Approval and Promulgation of Implementation Plans; North Dakota; Revisions to Air Pollution Control Rules; Regional Haze, 17101-17106 [2021-06399]
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Federal Register / Vol. 86, No. 61 / Thursday, April 1, 2021 / Proposed Rules
‘‘piggyback’’) costs of each operation.’’
Id. The resulting costs are called
‘‘directly modeled’’ costs. Id. Mail
processing costs are separately
calculated as part of the Cost and
Revenue Analysis (CRA) Report using
In-Office Cost System (IOCS) data for
the same activities at the product level,
or within the same cost pools. Id.
However, the ‘‘directly modeled’’ costs
can differ from those calculated as part
of the CRA Report for several reasons.2
As a result, the ‘‘CRA Adjustment
Factor’’ was developed in order to
‘‘calibrate the model and ‘true-up’ the
modeled costs to the costs reported in
the CRA Report,’’ using the following
equation: 3
MailProcUnitCosti = ModelUnitCosti *
CRAAdjustmentFactor +
FixedUnitCost
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The Postal Service notes that, under
the current methodology, ‘‘cost pools
that are directly modeled are treated as
proportional, cost pools that are
operationally determined to be
unrelated to workshare are treated as
fixed, and the remaining cost pools are
treated as partly proportional.’’ Petition,
Proposal Two at 3. It further notes that,
for the last group of cost pools, ‘‘unit
costs are divided into proportional and
fixed components based on costs in the
directly assigned cost pools.’’ Id.
The Postal Service indicates that, in
the years since the methodology
described above was first established,
‘‘the structure of cost pools has been
configured to better align with
operational practice, enhancing the
ability to conduct operational analysis
of cost pools.’’ Id. The Postal Service
further indicates that, ‘‘[w]ith these
developments in data availability, the
current methodology for calibrating the
[cost avoidance] models to CRA costs is
in need of refinement.’’ Id.
Proposal. With Proposal Two, the
Postal Service seeks to ‘‘revise cost pool
classifications for the determination of
the proportional and fixed adjustment to
modeled costs’’ and ‘‘update the cost
pool classification vocabulary to better
reflect how the cost pools are treated in
the calibration methodology.’’ Id. at 4.
The Postal Service proposes three new
cost pool classifications: ‘‘Modeled/
Proportional Pools,’’ ‘‘Unrelated to
2 Id. The Postal Service notes that CRA costs are
not only subject to sampling variation, but the data
used to calculate costs for the CRA Report capture
additionally incurred costs from activities that
cannot be directly modeled. Id.
3 See id. at 1–2. The CRA Adjustment Factor was
initially developed in Docket No. R2006–1. Id. at
2–3; see generally Docket No. R2006–1, Opinion
and Recommended Decision, Volume 1, February
26, 2007.
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Presort’’ and ‘‘Correlated with Presort.’’
Id.
‘‘Modeled/Proportional Pools’’
include ‘‘cost pools where the mailflow
model directly characterizes the flow of
mail through the pools and measures
the cost of the component activities.’’ Id.
at 5. ‘‘Unrelated to Presort’’ include cost
pools where the ‘‘activities performed
are incurred because of piece
characteristics unrelated to presort and
thus the costs are invariant to presort,
and pools where the costs have spurious
correlation with presort.’’ Id. at 6.
‘‘Correlated with Presort’’ include cost
pools that are generally associated with
non-piece sorting allied labor and
support operations. Id. at 8. The Postal
Service notes that ‘‘Correlated with
Presort’’ cost pools may include costs
that are ‘‘partly avoidable with a greater
degree of presorting, but not directly
proportional to modeled piece costs.’’
Id.
Finally, the Postal Service notes that
the model would be modified in one
additional way. The Postal Service
indicates that costs associated with the
distribution of mailpieces to P.O. Boxes
will no longer be included as part of the
model. Id. at 10. It describes subsequent
‘‘costing enhancements’’ that have
eliminated the need to model these
costs, which it states are ‘‘explicitly
measured’’ as part of the ACR. Id. at 10–
11.
Impact. Under the Postal Service’s
proposed methodology, avoided costs
and passthroughs associated with FirstClass Mail letters would be affected.
Those effects are presented in Table 3 of
the proposal. See id. at 14.
III. Notice and Comment
The Commission establishes Docket
No. RM2021–4 for consideration of
matters raised by the Petition. More
information on the Petition may be
accessed via the Commission’s website
at https://www.prc.gov. Interested
persons may submit comments on the
Petition and Proposal Two no later than
May 14, 2021. Pursuant to 39 U.S.C.
505, Katalin K. Clendenin is designated
as an officer of the Commission (Public
Representative) to represent the
interests of the general public in this
proceeding.
IV. Ordering Paragraphs
It is ordered:
1. The Commission establishes Docket
No. RM2021–4 for consideration of the
matters raised by the Petition of the
United States Postal Service for the
Initiation of a Proceeding to Consider
Proposed Changes in Analytical
Principles (Proposal Two), filed March
24, 2021.
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2. Comments by interested persons in
this proceeding are due no later than
May 14, 2021.
3. Pursuant to 39 U.S.C. 505, the
Commission appoints Katalin K.
Clendenin to serve as an officer of the
Commission (Public Representative) to
represent the interests of the general
public in this docket.
4. The Secretary shall arrange for
publication of this order in the Federal
Register.
By the Commission.
Erica A. Barker,
Secretary.
[FR Doc. 2021–06633 Filed 3–31–21; 8:45 am]
BILLING CODE 7710–FW–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2021–0002; FRL–10021–
88–Region 8]
Approval and Promulgation of
Implementation Plans; North Dakota;
Revisions to Air Pollution Control
Rules; Regional Haze
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
revision to the North Dakota State
Implementation Plan (SIP) submitted by
the State of North Dakota on November
11, 2016 and supplemented on March
15, 2021, that addresses amendments to
the regional haze provisions of the
North Dakota Administrative Code
(NDAC). These revisions were
submitted to remove certain regional
haze requirements related to Best
Available Retrofit Technology (BART)
in the first planning period. EPA is also
proposing to approve a revision to the
North Dakota SIP submitted on August
3, 2020, that addresses additional
amendments to the regional haze
provisions of the NDAC. The 2020 SIP
revision was submitted to update the
incorporation by reference date for
regional haze definitions, add emission
reduction requirements to make
reasonable progress during the second
and subsequent regional haze planning
periods, and revise the regional haze
monitoring, recordkeeping, and
reporting requirements to be applicable
under the second and subsequent
planning period. EPA is taking this
action pursuant to section 110 and Part
C of the Clean Air Act (CAA).
SUMMARY:
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Federal Register / Vol. 86, No. 61 / Thursday, April 1, 2021 / Proposed Rules
Written comments must be
received on or before May 3, 2021.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2021–0002, to the Federal
Rulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from
www.regulations.gov. EPA may publish
any comment received to its public
docket. Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.,
on the web, cloud, or other file sharing
system). For additional submission
methods, the full EPA public comment
policy, information about CBI or
multimedia submissions, and general
guidance on making effective
comments, please visit https://
www2.epa.gov/dockets/commentingepa-dockets.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
electronically in www.regulations.gov.
To reduce the risk of COVID–19
transmission, for this action we do not
plan to offer hard copy review of the
docket. Please email or call the person
listed in the FOR FURTHER INFORMATION
CONTACT section if you need to make
alternative arrangements for access to
the docket.
