badlands National Park is located.\88\ North Dakota
sources contribute ammonium sulfate extinction of 0.74 Mm-1
and ammonium nitrate extinction of 0.36 Mm-1, while South
Dakota sources contribute ammonium sulfate extinction of 0.03
Mm-1 and ammonium nitrate extinction of 0.13
Mm-1.\89\ Here too, North Dakota failed to consider
visibility impacts on Badlands National Park when it rejected controls
at Coyote Station and Antelope Valley, following four-factor analysis,
on the basis that the associated visibility benefits at Class I areas
were not significant enough to justify inclusion of those controls in
its long-term strategy.
---------------------------------------------------------------------------
\88\ ``TSS XY Chart--Product #XMTP_SASB_LUCS.'' WRAP Technical
Support System (TSS); CSU and the Cooperative Institute for Research
in the Atmosphere (CIRA), 04 Dec 2023.
\89\ Id.
---------------------------------------------------------------------------
For impacts on Minnesota Class I areas, North Dakota states in
Figure 10 in appendix C.3-7 of its 2022 SIP submission (WEP results for
Voyageurs National Park in Minnesota) that ``North Dakota EGU sources
show some potential for impairment regarding SO2.'' \90\
North Dakota considered the WEP results at Voyageurs National Park as
reflective of the impairment at Boundary Waters Canoe Area Wilderness
and did not perform a separate WEP analysis for that area.
---------------------------------------------------------------------------
\90\ North Dakota's 2022 SIP submission, appendix C.3-7.
---------------------------------------------------------------------------
The data in WRAP's TSS indicate that North Dakota sources are
reasonably anticipated to impact Voyageurs National Park. The EPA used
WRAP's State Source Group Contributions to US Anthropogenic Impairment
tool for Voyageurs National Park to analyze North Dakota sources'
contribution to visibility impairment in that area. In terms of both
ammonium sulfate extinction (0.55 Mm-1) and ammonium nitrate
extinction (0.57 Mm-1), North Dakota had a greater impact on
visibility impairment than any other WRAP state.\91\
---------------------------------------------------------------------------
\91\ ``TSS XY Chart--Product #XMTP_SASB_LUCS.'' WRAP Technical
Support System (TSS); CSU and the Cooperative Institute for Research
in the Atmosphere (CIRA), 04 Dec 2023. WRAP states include Alaska,
Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New
Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and
Wyoming.
---------------------------------------------------------------------------
Further, Minnesota performed modeling in its 2022 SIP submission to
assess contributions to visibility impairment in its two Class I areas:
Voyageurs National Park and Boundary Waters Canoe Area Wilderness. This
modeling showed that North Dakota contributed 5.9% of the total
visibility impairment at Voyageurs National Park and 4.8% of the total
visibility impairment at Boundary Waters Canoe Area Wilderness.\92\
These contributions are higher than any other state besides Minnesota.
According to Minnesota's 2022 SIP submission, Minnesota began state-to-
state consultation with North Dakota in March 2021, and informed North
Dakota about its potential contributions to Minnesota Class I areas in
June 2022, prior to when North Dakota submitted its 2022 SIP
submission.\93\ And again, even with all this data, North Dakota did
not consider impacts on Voyagers National Park and Boundary Waters
Canoe Area Wilderness when it rejected controls for Coyote Station and
Antelope Valley, following four-factor analysis, on the basis that the
associated visibility benefits at Class I areas were not significant
enough to justify requiring those controls in its long-term strategy.
---------------------------------------------------------------------------
\92\ Minnesota's 2022 SIP submission, 31.
\93\ Id. at 144.
---------------------------------------------------------------------------
In sum, data from the WEP analysis, WRAP's TSS, and visibility
modeling performed by Minnesota indicate that
[[Page 56709]]
North Dakota sources are reasonably anticipated to cause or contribute
to visibility impairment at out-of-state Class I areas including
Medicine Lake Wilderness Area, Badlands National Park, Voyageurs
National Park, and Boundary Waters Canoe Area Wilderness. When it
considered the visibility improvements associated with the potential
emission controls it evaluated through four-factor analysis, however,
North Dakota only considered visibility impacts at in-state Class I
areas. Thus, the visibility improvement values that North Dakota
characterized as insignificant did not reflect potential improvements
at any affected out-of-state Class I areas. As a result, North Dakota's
evaluation of visibility improvements and its subsequent conclusion
that emission controls at Coyote Station and Antelope Valley are not
necessary to make reasonable progress at Class I areas are not
adequately supported on the record.
ii. Projections That North Dakota Class I Areas Will Meet the Adjusted
Uniform Rate of Progress Is Not a Sufficient Basis To Reject Controls
Under 40 CFR 51.308(f)(2)(i)
In rejecting controls it evaluated for Coyote Station and Antelope
Valley through four-factor analysis, North Dakota also reasoned that
Lostwood Wilderness Area and Theodore Roosevelt National Park were
projected to achieve the adjusted URP by 2028.\94\ As the EPA has
consistently explained, it is not appropriate for states to use the URP
as a ``safe harbor'' to conclude that additional controls, including
potentially cost-effective and otherwise reasonable controls, are not
necessary for reasonable progress on the basis that Class I areas are
below their URPs. The 2017 RHR explains:
---------------------------------------------------------------------------
\94\ North Dakota's 2022 SIP submission, 100, 102.
