Air Plan Partial Approval and Partial Disapproval; North Dakota; Regional Haze State Implementation Plan for the Second Implementation Period, 56693-56714 [2024-14761]
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Federal Register / Vol. 89, No. 132 / Wednesday, July 10, 2024 / Proposed Rules
schools, hospitals, and emergency
services. The public users can also see
measurements from air monitors and
generate a report when using the tool.
The EPA has reviewed this material
but has determined that conducting a
comprehensive EJ analysis is not
necessary in the context of this SIP
submission for addressing planning
elements for the 2008 and 2015 ozone
8-hour NAAQS, as the CAA and its
applicable implementing regulations
neither prohibit nor require such an
evaluation of EJ in relation to the
relevant requirements. Additionally,
there is no evidence suggesting that this
action contradicts the goals of E.O.
12898 or that it will disproportionately
harm any specific group or have severe
health or environmental impacts.
However, the EPA expects that this
action, which assesses whether New
Jersey’s SIP adequately addresses
planning elements for the 2008 and
2015 ozone 8-hour NAAQS, will
generally have a neutral impact on all
populations, including communities of
color and low-income groups. At the
very least, it will not worsen existing air
quality standards.
In summary, the EPA concludes, for
informational purposes only, that this
proposed rule will not
disproportionately harm communities
with environmental justice concerns.
New Jersey did evaluate EJ
considerations voluntarily in its SIP
submission, but the EPA’s assessment of
these considerations is provided for
context, not as the basis for the action.
The EPA is taking action under the CAA
independently of the State’s EJ
assessment.
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VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA 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 proposed 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 14094 (88 FR
21879, April 11, 2023);
• Does not impose an information
collection burden under the provisions
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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 subject to Executive Order
13045 (62 FR 19885, April 23, 1997)
because it approves a State program;
• 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 Clean Air Act.
In addition, this proposed rulemaking
action pertaining to New Jersey’s
submissions, 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 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. EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ 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.’’
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56693
The NJDEP evaluated environmental
justice as part of its SIP submittal even
though the CAA and applicable
implementing regulations neither
prohibit nor require an evaluation. The
EPA’s evaluation of the NJDEP’s
environmental justice considerations is
described above in the section titled,
‘‘Environmental Justice
Considerations.’’ 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. The EPA is taking action
under the CAA on bases independent of
New Jersey’s evaluation of
environmental justice. In addition, there
is no information in the record upon
which this decision is based that is
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, Incorporation by
reference, Nitrogen dioxide,
Intergovernmental relations, Ozone,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2024–14927 Filed 7–8–24; 4:15 pm]
BILLING CODE 6560–50–P
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
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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
SUMMARY:
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Federal Register / Vol. 89, No. 132 / Wednesday, July 10, 2024 / Proposed Rules
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,
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telephone number: (303) 312–6241,
email address: dejong.holly@epa.gov; 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: stein.joseph@
epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
the EPA.
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
Table of Contents
I. What action is the EPA proposing?
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)
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
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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
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.
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
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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.
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
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.
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perception of clarity and color, as well
as visible distance.4
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’’;
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 (bext) 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/guidanceregional-haze-state-implementation-plans-secondimplementation-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.
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).
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56695
therefore, all states must submit regional
haze SIPs.6 Id. at 35721.
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).
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).
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).
7 The EPA uses the terms ‘‘implementation
period’’ and ‘‘planning period’’ interchangeably.
8 The EPA established the URP framework in the
1999 RHR to provide ‘‘an equitable analytical
approach’’ to assessing the rate of visibility
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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 longterm 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).
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
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 RooseveltCampobello International Park, the Chairman of the
Roosevelt-Campobello International Park
Commission.’’ 40 CFR 51.301.
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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
10 Guidance on Regional Haze State
Implementation Plans for the Second
Implementation Period. https://www.epa.gov/
visibility/guidance-regional-haze-stateimplementation-plans-second-implementationperiod. 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/clarificationsregarding-regional-haze-state-implementationplans-for-the-second-implementation-period.pdf.