FOR FURTHER INFORMATION CONTACT:
Jaslyn Dobrahner, Air and Radiation
Division, EPA, Region 8, Mailcode
8ARD–IO, 1595 Wynkoop Street,
Denver, Colorado 80202–1129, (303)
312–6252, dobrahner.jaslyn@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
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DATES:
I. What action is EPA proposing?
II. Background
A. Requirements of the Clean Air Act and
EPA’s Regional Haze Rule
B. Best Available Retrofit Technology
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C. Long-Term Strategy and Reasonable
Progress Requirements
D. Consultation With Federal Land
Managers
E. Monitoring, Recordkeeping, and
Reporting
F. Regulatory and Legal History for North
Dakota Regional Haze
III. EPA’s Evaluation of North Dakota’s
Regional Haze SIP Revisions
A. November 11, 2016 Submittal and
March 15, 2021 Supplement
B. August 3, 2020 Submittal
C. Consultation With Federal Land
Managers
IV. Clean Air Act Section 110(l)
V. Summary of EPA’s Proposed Action
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews
I. What action is EPA proposing?
EPA is proposing to approve North
Dakota’s regional haze SIP revision
submitted by the State of North Dakota
on November 11, 2016, and
supplemented on March 15, 2021, as
discussed in sections III and V of this
proposed rulemaking. Specifically, we
are proposing to approve North Dakota’s
removal of NDAC section 33–15–25–
02.1 (requirement pertaining to the
submittal of a regional haze BART
analysis) and section 33–15–25–03
(requirement that references the federal
guidelines for BART determinations
under the regional haze rule) from the
regional haze provisions provided in
NDAC section 33–15–25.1
EPA is also proposing to approve a
portion of North Dakota’s August 3,
2020, SIP revision that addresses NDAC
section 33.1–15–25 of the Air Pollution
Control Rules for regional haze.2
Specifically, we are proposing to
approve the following revisions to
NDAC: Section 33.1–15–25–01 which
updates the incorporation by reference
date for regional haze definitions;
section 33.1–15–25–03 which adds
emission reduction requirements to
make reasonable progress for the second
and subsequent planning periods; and
section 33.1–15–25–04 which revises
the regional haze monitoring,
recordkeeping, and reporting
requirements to be applicable to sources
1 On August 6, 2018, North Dakota submitted a
SIP to EPA that recodified the Air Pollution Control
Rules, including those that address regional haze,
from NDAC section 33–15 to NDAC section 33.1–
15. EPA approved the recodification on February 5,
2019 (84 FR 1610). The recodification made the
regional haze section of NDAC to be changed from
section 33–15–25 to section 33.1–15–25. The 2018
SIP reflected the deletions of section 33.1–15–25–
02.1 and section 33.1–15.25–03 (formerly referred
to as section 33–15–25–02.1 and section 33–15–25–
03).
2 EPA will act on the remaining portions of the
ND August 3, 2020, SIP in a future rulemaking.
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under the second and subsequent
planning periods.
II. Background
A. Requirements of the Clean Air Act
and EPA’s Regional Haze Rule
In section 169A of the CAA, Congress
created a program for protecting
visibility in national parks and
wilderness areas. This section of the
CAA establishes ‘‘as a national goal the
prevention of any future, and the
remedying of any existing, impairment
of visibility in mandatory Class I
Federal areas which impairment results
from manmade air pollution.’’ 3
EPA promulgated a rule to address
regional haze on July 1, 1999.4 The
Regional Haze Rule revised the existing
visibility regulations 5 to integrate
provisions addressing regional haze and
established a comprehensive visibility
protection program for Class I areas. The
requirements for regional haze, found at
40 CFR 51.308 and 40 CFR 51.309, are
included in EPA’s visibility protection
regulations at 40 CFR 51.300 through 40
CFR 51.309.6 EPA revised the Regional
Haze Rule on January 10, 2017.7
The CAA requires each state to
develop a SIP to meet various air quality
requirements, including protection of
visibility by submitting periodic plans
demonstrating how they have and will
continue to make progress towards
achieving their visibility improvement
3 42 U.S.C. 7491(a). Areas designated as
mandatory Class I Federal areas consist of national
parks exceeding 6,000 acres, wilderness areas and
national memorial parks exceeding 5,000 acres, and
all international parks that were in existence on
August 7, 1977. 42 U.S.C. 7472(a). In accordance
with section 169A of the CAA, EPA, in consultation
with the Department of Interior, promulgated a list
of 156 areas where visibility is identified as an
important value. 44 FR 69122 (November 30, 1979).
The extent of a mandatory Class I area includes
subsequent changes in boundaries, such as park
expansions. 42 U.S.C. 7472(a). Although states and
tribes may designate as Class I additional areas
whose visibility they consider to be an important
value, the requirements of the visibility program set
forth in section 169A of the CAA apply only to
‘‘mandatory Class I Federal areas.’’ Each mandatory
Class I Federal area is the responsibility of a
‘‘Federal Land Manager.’’ 42 U.S.C. 7602(i). When
we use the term ‘‘Class I area’’ in this action, we
mean a ‘‘mandatory Class I Federal area.’’
4 64 FR 35714, 35714 (July 1, 1999) (codified at
40 CFR part 51, subpart P).
5 EPA had previously promulgated regulations to
address visibility impairment in Class I areas that
is ‘‘reasonably attributable’’ to a single source or
small group of sources, i.e., reasonably attributable
visibility impairment (RAVI). 45 FR 80084, 80084
(December 2, 1980).
6 EPA revised the Regional Haze Rule on January
10, 2017. 82 FR 3078 (January 10, 2017). Under the
revised Regional Haze Rule, the requirements 40
CFR 51.308(d) and (e) apply to first implementation
period SIP submissions and section 51.308(f)
applies to submissions for the second and
subsequent implementation periods. 82 FR 3087;
see also 81 FR 26942, 26952 (May 4, 2016).
7 82 FR 3078 (January 10, 2017).
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goals.8 Regional haze SIPs must assure
reasonable progress toward the national
goal of preventing future and remedying
existing manmade visibility impairment
in Class I areas. A state must submit its
SIP and SIP revisions to EPA for
approval.9 The first state plans were due
in 2007 and covered the 2008–2018
planning period. State plans covering
the second planning period, 2018–2028,
are due on July 31, 2021. Once
approved, a SIP is enforceable by EPA
and citizens under the CAA; that is, the
SIP is federally enforceable.
B. Best Available Retrofit Technology
Section 169A(b)(2) of the CAA
requires SIPs to contain such measures
as may be necessary to make reasonable
progress toward meeting the national
visibility goal. Section 169(b)(2)(A)
specifies that one such requirement is
for certain categories of existing major
stationary sources built between 1962
and 1977 to procure, install, and operate
BART as determined by the states
through their SIPs. Under the Regional
Haze Rule, states (or EPA, in the case of
a FIP) are directed to conduct BART
determinations for such ‘‘BARTeligible’’ sources—typically larger, often
uncontrolled, and older stationary
sources—that may reasonably be
anticipated to cause or contribute to any
visibility impairment in a Class I area.10
Rather than requiring source-specific
BART controls, states also have the
flexibility to adopt an emissions trading
program or other alternative program as
long as the alternative will achieve
greater reasonable progress toward
natural visibility conditions than
BART.11
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C. Long-Term Strategy and Reasonable
Progress Requirements
In addition to the BART requirements,
the CAA’s visibility protection
provisions also require that states’
regional haze SIPs contain a ‘‘long-term
(ten to fifteen years) strategy for making
reasonable progress toward meeting the
national goal. . . .’’ 12 The long-term
strategy must address regional haze
8 42 U.S.C. 7410(a), 7491, and 7492(a); CAA
sections 110(a), 169A, and 169B.
9 42 U.S.C. 7491(b)(2) and 7410.
10 40 CFR 51.308(e). EPA designed the Guidelines
for BART Determinations Under the Regional Haze
Rule (Guidelines) 40 CFR appendix Y to part 51 ‘‘to
help States and others (1) identify those sources
that must comply with the BART requirement, and
(2) determine the level of control technology that
represents BART for each source.’’ Guidelines,
section I.A. section II of the Guidelines describes
the four steps to identify BART sources, and section
III explains how to identify BART sources (i.e.,
sources that are ‘‘subject to BART’’).