---------------------------------------------------------------------------
The CAA requires that each SIP revision contain long-term
strategies for making reasonable progress, and that in determining
reasonable progress states must consider the four statutory factors.
Treating the URP as a safe harbor would be inconsistent with the
statutory requirement that states assess the potential to make further
reasonable progress towards [the] natural visibility goal in every
implementation period. Even if a state is currently on or below the
URP, there may be sources contributing to visibility impairment for
which it would be reasonable to apply additional control measures in
light of the four factors. Although it may conversely be the case that
no such sources or control measures exist in a particular state with
respect to a particular Class I area and implementation period, this
should be determined based on a four-factor analysis for a reasonable
set of in-state sources that are contributing the most to the
visibility impairment that is still occurring at the Class I area. It
would bypass the four statutory factors and undermine the fundamental
structure and purpose of the reasonable progress analysis to treat the
URP as a safe harbor, or as a rigid requirement.\95\
---------------------------------------------------------------------------
\95\ 82 FR at 3099-3100.
---------------------------------------------------------------------------
The EPA reiterated this concept in the 2019 Guidance \96\ and in
the 2021 Clarifications Memo.\97\ Treating the URP as safe harbor is
inconsistent with statutory requirements and undermines the core
structure of a proper regional haze analysis.
---------------------------------------------------------------------------
\96\ 2019 Guidance at 50.
\97\ 2021 Clarifications Memo at 15-16.
---------------------------------------------------------------------------
Notably, the CAA and RHR do not include the URP among the four
statutory factors states must consider in developing their long-term
strategies. North Dakota relied on this consideration to reject
controls that its four-factor analysis did not show to be unreasonable.
Thus, North Dakota's conclusion that no new controls are necessary
(whether in whole or in part) because the State's Class I areas are
below the adjusted URP is inconsistent with the plain text of the CAA
and RHR.
b. Failure To Consider the Four Factors at Coal Creek and Unreasonable
Rejection of Controls at Coal Creek and Leland Olds
Coal Creek is a two-unit mine-mouth power plant located in McLean
County, North Dakota with a capacity to produce approximately 1,200
gross MW per hour of electricity. For the second implementation period,
North Dakota did not perform a separate four-factor analysis for
NOX controls at Coal Creek, pointing to its first planning
period NOX BART determination for Coal Creek to satisfy
reasonable progress for NOX.\98\ The 2017 RHR Revisions
clarified that, as specified in CAA section 169A(g)(1), reasonable
progress must be determined by applying the four statutory factors
(costs of compliance, time necessary for compliance, energy and nonair
quality environmental impacts of compliance, and remaining useful life
of the source): ``The CAA requires that each SIP revision contain long-
term strategies for making reasonable progress, and that in determining
reasonable progress states must consider the four statutory factors.''
\99\ Here, North Dakota used a five-factor BART analysis performed for
the first planning period in an attempt to satisfy the requirement to
consider the four statutory factors under reasonable progress in the
second planning period. Though there is some overlap between the four
factors considered under reasonable progress and the five factors
considered under BART,\100\ North Dakota's analysis failed to consider
one of the four factors under reasonable progress: time necessary for
compliance. North Dakota failed to satisfy a core statutory requirement
by not considering each of the four statutory factors in its reasonable
progress analysis focused on NOX for Coal Creek.
---------------------------------------------------------------------------
\98\ North Dakota's 2022 SIP submission, 103, 144.
\99\ 82 FR at 3099; see also CAA 169A(b)(2)(B), (g)(1).
\100\ CAA 169A(g)(1)-(2); 40 CFR 51.308(e)(1)(ii)(A),
51.308(f)(2)(i). Under CAA 169A(g)(2), the five BART factors are
costs of compliance, the energy and nonair quality environmental
impacts of compliance, any existing pollution control technology in
use at the source, the remaining useful life of the source, and the
degree of improvement in visibility which may reasonably be
anticipated to result from the use of such technology.