11 40 CFR 51.308(e)(2). WildEarth Guardians v.
EPA, 770 F.3d 919, 934 (10th Cir. 2014).
12 42 U.S.C. 7491(b)(2)(B).
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visibility impairment for each
mandatory Class I area within the state
and for each mandatory Class I area
located outside the state that may be
affected by emissions from the state. It
must include the enforceable emission
limitations, compliance schedules, and
other measures necessary to achieve the
reasonable progress goals.13 The
reasonable progress goals, in turn, are
calculated for each Class I area based on
the control measures states have
selected by analyzing the four statutory
‘‘reasonable progress’’ factors, which are
‘‘the costs of compliance, the time
necessary for compliance, the energy
and non-air quality environmental
impacts of compliance, and the
remaining useful life of any existing
source subject to such requirement.’’ 14
Thus, the four reasonable progress
factors are considered by a state in
setting the reasonable progress goal by
virtue of the state having first
considered them, and certain other
factors listed in § 51.308(d)(3) of the
Regional Haze Rule, when deciding
what controls are to be included in the
long-term strategy. Then, the numerical
levels of the reasonable progress goals
are the predicted visibility outcome of
implementing the long-term strategy in
addition to ongoing pollution control
programs stemming from other CAA
requirements.
Unlike BART determinations, which
are required only for the first regional
haze planning period SIPs,15 states are
required to submit updates to their longterm strategies, including updated
reasonable progress analyses and
reasonable progress goals, in the form of
SIP revisions on July 31, 2021, and at
specific intervals thereafter.16 In
addition, each state must periodically
submit a report to EPA at five-year
intervals beginning five years after the
submission of the initial regional haze
SIP, evaluating the state’s progress
towards meeting the reasonable progress
goals for each Class I area within the
state.17
D. Consultation With Federal Land
Managers
The Regional Haze Rule requires that
a state consult with Federal Land
13 40
CFR 51.308(d)(3).
U.S.C. 7491(g)(1); 40 CFR 51.308(d)(1)(i).
15 Under the Regional Haze Rule, SIPs are due for
each regional haze planning period, or
implementation period. The terms ‘‘planning
period’’ and ‘‘implementation period’’ are used
interchangeably in this document.
16 40 CFR 51.308(f). The deadline for the 2018 SIP
revision was moved to 2021. 82 FR 3078 (January
10, 2017); see also 40 CFR 51.308(f). Following the
2021 SIP revision deadline, the next SIP revision is
due in 2028. 40 CFR 51.308(f).
17 Id. § 51.308(g); § 51.309(d)(10).
14 42
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17103
Managers (FLMs) before adopting and
submitting a required SIP or SIP
revision. Further, when considering a
SIP revision, a state must include in its
proposal a description of how it
addressed any comments provided by
the FLMs.18
E. Monitoring, Recordkeeping, and
Reporting
The CAA requires that SIPs, including
regional haze SIPs, contain elements
sufficient to ensure emission limits are
practically enforceable. CAA section
110(a)(2) states that the monitoring,
recordkeeping, and reporting provisions
of states’ SIPs must: ‘‘(A) include
enforceable emissions limitations and
other control measures, means, or
techniques (including economic
incentives such as fees, marketable
permits, and auctions of emissions
rights), as well as schedules and
timetables for compliance, as may be
necessary or appropriate to meet the
applicable requirements of this chapter;
. . . (C) include a program to provide
for the enforcement of the measures
described in subparagraph (A), and
regulation of the modification and
construction of any stationary source
within the areas covered by the plan as
necessary to assure that national
ambient air quality standards are
achieved, including a permit program as
required in parts C and D of this
subchapter ;. . . (F) require, as may be
prescribed by the Administrator—(i) the
installation, maintenance, and
replacement of equipment, and the
implementation of other necessary
steps, by owners or operators of
stationary sources to monitor emissions
from such sources, (ii) periodic reports
on the nature and amounts of emissions
and emissions-related data from such
sources, and (iii) correlation of such
reports by the State agency with any
emissions limitations or standards
established pursuant to this chapter,
which reports shall be available at
reasonable times for public
inspection.’’ 19
Accordingly, 40 CFR part 51, subpart
K, Source Surveillance, requires the SIP
to provide for monitoring the status of
compliance with the regulations in the
SIP, including ‘‘[p]eriodic testing and
inspection of stationary sources,’’ 20 and
‘‘legally enforceable procedures’’ for
recordkeeping and reporting.21
Furthermore, 40 CFR part 51, appendix
V, Criteria for Determining the
Completeness of Plan Submissions,
18 40
CFR 51.308(i).
U.S.C. 7410(a)(2)(A), (C), and (F).
20 40 CFR 51.212.
21 Id. § 51.214.
19 42
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states in section 2.2 that complete SIPs
contain: ‘‘(g) Evidence that the plan
contains emission limitations, work
practice standards and recordkeeping/
reporting requirements, where
necessary, to ensure emission levels’’;
and ‘‘(h) Compliance/enforcement
strategies, including how compliance
will be determined in practice.’’ 22
F. Regulatory and Legal History for
North Dakota Regional Haze
On March 3, 2010, North Dakota
submitted a SIP that addressed regional
haze requirements under 40 CFR 51.308
for the first regional haze planning
period. The State submitted a
supplement to the March 3, 2010
submittal on July 27, 2010, and a SIP
amendment on July 28, 2011
(collectively, the ‘‘2010 Regional Haze
SIP’’). The State’s 2010 Regional Haze
SIP was submitted to meet the
requirements of the CAA and our rules
for the regional haze program. On April
6, 2012, EPA partially approved and
partially disapproved North Dakota’s
Regional Haze SIP and issued a Federal
Implementation Plan (FIP) to address
the disapproved portions of North
Dakota’s regional haze.23 Among other
items, we approved the incorporation of
North Dakota’s regional haze regulatory
requirements found in NDAC sections
33–15–25–01, 33–15–25–02, 33–15–25–
03, and 33–15–25–04 pertaining to
regional haze definitions, the analysis,
installation, and operation and
maintenance of BART, BART
guidelines, and monitoring,
recordkeeping, and reporting.
Subsequently, several petitioners
challenged EPA’s disapproval of North
Dakota’s 2010 Regional Haze SIP and
issuance of the 2012 FIP in the United
States Court of Appeals for the Eighth
Circuit. On September 23, 2013, the
Eighth Circuit concluded that EPA
properly disapproved portions of the
State’s 2010 Regional Haze SIP and
remanded and vacated portions of EPA’s
FIP.24 25
III. EPA’s Evaluation of North Dakota’s
Regional Haze SIP Revisions
On November 11, 2016 we received
from North Dakota SIP revisions that
included amendments to NDAC section
22 40
CFR part 51, appendix V.
FR 20894 (April 6, 2012).
24 North Dakota v. United States EPA, 730 F.3d
750 (8th Cir. 2013), cert. denied, 134 S. Ct. 2662
(2014).
25 The Eighth Circuit concluded that EPA
properly disapproved portions of the State’s 2010
Regional Haze SIP and upheld portions of EPA’s
FIP. However, the court remanded and vacated
EPA’s FIP promulgating an emission limit of 0.13
lb/MMbtu (30-day rolling average) for Coal Creek
Station.
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33–15–25 (also known as section 33.1–
15–25) 26 addressing regional haze. On
March 15, 2021, we received a
supplemental submission to the 2016
SIP. On August 3, 2020, we received
from North Dakota a SIP revision that
addressed additional amendments to
NDAC section 33.1–15–25 addressing
regional haze. The following is a
discussion of our evaluation.
A. November 11, 2016 Submittal and
March 15, 2021 Supplement
In the November 11, 2016, SIP
submittal supplemented on March 15,
2021, North Dakota removed NDAC
sections 33–15–25–02.1 and 33–15–25–
03 (currently referred to as NDAC
sections 33.1–15–25–02.1 and 33.1–15–
25–03) 27 pertaining to the submission
and guidelines for BART requirements,
respectively.28 Specifically, North
Dakota removed NDAC section 33.1–15–
25–02.1 which required owners and
operators of any existing stationary
facility as defined in 40 CFR 51.301 that
contributes to visibility impairment in a
class I federal area to submit, within
nine months after being notified by the
department, a regional haze BART
analysis to the State. In conjunction,
North Dakota also removed section
33.1–15–25–03 which referenced the
July 6, 2005, version of the federal
guidelines contained in 40 CFR part 51,
appendix Y for preparing BART
determinations.
According to the State, these
subsections were eliminated because
they are no longer requisite. Indeed, we
proposed to approve the remaining
outstanding BART determination for
NOX at Coal Creek Station on April 26,
2018.29 With the submission of a BART
analysis and subsequent BART
determination for Coal Creek Station
completed and submitted to EPA, we
agree with the State’s determination that
owners and operators of BART sources
within the State of North Dakota have
completed and submitted required
26 EPA approved the recodification of the Air
Pollution Control Rules, including those that
address regional haze, from NDAC section 33–15 to
NDAC section 33.1–15. See 84 FR 1610 (February
5, 2019). The recodification changed the regional
haze section of NDAC from section 33–15–25 to
33.1–15–25.
27 In 2019, EPA approved North Dakota’s
recodification of NDAC section 33–15 to 33.1–15
(84 FR 1610, February 5, 2019). Hereinafter, we will
refer to the current NDAC citation.
28 SIP submittal received by EPA on November
11, 2016 with a letter dated October 27, 2016, from
Governor Jack Dalrymple, State of North Dakota to
Shaun McGrath, Regional Administrator, EPA
Region 8. In addition, North Dakota submitted a
letter dated March 15, 2021 supplementing the
November 11, 2016 SIP for the NDAC section 33–
15–25–02.1 and 33–15–25–03.
29 83 FR 18248.
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BART analyses and determinations for
the first planning period of the regional
haze rule, thereby negating the need for
these provisions to remain in the SIP. Of
importance, the State did not remove
BART provisions related to the
installation (NDAC section 33.1–15–25–
02.2) and operation and maintenance of
BART (NDAC section 33.1–15–25–02.3)
which provides for the continued
compliance with the regional haze rule
requirements related to the first
planning period. Furthermore, the State
can rely on its authorities in NDAC
section 23.1–06–04(e), (h), and (j) to
require an updated BART analysis for
Coal Creek Station, if needed.30 Thus,
we propose to approve the removal of
NDAC sections 33.1–15–25–02.1 and
33.1–15–25–03 31 related to the
submission of and guidelines for BART
requirements, respectively.
B. August 3, 2020 Submittal
On August 3, 2020, North Dakota
submitted amendments to NDAC
section 33.1–15–25–01 updating the
date of the Code of Federal Regulations
(CFR) found at 40 CFR 51.301 which the
State incorporated by reference to reflect
the updated July 1, 2019 edition of the
CFR. We are proposing to approve this
revision because it incorporates by
reference EPA’s rule provisions.
In addition, North Dakota added
NDAC section 33.1–15–25–03 to North
Dakota’s regional haze requirements
establishing the framework for requiring
emission control measures to make
reasonable progress towards the State’s
visibility goal for second and
subsequent regional haze planning
periods. Under this new rule the owner
or operator of an existing stationary
source, or group of sources shall
implement emission reduction measures
to make reasonable progress, as
determined in accordance with federal
requirements and required in a SIP
revision developed by the department.
Additionally, the rule requires the
measures be: (1) Implemented within a
30 North Dakota Century Code (NDCC) section
23.1–06–04(e) Issues orders necessary to effectuate
the purpose of this chapter and enforce the orders
by all appropriate administrative and judicial
procedures; NDCC section 23.1–06–04(h) Formulate
and adopt emission control requirements for the
prevention, abatement, and control of air pollution
in this state including achievement of ambient air
quality standards; NDCC section 23.1–06–04(j)
Require the owner and operator of a regulated air
contaminant source to establish and maintain
records; make reports; install, use, and maintain
monitoring equipment or methods; sample
emissions in accordance with those methods at
designated locations and intervals, and using
designated procedures; and provide other
information as may be required.
31 Referenced as NDAC section 33–15–25–02.1
and section 33–15–25–03 in the November 11, 2016
North Dakota SIP.
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reasonable timeframe after EPA
approves the SIP revision; and (2)
properly operated and maintained. The
rule also specifies that emission
reduction measures and compliance
deadlines shall be determined on a
source-by-source basis and included in
the State’s SIP. The regional haze
requirements found in NDAC section
33.1–15–25–03 are consistent with the
federal requirements found at 40 CFR
51.308(f)(2), Long-term strategy for
regional haze, which requires
enforceable emission limitations,
compliance schedules, and other
measures as necessary to make
reasonable progress. Therefore, we are
proposing to approve the addition of
NDAC section 33.1–15–25–03 into the
State’s regional haze requirements.
Finally, North Dakota’s revised NDAC
section 33.1–15–25–04 to broaden the
applicability of this section to make
monitoring, recordkeeping, and
reporting requirements applicable to
sources under the second and
subsequent planning periods of the
regional haze program. Here, the State
expanded the applicability of the rule to
include ‘‘groups of sources’’ and the
installation of ‘‘emission reduction
measures to make reasonable progress.’’
These revisions are consistent the
federal regional haze regulations at 40
CFR 51.308(f)(2), Long-term strategy for
regional haze, which recommends states
consider evaluating groups of sources,
in addition to other types of source,
when determining what emission
reduction measures are necessary to
make reasonable progress. Therefore, we
propose to approve these revisions.
C. Consultation With Federal Land
Managers
There are two Class I areas in the
State of North Dakota: Theodore
Roosevelt National Park and Lostwood
National Wildlife Refuge Wilderness
Area. The National Park Service
manages Theodore Roosevelt National
Park. The United States Fish and
Wildlife Service manage the Lostwood
National Wildlife Refuge Wilderness
Area. The Regional Haze Rule grants the
FLMs a special role in the review of
regional haze implementation plans,
summarized in Section II.D of this
preamble. Under 40 CFR 51.308(i)(2),
North Dakota was obligated to provide
the FLMs with an opportunity for
consultation in development of the
State’s proposed SIP revisions. North
Dakota provided the FLMs with notice
and access to the proposed revisions to
NDAC section 33.1–15–25 prior to the
public hearings held on November 10,
2015, and February 7, 2020.32 The FLMs
did not provide any comments on the
proposed revisions.
IV. Clean Air Act Section 110(l)
Under CAA section 110(l), EPA
cannot approve a plan revision ‘‘if the
revision would interfere with any
applicable requirement concerning
attainment and reasonable further
progress (as defined in section 7501 of
this title), or any other applicable
requirement of this chapter.’’ 33 The
previous sections of the document
explain how the proposed SIP revisions
will comply with applicable regional
haze requirements and general
implementation plan requirements and
further strengthen North Dakota’s
regional haze regulations in accordance
with the revised regional haze rule for
the second and subsequent planning
periods while maintaining regional haze
requirements and associated emission
control measures for the first planning
period. Therefore, we propose to find
that these revisions satisfy section 110(l)
by not interfering with any applicable
requirement concerning attainment and
reasonable further progress or any other
applicable requirement under section
110 of the CAA.
V. Summary of EPA’s Proposed Action
In this action, EPA is proposing to
approve SIP amendments to North
Dakota Air Pollution Control Rules,
shown in Table 1, submitted by the
State of North Dakota on November 11,
2016, and supplemented March 15,
2021, and August 3, 2020.