---------------------------------------------------------------------------
Further, as we explained in the 2021 Clarifications Memo, a state
that is relying on a source's existing effective controls to avoid
performing a four-factor analysis should explain why an analysis
``would not result in new controls and would, therefore, be a futile
exercise.'' \101\ Here, however, in its BART five-factor analysis for
Coal Creek Units 1 and 2 (which the EPA is not acting on in this
proposed rulemaking), North Dakota evaluated more stringent control
technologies (SNCR and SCR) beyond what North Dakota selected for BART.
It stated that the average cost-effectiveness of SNCR at $3,300/ton
appeared reasonable, but ultimately concluded that the incremental
costs were high enough to warrant selection of a less stringent cost-
effective technology.\102\ Thus, it is clear that additional, more
stringent NOX controls for Coal Creek exist, and should be
evaluated under the four statutory factors for the purpose of
determining the measures necessary to make reasonable progress for the
second implementation period.
---------------------------------------------------------------------------
\101\ 2021 Clarifications Memo at 5; see also 2019 Guidance at
22 (explaining that the reason underlying this flexibility is the
low likelihood of a significant technological advancement that could
provide further reasonable emission reductions).
\102\ North Dakota's 2022 SIP submission, appendix F.1-5-F.1-8,
F.1-14-F.1-15.
---------------------------------------------------------------------------
We also find that North Dakota unreasonably rejected emission
reduction measures at Coal Creek and Leland Olds. In its four-factor
analysis of Coal Creek Units 1 and 2 for reasonable progress for
SO2, North Dakota evaluated two different controls: a new
wetstack and a natural gas reheat
[[Page 56710]]
system. North Dakota's cost effectiveness evaluation of the new
wetstack resulted in an estimated cost of $2,890/ton of SO2
removed, while evaluation of the natural gas reheat system resulted in
an estimated cost of $2,460/ton of SO2 removed.\103\ In its
four-factor analysis of Leland Olds Unit 2 (which currently operates
SNCR and separated overfire air for NOX control as a result
of the State's BART determination \104\), North Dakota's cost
effectiveness evaluation of optimized SNCR resulted in an estimated
cost of $3,582/ton of NOX removed.\105\ Each of these
evaluated controls, both at Coal Creek and Leland Olds, are consistent
with what the EPA has previously found to be cost-effective in prior
regional haze rulemakings,\106\ and are otherwise reasonable when
considering the other three statutory factors.\107\ Indeed, North
Dakota did not determine the costs to be unreasonable.\108\
Nonetheless, North Dakota rejected these controls.
---------------------------------------------------------------------------
\103\ Id., appendix A.4-4.
\104\ North Dakota's 2022 SIP submission, appendix A.3-2-A.3-3;
77 FR 20894, 20897 (April 6, 2012) (approving the State's
NOX BART determination).
\105\ Id., appendix A.3-8.
\106\ 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), 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, 11033-34 (Feb. 24, 2012) (proposed), finalized at 78 FR
10546 (Feb. 14, 2013) (Alaska); and 79 FR 5032, 5039 (Jan. 30, 2014)
(Wyoming) (final rule). The cited costs have not been adjusted for
inflation.
\107\ In its consideration of the three non-cost statutory
factors, North Dakota did not identify any barriers that would
render these controls unreasonable. North Dakota's 2022 SIP
submission, appendix A.3-8-A.3-9 (Leland Olds), appendix A.4.4-A.4.5
(Coal Creek).
\108\ North Dakota's 2022 SIP submission, 103-04, appendix A.3-
8, A.4-4.
---------------------------------------------------------------------------
North Dakota did not explain why it declined to require a new wet
stack or natural gas reheat system at Coal Creek Units 1 and 2. Neither
the four-factor analysis in appendix A.4 nor the narrative discussion
in section 5.2.4 of North Dakota's 2022 SIP submission provide any
insight into the State's reasoning.\109\ Therefore, we cannot conclude
that North Dakota's rejection of these controls was justified under the
CAA and RHR.
---------------------------------------------------------------------------
\109\ While North Dakota stated that future operations and
SO2 emissions at Coal Creek are expected to remain
consistent with current conditions, the State did not identify these
future conditions as a reason for its rejection of the controls
evaluated through four-factor analysis. Id. at 104.