TABLE 1—LIST OF NORTH DAKOTA AMENDMENTS THAT EPA IS PROPOSING TO APPROVE
Amended Sections in the November 11, 2016 Submittal, Supplemented March 15, 2021, Proposed for Approval
jbell on DSKJLSW7X2PROD with PROPOSALS
NDAC section 33–15–25–02,34 NDAC section 33–15–25–03.35
32 The public hearing associated with the
November 11, 2016, revisions was held on
November 10, 2015 (refer to November 11, 2016 SIP
submittal, page 8). The public hearing associated
with the August 3, 2020 revisions was held on
February 7, 2020 (refer to August 3, 2020 SIP
submittal, page 10).
33 Note that ‘‘reasonable further progress’’ as used
in CAA section 110(l) is a reference to that term as
defined in section 301(a) (i.e., 42 U.S.C. 7501(a)),
and as such means reductions required to attain the
National Ambient Air Quality Standards (NAAQS)
set for criteria pollutants under section 109. This
term as used in section 110(l) (and defined in
section 301(a)) is not synonymous with ‘‘reasonable
progress’’ as that term is used in the regional haze
program. Instead, section 110(l) provides that EPA
cannot approve plan revisions that interfere with
regional haze requirements (including reasonable
progress requirements) insofar as they are ‘‘other
applicable requirement[s]’’ of the CAA.
34 Since North Dakota’s NDAC recodification in
2018, section 33–15–25–02.1 is referred to as
section 33.1–15–25–02.1.
35 Since North Dakota’s NDAC recodification in
2018, section 33–15–25–03 is referred to as section
33.1–15–25–03.
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TABLE 1—LIST OF NORTH DAKOTA AMENDMENTS THAT EPA IS PROPOSING TO APPROVE—Continued
Amended Sections in the August 3, 2020 Submittal Proposed for Approval
NDAC section 33.1–15–25–01, NDAC section 33.1–15–25–03, NDAC section 33.1–15–25–04.
jbell on DSKJLSW7X2PROD with PROPOSALS
VI. Incorporation by Reference
In this document, EPA is proposing to
include regulatory text in an EPA final
rule that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference
NDAC as described in section III. of this
preamble. EPA has made, and will
continue to make, these materials
generally available through
www.regulations.gov (refer to docket
EPA–R08–OAR–2021–0002).
VII. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely proposes to approve state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
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Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the proposed rule does
not have tribal implications and will not
impose substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Greenhouse gases, Incorporation by
reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and
recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 23, 2021.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2021–06399 Filed 3–31–21; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2020–0646; FRL–10021–
65–Region 8]
Approval and Promulgation of
Implementation Plans; Utah; 2017 Base
Year Inventories for the 2015 8-Hour
Ozone National Ambient Air Quality
Standard for the Uinta Basin, Northern
Wasatch Front and Southern Wasatch
Front Nonattainment Areas
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
state implementation plan (SIP) revision
SUMMARY:
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submitted by the State of Utah. The
revision fulfills the base year inventory
requirement for the 2015 8-hour ozone
national ambient air quality standard
(NAAQS) for the Uinta Basin, Northern
Wasatch Front, and Southern Wasatch
Front nonattainment areas. Utah
submitted the base year emissions
inventories to meet, in part, the
nonattainment requirements for
Marginal ozone nonattainment areas
under the 2015 8-hour ozone NAAQS.
EPA is taking this action pursuant to
sections 110, 172, and 182 of the Clean
Air Act (CAA).
DATES: Written comments must be
received on or before May 3, 2021.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2020–0646, to the Federal
Rulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from
www.regulations.gov. EPA may publish
any comment received to its public
docket. Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.,
on the web, cloud, or other file sharing
system). For additional submission
methods, the full EPA public comment
policy, information about CBI or
multimedia submissions, and general
guidance on making effective
comments, please visit https://
www2.epa.gov/dockets/commentingepa-dockets.
Docket: All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
electronically in www.regulations.gov.
To reduce the risk of COVID–19
transmission, for this action we do not
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]]>Agencies
[Federal Register Volume 86, Number 61 (Thursday, April 1, 2021)]
[Proposed Rules]
[Pages 17101-17106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06399]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2021-0002; FRL-10021-88-Region 8]
Approval and Promulgation of Implementation Plans; North Dakota;
Revisions to Air Pollution Control Rules; Regional Haze
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a revision to the North Dakota State Implementation Plan (SIP)
submitted by the State of North Dakota on November 11, 2016 and
supplemented on March 15, 2021, that addresses amendments to the
regional haze provisions of the North Dakota Administrative Code
(NDAC). These revisions were submitted to remove certain regional haze
requirements related to Best Available Retrofit Technology (BART) in
the first planning period. EPA is also proposing to approve a revision
to the North Dakota SIP submitted on August 3, 2020, that addresses
additional amendments to the regional haze provisions of the NDAC. The
2020 SIP revision was submitted to update the incorporation by
reference date for regional haze definitions, add emission reduction
requirements to make reasonable progress during the second and
subsequent regional haze planning periods, and revise the regional haze
monitoring, recordkeeping, and reporting requirements to be applicable
under the second and subsequent planning period. EPA is taking this
action pursuant to section 110 and Part C of the Clean Air Act (CAA).
[[Page 17102]]
DATES: Written comments must be received on or before May 3, 2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2021-0002, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
www.regulations.gov. EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available electronically in
www.regulations.gov. To reduce the risk of COVID-19 transmission, for
this action we do not plan to offer hard copy review of the docket.
Please email or call the person listed in the FOR FURTHER INFORMATION
CONTACT section if you need to make alternative arrangements for access
to the docket.
FOR FURTHER INFORMATION CONTACT: Jaslyn Dobrahner, Air and Radiation
Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver,
Colorado 80202-1129, (303) 312-6252, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean EPA.
I. What action is EPA proposing?
II. Background
A. Requirements of the Clean Air Act and EPA's Regional Haze
Rule
B. Best Available Retrofit Technology
C. Long-Term Strategy and Reasonable Progress Requirements
D. Consultation With Federal Land Managers
E. Monitoring, Recordkeeping, and Reporting
F. Regulatory and Legal History for North Dakota Regional Haze
III. EPA's Evaluation of North Dakota's Regional Haze SIP Revisions
A. November 11, 2016 Submittal and March 15, 2021 Supplement
B. August 3, 2020 Submittal
C. Consultation With Federal Land Managers
IV. Clean Air Act Section 110(l)
V. Summary of EPA's Proposed Action
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews
I. What action is EPA proposing?
EPA is proposing to approve North Dakota's regional haze SIP
revision submitted by the State of North Dakota on November 11, 2016,
and supplemented on March 15, 2021, as discussed in sections III and V
of this proposed rulemaking. Specifically, we are proposing to approve
North Dakota's removal of NDAC section 33-15-25-02.1 (requirement
pertaining to the submittal of a regional haze BART analysis) and
section 33-15-25-03 (requirement that references the federal guidelines
for BART determinations under the regional haze rule) from the regional
haze provisions provided in NDAC section 33-15-25.\1\
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\1\ On August 6, 2018, North Dakota submitted a SIP to EPA that
recodified the Air Pollution Control Rules, including those that
address regional haze, from NDAC section 33-15 to NDAC section 33.1-
15. EPA approved the recodification on February 5, 2019 (84 FR
1610). The recodification made the regional haze section of NDAC to
be changed from section 33-15-25 to section 33.1-15-25. The 2018 SIP
reflected the deletions of section 33.1-15-25-02.1 and section 33.1-
15.25-03 (formerly referred to as section 33-15-25-02.1 and section
33-15-25-03).