---------------------------------------------------------------------------
As for Leland Olds Unit 2, North Dakota offered the following
reasoning for its determination not to require optimized SNCR or other
NOX controls for the second implementation period: ``[F]our-
factor analysis confirmed that these [existing] BART controls operate
effectively, and the Department has no reason to believe effective
operation of the BART controls will change in the future. Therefore, no
additional measures were selected for the modeling evaluation and the
Department does not believe additional controls are warranted during
this planning period.'' \110\ The presence of BART controls, however,
does not exempt sources from installing additional reasonable controls
that are shown to be necessary, through four-factor analysis, to make
reasonable progress during the second planning period.\111\ We
explained that principle in the 2021 Clarifications Memo: ``A state
relying on an `effective control' to avoid performing a four-factor
analysis for a source should demonstrate why, for that source
specifically, a four-factor analysis would not result in new controls
and would, therefore, be a futile exercise.'' \112\ Here, North Dakota
conducted a four-factor analysis of NOX controls at Leland
Olds Unit 2, which identified optimized SNCR as a cost-effective and
otherwise reasonable new control. But North Dakota then concluded,
without providing any justification grounded in the CAA or RHR, that
because the source still operates and will continue to operate BART
controls, any additional controls are not warranted. Here, North
Dakota's analysis identified a cost-effective potential NOX
control, but the State did not reasonably explain why it declined to
require that control because, as described in the preceding paragraphs,
it improperly relied on the presence of BART controls and did not
properly consider the four statutory factors.
---------------------------------------------------------------------------
\110\ Id. at 103.
\111\ 40 CFR 51.308(e)(5) states that ``[a]fter a State has met
the requirements for BART or implemented an emissions trading
program or other alternative measure that achieves more reasonable
progress than the installation and operation of BART, BART-eligible
sources will be subject to the requirements of paragraphs (d) and
(f) of this section.''
\112\ 2021 Clarifications Memo at 5.
---------------------------------------------------------------------------
2. Other Long-Term Strategy Requirements Under 40 CFR 51.308(f)(2)(ii)-
(iv)
States must meet the additional requirements specified in 40 CFR
51.308(f)(2)(ii)-(iv) when developing their long-term strategies. 40
CFR 51.308(f)(2)(ii) requires states to consult with other states that
have emissions that are reasonably anticipated to contribute to
visibility impairment in Class I areas to develop coordinated emission
management strategies. North Dakota engaged with other states
throughout the development of its 2022 SIP submission by participating
in WRAP regional haze workgroup meetings. Additionally, North Dakota
directly communicated with other states about the SIP submission,
including South Dakota, Montana, and Minnesota.\113\
---------------------------------------------------------------------------
\113\ Id. at 33-34, appendix E.2.
---------------------------------------------------------------------------
40 CFR 51.308(f)(2)(iii) requires states to document the technical
basis, including modeling, monitoring, costs, engineering, and
emissions information, on which the state is relying to determine the
emission reduction measures that are necessary to make reasonable
progress in each mandatory Class I area it impacts. Section 4.1 of
North Dakota's 2022 SIP submission describes the emissions inventories
and projections the State used in its analysis.
40 CFR 51.308(f)(2)(iv) specifies five additional factors states
must consider in developing their long-term strategies. The five
additional factors are: emission reductions due to ongoing air
pollution control programs, including measures to address reasonably
attributable visibility impairment; measures to mitigate the impacts of
construction activities; source retirement and replacement schedules;
basic smoke management practices for prescribed fire used for
agricultural and wildland vegetation management purposes and smoke
management programs; and the anticipated net effect on visibility due
to projected changes in point, area, and mobile source emissions over
the period addressed by the long-term strategy. North Dakota described
each of the five additional factors in section 5.3 of its 2022 SIP
submission.
Regardless, as explained in the preceding sections, due to flaws
and omissions in its four-factor analyses and the resulting control
determinations, the EPA finds that North Dakota failed to submit to the
EPA a long-term strategy that includes ``the enforceable emissions
limitations, compliance schedules, and other measures that are
necessary to make reasonable progress'' as required by 40 CFR
51.308(f)(2).\114\ Consequently,
[[Page 56711]]
we find that North Dakota's 2022 SIP Submission does not satisfy the
long-term strategy requirements of 40 CFR 51.308(f)(2). Therefore, the
EPA proposes to disapprove all elements of North Dakota's 2022 SIP
submission as it relates to 51.308(f)(2)'s long-term strategy
requirements.
---------------------------------------------------------------------------
\114\ See also CAA 169A(b)(2), 169A(b)(2)(B) (requiring regional
haze SIPs to ``contain such emission limits, schedules of compliance
and other measures as may be necessary to make reasonable progress
toward meeting the national goal, . . . including . . . a long-term
. . . strategy for making reasonable progress[.]'').
---------------------------------------------------------------------------
C. Reasonable Progress Goals
The EPA proposes to find that North Dakota did not meet the
reasonable progress goal requirements under 40 CFR 51.308(f)(3).
Section 51.308(f)(3)(i) requires a state in which a Class I area is
located to establish RPGs--one each for the most impaired and clearest
days--reflecting the visibility conditions that will be achieved at the
end of the implementation period as a result of the emission
limitations, compliance schedules and other measures required under
paragraph (f)(2) in states' long-term strategies, as well as
implementation of other CAA requirements.
After establishing its long-term strategy, North Dakota developed
reasonable progress goals for each Class I area for the 20% most
impaired days and 20% clearest days based on the results of 2028 WRAP
modeling.\115\ The reasonable progress goals are based on North
Dakota's long-term strategy, the long-term strategy of other states
that may affect Class I areas in North Dakota, and other CAA
requirements.
---------------------------------------------------------------------------
\115\ North Dakota's 2022 SIP Submission, section 6.
---------------------------------------------------------------------------
Per 40 CFR 51.308(f)(3)(iv), the EPA must evaluate the
demonstrations the State developed pursuant to 40 CFR 51.308(f)(2) to
determine whether the State's reasonable progress goals for visibility
improvement provide for reasonable progress towards natural visibility
conditions. As previously explained in section IV.B., we are proposing
to disapprove North Dakota's long-term strategy for failing to meet the
requirements of 40 CFR 51.308(f)(2).\173\ Therefore, we also propose to
disapprove North Dakota's reasonable progress goals under 40 CFR
51.308(f)(3) because compliance with that requirement is dependent on
compliance with 40 CFR 51.308(f)(2).
D. Reasonably Attributable Visibility Impairment (RAVI)
The RHR contains a requirement at Sec. 51.308(f)(4) related to any
additional monitoring that may be needed to address visibility
impairment in Class I areas from a single source or a small group of
sources. This is called ``reasonably attributable visibility
impairment,'' \116\ also known as RAVI. Under this provision, if the
EPA or the FLM of an affected Class I area has advised a state that
additional monitoring is needed to assess RAVI, the state must include
in its SIP revision for the second implementation period an appropriate
strategy for evaluating such impairment. The EPA has not advised North
Dakota to that effect, and the FLMs for the Class I areas that North
Dakota contributes to have not identified any RAVI from North Dakota
sources.\117\ For this reason, the EPA proposes to approve the portions
of North Dakota's 2022 SIP submission relating to 40 CFR 51.308(f)(4).
---------------------------------------------------------------------------
\116\ The EPA's visibility protection regulations define
``reasonably attributable visibility impairment'' as ``visibility
impairment that is caused by the emission of air pollutants from
one, or a small number of sources.'' 40 CFR 51.301.
\117\ North Dakota's 2022 SIP submission, 139.
---------------------------------------------------------------------------
E. Monitoring Strategy and Other Implementation Plan Requirements
Section 51.308(f)(6) specifies that each comprehensive revision of
a state's regional haze SIP must contain or provide for certain
elements, including monitoring strategies, emissions inventories, and
any reporting, recordkeeping and other measures needed to assess and
report on visibility. A main requirement of this section is for states
with Class I areas to submit monitoring strategies for measuring,
characterizing, and reporting on visibility impairment. Compliance with
this requirement may be met through participation in the Interagency
Monitoring of Protected Visual Environments (IMPROVE) network. North
Dakota participates in the IMPROVE network.
Section 51.308(f)(6)(i) requires SIPs to provide for the
establishment of any additional monitoring sites or equipment needed to
assess whether reasonable progress goals to address regional haze for
all mandatory Class I Federal areas within the state are being
achieved. As noted in the 2017 RHR Revisions, ``neither the EPA nor any
state has concluded that the IMPROVE network is not sufficient in this
way.'' \118\ Regional haze data for Theodore Roosevelt National Park
and Lostwood Wilderness Area are collected by IMPROVE monitors that are
operated and maintained by the NPS and the USFWS, respectively. The EPA
is not aware of information suggesting that those IMPROVE monitors are
no longer sufficient to assess the status of reasonable progress goals
at those Class I areas. Therefore, the EPA finds that North Dakota has
satisfied Sec. 51.308(f)(6)(i).
---------------------------------------------------------------------------
\118\ 82 FR at 3085.
---------------------------------------------------------------------------
Section 51.308(f)(6)(ii) requires SIPs to provide for procedures by
which monitoring data and other information are used in determining the
contribution of emissions from within the state to regional haze
visibility impairment at mandatory Class I Federal areas both within
and outside the state. For the second implementation period, WRAP
performed technical analyses to help assess source and state-level
contributions to visibility impairment.\119\ North Dakota relied on
these source-apportionment analyses to determine the contribution of
emissions from within the State to visibility impairment in Class I
areas outside the State.\120\ As explained in section IV.B.1.a. of this
document, the record does not support North Dakota's determination that
its sources are not reasonably anticipated to impact out-of-state Class
I areas; instead, the technical data the State relied on, including
WRAP data, indicate the opposite. Regardless of the State's
interpretation of that data, because the 2022 SIP submission relies on
WRAP technical data and provides for procedures to determine in-state
contributions to visibility impairment, we find that North Dakota has
satisfied Sec. 51.308(f)(6)(ii) by relying on WRAP's source-
apportionment analyses.