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EPA is also proposing to approve a portion of North Dakota's August
3, 2020, SIP revision that addresses NDAC section 33.1-15-25 of the Air
Pollution Control Rules for regional haze.\2\ Specifically, we are
proposing to approve the following revisions to NDAC: Section 33.1-15-
25-01 which updates the incorporation by reference date for regional
haze definitions; section 33.1-15-25-03 which adds emission reduction
requirements to make reasonable progress for the second and subsequent
planning periods; and section 33.1-15-25-04 which revises the regional
haze monitoring, recordkeeping, and reporting requirements to be
applicable to sources under the second and subsequent planning periods.
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\2\ EPA will act on the remaining portions of the ND August 3,
2020, SIP in a future rulemaking.
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II. Background
A. Requirements of the Clean Air Act and EPA's Regional Haze Rule
In section 169A of the CAA, Congress created a program for
protecting visibility in national parks and wilderness areas. This
section of the CAA establishes ``as a national goal the prevention of
any future, and the remedying of any existing, impairment of visibility
in mandatory Class I Federal areas which impairment results from
manmade air pollution.'' \3\
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\3\ 42 U.S.C. 7491(a). Areas designated as mandatory Class I
Federal areas consist of national parks exceeding 6,000 acres,
wilderness areas and national memorial parks exceeding 5,000 acres,
and all international parks that were in existence on August 7,
1977. 42 U.S.C. 7472(a). In accordance with section 169A of the CAA,
EPA, in consultation with the Department of Interior, promulgated a
list of 156 areas where visibility is identified as an important
value. 44 FR 69122 (November 30, 1979). The extent of a mandatory
Class I area includes subsequent changes in boundaries, such as park
expansions. 42 U.S.C. 7472(a). Although states and tribes may
designate as Class I additional areas whose visibility they consider
to be an important value, the requirements of the visibility program
set forth in section 169A of the CAA apply only to ``mandatory Class
I Federal areas.'' Each mandatory Class I Federal area is the
responsibility of a ``Federal Land Manager.'' 42 U.S.C. 7602(i).
When we use the term ``Class I area'' in this action, we mean a
``mandatory Class I Federal area.''
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EPA promulgated a rule to address regional haze on July 1, 1999.\4\
The Regional Haze Rule revised the existing visibility regulations \5\
to integrate provisions addressing regional haze and established a
comprehensive visibility protection program for Class I areas. The
requirements for regional haze, found at 40 CFR 51.308 and 40 CFR
51.309, are included in EPA's visibility protection regulations at 40
CFR 51.300 through 40 CFR 51.309.\6\ EPA revised the Regional Haze Rule
on January 10, 2017.\7\
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\4\ 64 FR 35714, 35714 (July 1, 1999) (codified at 40 CFR part
51, subpart P).
\5\ EPA had previously promulgated regulations to address
visibility impairment in Class I areas that is ``reasonably
attributable'' to a single source or small group of sources, i.e.,
reasonably attributable visibility impairment (RAVI). 45 FR 80084,
80084 (December 2, 1980).
\6\ EPA revised the Regional Haze Rule on January 10, 2017. 82
FR 3078 (January 10, 2017). Under the revised Regional Haze Rule,
the requirements 40 CFR 51.308(d) and (e) apply to first
implementation period SIP submissions and section 51.308(f) applies
to submissions for the second and subsequent implementation periods.
82 FR 3087; see also 81 FR 26942, 26952 (May 4, 2016).
\7\ 82 FR 3078 (January 10, 2017).
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The CAA requires each state to develop a SIP to meet various air
quality requirements, including protection of visibility by submitting
periodic plans demonstrating how they have and will continue to make
progress towards achieving their visibility improvement
[[Page 17103]]
goals.\8\ Regional haze SIPs must assure reasonable progress toward the
national goal of preventing future and remedying existing manmade
visibility impairment in Class I areas. A state must submit its SIP and
SIP revisions to EPA for approval.\9\ The first state plans were due in
2007 and covered the 2008-2018 planning period. State plans covering
the second planning period, 2018-2028, are due on July 31, 2021. Once
approved, a SIP is enforceable by EPA and citizens under the CAA; that
is, the SIP is federally enforceable.
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\8\ 42 U.S.C. 7410(a), 7491, and 7492(a); CAA sections 110(a),
169A, and 169B.
\9\ 42 U.S.C. 7491(b)(2) and 7410.
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B. Best Available Retrofit Technology
Section 169A(b)(2) of the CAA requires SIPs to contain such
measures as may be necessary to make reasonable progress toward meeting
the national visibility goal. Section 169(b)(2)(A) specifies that one
such requirement is for certain categories of existing major stationary
sources built between 1962 and 1977 to procure, install, and operate
BART as determined by the states through their SIPs. Under the Regional
Haze Rule, states (or EPA, in the case of a FIP) are directed to
conduct BART determinations for such ``BART-eligible'' sources--
typically larger, often uncontrolled, and older stationary sources--
that may reasonably be anticipated to cause or contribute to any
visibility impairment in a Class I area.\10\ Rather than requiring
source-specific BART controls, states also have the flexibility to
adopt an emissions trading program or other alternative program as long
as the alternative will achieve greater reasonable progress toward
natural visibility conditions than BART.\11\
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\10\ 40 CFR 51.308(e). EPA designed the Guidelines for BART
Determinations Under the Regional Haze Rule (Guidelines) 40 CFR
appendix Y to part 51 ``to help States and others (1) identify those
sources that must comply with the BART requirement, and (2)
determine the level of control technology that represents BART for
each source.'' Guidelines, section I.A. section II of the Guidelines
describes the four steps to identify BART sources, and section III
explains how to identify BART sources (i.e., sources that are
``subject to BART'').
\11\ 40 CFR 51.308(e)(2). WildEarth Guardians v. EPA, 770 F.3d
919, 934 (10th Cir. 2014).
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C. Long-Term Strategy and Reasonable Progress Requirements
In addition to the BART requirements, the CAA's visibility
protection provisions also require that states' regional haze SIPs
contain a ``long-term (ten to fifteen years) strategy for making
reasonable progress toward meeting the national goal. . . .'' \12\ The
long-term strategy must address regional haze visibility impairment for
each mandatory Class I area within the state and for each mandatory
Class I area located outside the state that may be affected by
emissions from the state. It must include the enforceable emission
limitations, compliance schedules, and other measures necessary to
achieve the reasonable progress goals.\13\ The reasonable progress
goals, in turn, are calculated for each Class I area based on the
control measures states have selected by analyzing the four statutory
``reasonable progress'' factors, which are ``the costs of compliance,
the time necessary for compliance, the energy and non-air quality
environmental impacts of compliance, and the remaining useful life of
any existing source subject to such requirement.'' \14\ Thus, the four
reasonable progress factors are considered by a state in setting the
reasonable progress goal by virtue of the state having first considered
them, and certain other factors listed in Sec. 51.308(d)(3) of the
Regional Haze Rule, when deciding what controls are to be included in
the long-term strategy. Then, the numerical levels of the reasonable
progress goals are the predicted visibility outcome of implementing the
long-term strategy in addition to ongoing pollution control programs
stemming from other CAA requirements.
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\12\ 42 U.S.C. 7491(b)(2)(B).
\13\ 40 CFR 51.308(d)(3).
\14\ 42 U.S.C. 7491(g)(1); 40 CFR 51.308(d)(1)(i).
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Unlike BART determinations, which are required only for the first
regional haze planning period SIPs,\15\ states are required to submit
updates to their long-term strategies, including updated reasonable
progress analyses and reasonable progress goals, in the form of SIP
revisions on July 31, 2021, and at specific intervals thereafter.\16\
In addition, each state must periodically submit a report to EPA at
five-year intervals beginning five years after the submission of the
initial regional haze SIP, evaluating the state's progress towards
meeting the reasonable progress goals for each Class I area within the
state.\17\
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\15\ Under the Regional Haze Rule, SIPs are due for each
regional haze planning period, or implementation period. The terms
``planning period'' and ``implementation period'' are used
interchangeably in this document.