---------------------------------------------------------------------------
\119\ WRAP Technical Support System (TSS); CSU and the
Cooperative Institute for Research in the Atmosphere (CIRA), 09 Oct
2023, https://views.cira.colostate.edu/tssv2.
\120\ North Dakota's 2022 SIP submission, 39.
---------------------------------------------------------------------------
Section 51.308(f)(6)(iii) does not apply to North Dakota, as it has
Class I areas. Section 51.308(f)(6)(iv) requires the SIP to provide for
the reporting of all visibility monitoring data to the Administrator at
least annually for each Class I area in the state. North Dakota's
monitoring strategy relies upon the continued availability of the
IMPROVE network, whose monitors are operated and maintained by the NPS
and the USFWS. The IMPROVE Steering committee and Data Analysis and
Reporting subcommittee develop policies to generate and distribute
IMPROVE data, metadata, and data products. The data is made available
on IMPROVE, FLM, and the EPA Air Quality System databases. North Dakota
supports the continued operation of the IMPROVE network through state
funding mechanisms. We find that North Dakota has satisfied Sec.
51.308(f)(6)(iv).
Section 51.308(f)(6)(v) requires SIPs to provide for a statewide
inventory of emissions of pollutants that are
[[Page 56712]]
reasonably anticipated to cause or contribute to visibility impairment,
including emissions for the most recent year for which data are
available. North Dakota provides for emissions inventories and
estimates of future projected emissions by participating in WRAP and by
complying with the EPA's Air Emissions Reporting Rule (AERR). In 40 CFR
part 51, subpart A, the AERR requires states to submit updated
emissions inventories for criteria pollutants to the EPA's Emission
Inventory System (EIS) annually or triennially depending on the source
type. The EPA uses the inventory data from the EIS to develop the NEI,
which is a comprehensive estimate of air emissions of criteria
pollutants, criteria precursors, and hazardous air pollutants from air
emissions sources. The EPA releases an NEI every three years.
Section 4 of North Dakota's 2022 SIP submission includes tables of
NEI data. The source categories of the emissions inventories include
point sources, area and non-point sources, non-road mobile sources, on-
road mobile sources, natural sources, and international anthropogenic
emissions. The inventories account for emissions of SO2,
NOX, PM10, PM2.5, VOC, and
NH3 in 2002 (one of the regional haze program baseline
years), 2011, 2014, and 2017.
Section 51.308(f)(6)(v) also requires states to include estimates
of future projected emissions. North Dakota used three different
modeling scenarios in WRAP modeling, which produced a range of future
projected emissions for 2028.\121\
---------------------------------------------------------------------------
\121\ North Dakota's 2022 SIP submission, 66-68, 140.
---------------------------------------------------------------------------
The EPA finds that North Dakota has met the requirements of 40 CFR
51.308(f)(6)(v) through its ongoing compliance with the AERR, its
compilation of a statewide emissions inventory based on NEI data, its
use of WRAP modeling to project future emissions, and its commitment to
update its inventory periodically.\122\
---------------------------------------------------------------------------
\122\ Id. at 140.
---------------------------------------------------------------------------
Finally, Sec. 51.308(f)(6)(vi) requires the SIP to provide for any
other elements, including reporting, recordkeeping, and other measures,
that are necessary for states to assess and report on visibility. North
Dakota assesses and reports on visibility through participation in the
IMPROVE network. The EPA finds that North Dakota has satisfied the
requirements of 40 CFR 51.308(f)(6)(vi) and that no further elements
are necessary at this time for North Dakota to assess and report on
visibility.
In sum, for all the reasons discussed in this section IV.E., the
EPA is proposing to approve North Dakota's 2022 submission as meeting
the requirements of 40 CFR 51.308(f)(6).
F. Requirements for Periodic Reports Describing Progress Towards the
Reasonable Progress Goals
40 CFR 51.308(f)(5) requires that periodic comprehensive revisions
of states' regional haze plans also address the progress report
requirements of 40 CFR 51.308(g)(1) through (5). The purpose of these
requirements is to evaluate progress towards the applicable RPGs for
each Class I area within the state and each Class I area outside the
state that may be affected by emissions from within that state.
Sections 51.308(g)(1) and (2) apply to all states and require a
description of the status of implementation of all measures included in
a state's first implementation period regional haze plan and a summary
of the emission reductions achieved through implementation of those
measures. Section 51.308(g)(3) applies only to states with Class I
areas within their borders and requires such states to assess current
visibility conditions, changes in visibility relative to baseline
(2000-2004) visibility conditions, and changes in visibility conditions
relative to the period addressed in the first implementation period
progress report. Section 51.308(g)(4) applies to all states and
requires an analysis tracking changes in emissions of pollutants
contributing to visibility impairment from all sources and sectors
since the period addressed by the first implementation period progress
report. This provision further specifies the year or years through
which the analysis must extend depending on the type of source and the
platform through which its emission information is reported. Finally,
Sec. 51.308(g)(5), which also applies to all states, requires an
assessment of any significant changes in anthropogenic emissions within
or outside the state that have occurred since the period addressed by
the first implementation period progress report, including whether such
changes were anticipated and whether they have limited or impeded
expected progress towards reducing emissions and improving visibility.