\16\ 40 CFR 51.308(f). The deadline for the 2018 SIP revision
was moved to 2021. 82 FR 3078 (January 10, 2017); see also 40 CFR
51.308(f). Following the 2021 SIP revision deadline, the next SIP
revision is due in 2028. 40 CFR 51.308(f).
\17\ Id. Sec. 51.308(g); Sec. 51.309(d)(10).
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D. Consultation With Federal Land Managers
The Regional Haze Rule requires that a state consult with Federal
Land Managers (FLMs) before adopting and submitting a required SIP or
SIP revision. Further, when considering a SIP revision, a state must
include in its proposal a description of how it addressed any comments
provided by the FLMs.\18\
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\18\ 40 CFR 51.308(i).
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E. Monitoring, Recordkeeping, and Reporting
The CAA requires that SIPs, including regional haze SIPs, contain
elements sufficient to ensure emission limits are practically
enforceable. CAA section 110(a)(2) states that the monitoring,
recordkeeping, and reporting provisions of states' SIPs must: ``(A)
include enforceable emissions limitations and other control measures,
means, or techniques (including economic incentives such as fees,
marketable permits, and auctions of emissions rights), as well as
schedules and timetables for compliance, as may be necessary or
appropriate to meet the applicable requirements of this chapter; . . .
(C) include a program to provide for the enforcement of the measures
described in subparagraph (A), and regulation of the modification and
construction of any stationary source within the areas covered by the
plan as necessary to assure that national ambient air quality standards
are achieved, including a permit program as required in parts C and D
of this subchapter ;. . . (F) require, as may be prescribed by the
Administrator--(i) the installation, maintenance, and replacement of
equipment, and the implementation of other necessary steps, by owners
or operators of stationary sources to monitor emissions from such
sources, (ii) periodic reports on the nature and amounts of emissions
and emissions-related data from such sources, and (iii) correlation of
such reports by the State agency with any emissions limitations or
standards established pursuant to this chapter, which reports shall be
available at reasonable times for public inspection.'' \19\
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\19\ 42 U.S.C. 7410(a)(2)(A), (C), and (F).
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Accordingly, 40 CFR part 51, subpart K, Source Surveillance,
requires the SIP to provide for monitoring the status of compliance
with the regulations in the SIP, including ``[p]eriodic testing and
inspection of stationary sources,'' \20\ and ``legally enforceable
procedures'' for recordkeeping and reporting.\21\ Furthermore, 40 CFR
part 51, appendix V, Criteria for Determining the Completeness of Plan
Submissions,
[[Page 17104]]
states in section 2.2 that complete SIPs contain: ``(g) Evidence that
the plan contains emission limitations, work practice standards and
recordkeeping/reporting requirements, where necessary, to ensure
emission levels''; and ``(h) Compliance/enforcement strategies,
including how compliance will be determined in practice.'' \22\
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\20\ 40 CFR 51.212.
\21\ Id. Sec. 51.214.
\22\ 40 CFR part 51, appendix V.
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F. Regulatory and Legal History for North Dakota Regional Haze
On March 3, 2010, North Dakota submitted a SIP that addressed
regional haze requirements under 40 CFR 51.308 for the first regional
haze planning period. The State submitted a supplement to the March 3,
2010 submittal on July 27, 2010, and a SIP amendment on July 28, 2011
(collectively, the ``2010 Regional Haze SIP''). The State's 2010
Regional Haze SIP was submitted to meet the requirements of the CAA and
our rules for the regional haze program. On April 6, 2012, EPA
partially approved and partially disapproved North Dakota's Regional
Haze SIP and issued a Federal Implementation Plan (FIP) to address the
disapproved portions of North Dakota's regional haze.\23\ Among other
items, we approved the incorporation of North Dakota's regional haze
regulatory requirements found in NDAC sections 33-15-25-01, 33-15-25-
02, 33-15-25-03, and 33-15-25-04 pertaining to regional haze
definitions, the analysis, installation, and operation and maintenance
of BART, BART guidelines, and monitoring, recordkeeping, and reporting.
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\23\ 77 FR 20894 (April 6, 2012).
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Subsequently, several petitioners challenged EPA's disapproval of
North Dakota's 2010 Regional Haze SIP and issuance of the 2012 FIP in
the United States Court of Appeals for the Eighth Circuit. On September
23, 2013, the Eighth Circuit concluded that EPA properly disapproved
portions of the State's 2010 Regional Haze SIP and remanded and vacated
portions of EPA's FIP.24 25
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\24\ North Dakota v. United States EPA, 730 F.3d 750 (8th Cir.
2013), cert. denied, 134 S. Ct. 2662 (2014).
\25\ The Eighth Circuit concluded that EPA properly disapproved
portions of the State's 2010 Regional Haze SIP and upheld portions
of EPA's FIP. However, the court remanded and vacated EPA's FIP
promulgating an emission limit of 0.13 lb/MMbtu (30-day rolling
average) for Coal Creek Station.
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III. EPA's Evaluation of North Dakota's Regional Haze SIP Revisions
On November 11, 2016 we received from North Dakota SIP revisions
that included amendments to NDAC section 33-15-25 (also known as
section 33.1-15-25) \26\ addressing regional haze. On March 15, 2021,
we received a supplemental submission to the 2016 SIP. On August 3,
2020, we received from North Dakota a SIP revision that addressed
additional amendments to NDAC section 33.1-15-25 addressing regional
haze. The following is a discussion of our evaluation.
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\26\ EPA approved the recodification of the Air Pollution
Control Rules, including those that address regional haze, from NDAC
section 33-15 to NDAC section 33.1-15. See 84 FR 1610 (February 5,
2019). The recodification changed the regional haze section of NDAC
from section 33-15-25 to 33.1-15-25.
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A. November 11, 2016 Submittal and March 15, 2021 Supplement
In the November 11, 2016, SIP submittal supplemented on March 15,
2021, North Dakota removed NDAC sections 33-15-25-02.1 and 33-15-25-03
(currently referred to as NDAC sections 33.1-15-25-02.1 and 33.1-15-25-
03) \27\ pertaining to the submission and guidelines for BART
requirements, respectively.\28\ Specifically, North Dakota removed NDAC
section 33.1-15-25-02.1 which required owners and operators of any
existing stationary facility as defined in 40 CFR 51.301 that
contributes to visibility impairment in a class I federal area to
submit, within nine months after being notified by the department, a
regional haze BART analysis to the State. In conjunction, North Dakota
also removed section 33.1-15-25-03 which referenced the July 6, 2005,
version of the federal guidelines contained in 40 CFR part 51, appendix
Y for preparing BART determinations.
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\27\ In 2019, EPA approved North Dakota's recodification of NDAC
section 33-15 to 33.1-15 (84 FR 1610, February 5, 2019).
Hereinafter, we will refer to the current NDAC citation.
\28\ SIP submittal received by EPA on November 11, 2016 with a
letter dated October 27, 2016, from Governor Jack Dalrymple, State
of North Dakota to Shaun McGrath, Regional Administrator, EPA Region
8. In addition, North Dakota submitted a letter dated March 15, 2021
supplementing the November 11, 2016 SIP for the NDAC section 33-15-
25-02.1 and 33-15-25-03.
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According to the State, these subsections were eliminated because
they are no longer requisite. Indeed, we proposed to approve the
remaining outstanding BART determination for NOX at Coal
Creek Station on April 26, 2018.\29\ With the submission of a BART
analysis and subsequent BART determination for Coal Creek Station
completed and submitted to EPA, we agree with the State's determination
that owners and operators of BART sources within the State of North
Dakota have completed and submitted required BART analyses and
determinations for the first planning period of the regional haze rule,
thereby negating the need for these provisions to remain in the SIP. Of
importance, the State did not remove BART provisions related to the
installation (NDAC section 33.1-15-25-02.2) and operation and
maintenance of BART (NDAC section 33.1-15-25-02.3) which provides for
the continued compliance with the regional haze rule requirements
related to the first planning period. Furthermore, the State can rely
on its authorities in NDAC section 23.1-06-04(e), (h), and (j) to
require an updated BART analysis for Coal Creek Station, if needed.\30\
Thus, we propose to approve the removal of NDAC sections 33.1-15-25-
02.1 and 33.1-15-25-03 \31\ related to the submission of and guidelines
for BART requirements, respectively.