Section 9 of North Dakota's 2022 SIP submission describes the
status of the long-term strategy measures from the first implementation
period. The State's regional haze SIP submission for the first
implementation period relied primarily on SO2 and
NOX reductions from existing coal-fired EGUs. The
requirements for those reductions were based on both the BART
requirements in 40 CFR 51.308(e) and the reasonable progress
requirements in 40 CFR 51.308(d). Additional control measures that
North Dakota relied on to meet the requirements under the first
implementation period are described in section 5.3.1 of North Dakota's
2022 SIP submission. North Dakota's BART limits from the first planning
period SIP submission have been incorporated into the State's permits
for the affected sources, except for Coal Creek Station NOX
BART.\123\ All EGUs with BART controls from the first planning period
have associated limits at 40 CFR 52.1820(d).
---------------------------------------------------------------------------
\123\ Coal Creek Station Unit 1 and 2 NOX BART limits
are addressed in section 8 and appendix F of North Dakota's 2022 SIP
submission.
---------------------------------------------------------------------------
North Dakota states that since the baseline period of 2000-2004,
there have been significant reductions of most visibility impairing
pollutants in North Dakota that can be attributed to the point and
mobile source categories.\124\ The State attributes the implementation
of new controls at coal-fired EGUs and new federal requirements for on-
and off-road engines as the main reasons for the reductions. Sections
4.1.1, 4.1.2, and 4.1.5 contain emission inventories for WRAP's 2002
Plan 02d and the 2011 and 2017 National Emissions Inventory (NEI). As
evidence of overall emission reductions at the EGUs, North Dakota
points to Table 20 in section 4.2.1, which shows the emissions of
visibility impairing pollutants from North Dakota's coal-fired EGUs for
each inventory year. SO2 and NOX reductions from
individual coal-fired EGUs are listed in sections 4.2.1.1.1 and
4.2.1.1.2. The EPA finds that North Dakota has met the requirements of
40 CFR 51.308(g)(1) and (2) by describing the measures included in the
long-term strategy from the first implementation period, as well as the
status of their implementation and the emission reductions achieved
through such implementation.
---------------------------------------------------------------------------
\124\ North Dakota's 2022 SIP submission, 150.
---------------------------------------------------------------------------
Section 3 summarizes the visibility conditions and the trend of the
5-year averages through 2017 at Theodore Roosevelt National Park and
Lostwood Wilderness Area. Section 3.2.1 describes the 5-year baseline
(2000-2004) visibility conditions for the clearest and most impaired
days, while section 3.2.3 sets out the current 5-year rolling average
(2014-2018) for the clearest and most impaired days. Table 9 in section
3.2.4 identifies the progress to date for the clearest and most
impaired days, showing data from 2008-2012 as
[[Page 56713]]
representative of the first implementation period.
Section 4.1 summarizes emissions of NOX, SO2,
PM10, PM2.5, VOC, and NH3 from all
sources and activities, including from point, nonpoint, non-road
mobile, and on-road mobile sources, for 2002, 2011, 2014, 2017, current
representative, and projected future emissions. Comparing the 2002 and
2017 emissions inventories shows that emissions of SO2,
NOX, and NH3 decreased, while emissions of VOC,
PM2.5, and PM10 increased. Comparing the 2002 and
RepBase (current representative) emissions inventories shows that
emissions of SO2, NH3, PM2.5, and
PM10 decreased, while emissions of NOX and VOC
increased.\125\
---------------------------------------------------------------------------
\125\ Section 9.3.5 of North Dakota's 2022 SIP submission
considers the potential impact of oil and gas development on the
increase in anthropogenic emissions of NOX and VOC.
---------------------------------------------------------------------------
Section 9.3.5 assesses changes in anthropogenic emissions impeding
visibility progress. Regarding NOX, North Dakota concluded
that total anthropogenic NOX emissions have not changed
significantly in the RepBase (current representative) emissions
inventory compared to 2002.
In sum, because North Dakota's 2022 SIP submission addresses the
requirements of 40 CFR 51.308(g)(1) through (5), the EPA is proposing
to approve Section 9 of North Dakota's 2022 SIP submission as meeting
the requirements of 40 CFR 51.308(f)(5) and 40 CFR 51.308(g) for
periodic progress reports.