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\29\ 83 FR 18248.
\30\ North Dakota Century Code (NDCC) section 23.1-06-04(e)
Issues orders necessary to effectuate the purpose of this chapter
and enforce the orders by all appropriate administrative and
judicial procedures; NDCC section 23.1-06-04(h) Formulate and adopt
emission control requirements for the prevention, abatement, and
control of air pollution in this state including achievement of
ambient air quality standards; NDCC section 23.1-06-04(j) Require
the owner and operator of a regulated air contaminant source to
establish and maintain records; make reports; install, use, and
maintain monitoring equipment or methods; sample emissions in
accordance with those methods at designated locations and intervals,
and using designated procedures; and provide other information as
may be required.
\31\ Referenced as NDAC section 33-15-25-02.1 and section 33-15-
25-03 in the November 11, 2016 North Dakota SIP.
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B. August 3, 2020 Submittal
On August 3, 2020, North Dakota submitted amendments to NDAC
section 33.1-15-25-01 updating the date of the Code of Federal
Regulations (CFR) found at 40 CFR 51.301 which the State incorporated
by reference to reflect the updated July 1, 2019 edition of the CFR. We
are proposing to approve this revision because it incorporates by
reference EPA's rule provisions.
In addition, North Dakota added NDAC section 33.1-15-25-03 to North
Dakota's regional haze requirements establishing the framework for
requiring emission control measures to make reasonable progress towards
the State's visibility goal for second and subsequent regional haze
planning periods. Under this new rule the owner or operator of an
existing stationary source, or group of sources shall implement
emission reduction measures to make reasonable progress, as determined
in accordance with federal requirements and required in a SIP revision
developed by the department. Additionally, the rule requires the
measures be: (1) Implemented within a
[[Page 17105]]
reasonable timeframe after EPA approves the SIP revision; and (2)
properly operated and maintained. The rule also specifies that emission
reduction measures and compliance deadlines shall be determined on a
source-by-source basis and included in the State's SIP. The regional
haze requirements found in NDAC section 33.1-15-25-03 are consistent
with the federal requirements found at 40 CFR 51.308(f)(2), Long-term
strategy for regional haze, which requires enforceable emission
limitations, compliance schedules, and other measures as necessary to
make reasonable progress. Therefore, we are proposing to approve the
addition of NDAC section 33.1-15-25-03 into the State's regional haze
requirements.
Finally, North Dakota's revised NDAC section 33.1-15-25-04 to
broaden the applicability of this section to make monitoring,
recordkeeping, and reporting requirements applicable to sources under
the second and subsequent planning periods of the regional haze
program. Here, the State expanded the applicability of the rule to
include ``groups of sources'' and the installation of ``emission
reduction measures to make reasonable progress.'' These revisions are
consistent the federal regional haze regulations at 40 CFR
51.308(f)(2), Long-term strategy for regional haze, which recommends
states consider evaluating groups of sources, in addition to other
types of source, when determining what emission reduction measures are
necessary to make reasonable progress. Therefore, we propose to approve
these revisions.
C. Consultation With Federal Land Managers
There are two Class I areas in the State of North Dakota: Theodore
Roosevelt National Park and Lostwood National Wildlife Refuge
Wilderness Area. The National Park Service manages Theodore Roosevelt
National Park. The United States Fish and Wildlife Service manage the
Lostwood National Wildlife Refuge Wilderness Area. The Regional Haze
Rule grants the FLMs a special role in the review of regional haze
implementation plans, summarized in Section II.D of this preamble.
Under 40 CFR 51.308(i)(2), North Dakota was obligated to provide the
FLMs with an opportunity for consultation in development of the State's
proposed SIP revisions. North Dakota provided the FLMs with notice and
access to the proposed revisions to NDAC section 33.1-15-25 prior to
the public hearings held on November 10, 2015, and February 7,
2020.\32\ The FLMs did not provide any comments on the proposed
revisions.
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\32\ The public hearing associated with the November 11, 2016,
revisions was held on November 10, 2015 (refer to November 11, 2016
SIP submittal, page 8). The public hearing associated with the
August 3, 2020 revisions was held on February 7, 2020 (refer to
August 3, 2020 SIP submittal, page 10).
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IV. Clean Air Act Section 110(l)
Under CAA section 110(l), EPA cannot approve a plan revision ``if
the revision would interfere with any applicable requirement concerning
attainment and reasonable further progress (as defined in section 7501
of this title), or any other applicable requirement of this chapter.''
\33\ The previous sections of the document explain how the proposed SIP
revisions will comply with applicable regional haze requirements and
general implementation plan requirements and further strengthen North
Dakota's regional haze regulations in accordance with the revised
regional haze rule for the second and subsequent planning periods while
maintaining regional haze requirements and associated emission control
measures for the first planning period. Therefore, we propose to find
that these revisions satisfy section 110(l) by not interfering with any
applicable requirement concerning attainment and reasonable further
progress or any other applicable requirement under section 110 of the
CAA.
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\33\ Note that ``reasonable further progress'' as used in CAA
section 110(l) is a reference to that term as defined in section
301(a) (i.e., 42 U.S.C. 7501(a)), and as such means reductions
required to attain the National Ambient Air Quality Standards
(NAAQS) set for criteria pollutants under section 109. This term as
used in section 110(l) (and defined in section 301(a)) is not
synonymous with ``reasonable progress'' as that term is used in the
regional haze program. Instead, section 110(l) provides that EPA
cannot approve plan revisions that interfere with regional haze
requirements (including reasonable progress requirements) insofar as
they are ``other applicable requirement[s]'' of the CAA.
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V. Summary of EPA's Proposed Action
In this action, EPA is proposing to approve SIP amendments to North
Dakota Air Pollution Control Rules, shown in Table 1, submitted by the
State of North Dakota on November 11, 2016, and supplemented March 15,
2021, and August 3, 2020.
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\34\ Since North Dakota's NDAC recodification in 2018, section
33-15-25-02.1 is referred to as section 33.1-15-25-02.1.
\35\ Since North Dakota's NDAC recodification in 2018, section
33-15-25-03 is referred to as section 33.1-15-25-03.
Table 1--List of North Dakota Amendments that EPA Is Proposing To
Approve
Amended Sections in the November 11, 2016 Submittal, Supplemented March
15, 2021, Proposed for Approval
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NDAC section 33-15-25-02,\34\ NDAC section 33-15-25-03.\35\
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[[Page 17106]]
Amended Sections in the August 3, 2020 Submittal Proposed for Approval
------------------------------------------------------------------------
NDAC section 33.1-15-25-01, NDAC section 33.1-15-25-03, NDAC section
33.1-15-25-04.
VI. Incorporation by Reference
In this document, EPA is proposing to include regulatory text in an
EPA final rule that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference NDAC as described in section III. of this preamble. EPA has
made, and will continue to make, these materials generally available
through www.regulations.gov (refer to docket EPA-R08-OAR-2021-0002).
VII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the proposed rule does not have tribal implications and will
not impose substantial direct costs on tribal governments or preempt
tribal law as specified by Executive Order 13175 (65 FR 67249, November
9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Greenhouse gases, Incorporation by reference, Intergovernmental
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 23, 2021.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2021-06399 Filed 3-31-21; 8:45 am]
BILLING CODE 6560-50-P