G. Requirements for Federal Land Manager Coordination
Section 169A(d) of the CAA requires states to consult with FLMs
before holding the public hearing on a proposed regional haze SIP, and
to include a summary of the FLMs' conclusions and recommendations in
the notice to the public. In addition, the 40 CFR 51.308(i)(2) FLM
consultation provision requires a state to provide FLMs with an
opportunity for consultation that is early enough in the state's policy
analyses of its emission reduction obligation so that information and
recommendations provided by the FLMs can meaningfully inform the
state's decisions on its long-term strategy. If the consultation has
taken place at least 120 days before a public hearing or public comment
period, the opportunity for consultation will be deemed early enough.
Regardless, the opportunity for consultation must be provided at least
sixty days before a public hearing or public comment period at the
state level. Section 51.308(i)(2) also lists two substantive topics on
which FLMs must be provided an opportunity to discuss with states:
assessment of visibility impairment in any Class I area and
recommendations on the development and implementation of strategies to
address visibility impairment. Section 51.308(i)(3) requires states, in
developing their implementation plans, to include a description of how
they addressed FLMs' comments.
North Dakota's 2022 SIP submission summarizes the State's
consultation and coordination with the FLMs. 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 its 2022 SIP
submission. 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 submission, North Dakota
provided it to FLMs for a review and consultation period from September
20, 2021, through November 19, 2021. 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.\126\ North Dakota responded to the FLM
comments and included the responses in appendix D of its 2022 SIP
submission.
---------------------------------------------------------------------------
\126\ The USFWS did not comment on North Dakota's 2022 SIP
submission.
---------------------------------------------------------------------------
Compliance with 40 CFR 51.308(i) is dependent on compliance with 40
CFR 51.308(f)(2)'s long-term strategy provisions and (f)(3)'s
reasonable progress goals provisions. Because the EPA is proposing to
disapprove North Dakota's long-term strategy under 51.308(f)(2) and the
reasonable progress goals under 51.308(f)(3), the EPA is also proposing
to disapprove the State's FLM consultation under 51.308(i). While North
Dakota did take administrative steps to provide the FLMs the
opportunity to review and provide feedback on the State's draft
regional haze plan, the EPA cannot approve that consultation because it
was based on a plan that does not meet the statutory and regulatory
requirements of the CAA and the RHR, as described in this notice of
proposed rulemaking. In addition, if the EPA finalizes our proposed
partial approval and partial disapproval of North Dakota's SIP
submission, the State (or the EPA in the potential case of a FIP) will
be required to again complete the FLM consultation requirements under
40 CFR 51.308(i). Therefore, the EPA proposes to disapprove the FLM
consultation component of North Dakota's SIP submission for failure to
meet the requirements of 40 CFR 51.308(i), as outlined in this section.
V. Proposed Action
The EPA is proposing approval of the portions of North Dakota's
2022 SIP submission relating to 40 CFR 51.308(f)(1): calculations of
baseline, current, and natural visibility conditions, progress to date,
and the uniform rate of progress; 40 CFR 51.308(f)(4): reasonably
attributable visibility impairment; 40 CFR 51.308(f)(5) and 40 CFR
51.308(g): progress report requirements; and 40 CFR 51.308(f)(6):
monitoring strategy and other implementation plan requirements. The EPA
is proposing disapproval of the remainder of North Dakota's 2022 SIP
submission, which addresses 40 CFR 51.308(f)(2): long-term strategy; 40
CFR 51.308 (f)(3): reasonable progress goals; and 40 CFR 51.308(i): FLM
consultation.
VI. Environmental Justice
The EPA conducted an environmental justice (EJ) screening analysis
around the location of the facilities associated with North Dakota's
2022 SIP submission to identify potential environmental stressors on
these 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 analyses using EJScreen, an
environmental justice mapping and screening tool that provides the EPA
with a nationally consistent dataset and approach for combining various
environmental and demographic indicators.\127\ The EPA prepared
EJScreen reports covering buffer areas of approximately six miles
around the ten facilities selected for four-factor analysis in North
Dakota's 2022 SIP submission. From those reports, no facilities showed
environmental justice indices greater than the 80th national
percentiles.\128\
[[Page 56714]]
The full, detailed EJScreen reports are provided in the docket for this
rulemaking.
---------------------------------------------------------------------------
\127\ The EJSCREEN tool is available at https://www.epa.gov/ejscreen.
\128\ This means that 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. The use of
an initial filter promotes consistency for the EPA's programs and
regions when interpreting screening results.
---------------------------------------------------------------------------
VII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, 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 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 submission; 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. Environmental Justice. 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: June 27, 2024.
KC Becker,
Regional Administrator, Region 8.
[FR Doc. 2024-14761 Filed 7-9-24; 8:45 am]
BILLING CODE 6560-50-P