The EPA Office of Air Quality Planning and
Standards, Research Triangle Park (July 8, 2021).
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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
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
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-visibilityprogress-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-datausage-and-completeness-regional-haze-program.
The EPA Office of Air Quality Planning and
Standards, Research Triangle Park (June 3, 2020).
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’’).
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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 longterm, 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.
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).
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.
15 RPOs are sometimes also referred to as ‘‘multijurisdictional organizations,’’ or MJOs. For the
purposes of this document, the terms RPO and MJO
are synonymous.
16 A full list of WRAP members is available at
https://www.westar.org/wrap-council-members/.
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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.
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
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
FR 20894 (April 6, 2012).
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.
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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.
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.
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, § 51.308(f)
lays out the process by which states
22 83
FR 18248 (April 26, 2018).
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).
26 North Dakota refers to its January 2, 2013, SIP
submission as SIP Supplement No. 2.
23 North
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determine what constitutes their longterm strategies, with the order of the
requirements in § 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
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
§ 51.308(d), ‘‘tracked the actual planning
sequence.’’ (82 FR at 3091).
28 The five ‘‘additional factors’’ for consideration
in § 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.
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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).
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 § 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
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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 § 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 § 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.
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
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.
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.
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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.
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 nonenforceable 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
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.’’
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.
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not necessary for reasonable progress.
82 FR at 3107 footnote 116.
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
§ 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).
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,
33 Four-factor analysis considers the four
statutory factors specified in CAA 169A(g)(1) and
40 CFR 51.308(f)(2)(i).
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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 instate 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 outof-state contributors. 2021 Clarifications
Memo at 4.34
Thus, while states have discretion to
choose any source selection
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.
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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
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
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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.
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
reasonable progress determination for each source
or subgroup. 2021 Clarifications Memo at 7–8.
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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, § 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.’’
As explained above, § 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 § 51.308(f)(2), measures that
are necessary to make reasonable
progress towards the national visibility
goal must be included in a state’s longterm 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
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.
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).
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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 longterm strategy or its SIP.
As with source selection, the
characterization of information on each
of the factors is also subject to the
documentation requirement in
§ 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, § 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,
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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.
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
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).
40 The five ‘‘additional factors’’ for consideration
in § 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.
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EPA provided further guidance on the
five additional factors in the 2021
Clarifications Memo, explaining that a
state should generally not reject costeffective 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.
Because the air pollution that causes
regional haze crosses state boundaries,
§ 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
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its SIP submission all substantive
consultations with other contributing
states. 40 CFR 51.308(f)(2)(ii)(C).
D. Reasonable Progress Goals
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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 fourfactor 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 nonSIP 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.
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
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 longterm strategies on disparate schedules, as well as for
adjusting RPGs using a post-modeling approach.
2019 Guidance at 47–48.
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described in their RPGs, § 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-thebooks and/or on-the-way control
measures (i.e., control measures already
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required or anticipated before the fourfactor 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
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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
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
§ 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.
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
42 See
‘‘Step 8: Additional requirements for
regional haze SIPs’’ in 2019 Guidance at 55.
43 Id.
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.
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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, § 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
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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
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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,
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.’’
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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
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
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.’’
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.’’
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natural visibility on the 20% most
impaired days.54
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 longterm 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 fourfactor 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
§ 51.308(f)(2)(iv). As part of its
reasonable progress determinations, the
state must describe the criteria used to
54 Id. at 57, ‘‘Figure 22: TRNP Most Impaired Days
Progress with Adjusted Glidepath from 2000–
2018.’’
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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 § 51.308(f). Where an RPO has
performed source selection and/or fourfactor analyses (or considered the five
additional factors in § 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 § 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
§ 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
§ 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
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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.
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 longterm 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.
55 We refer to the CAA section 169A(g)(1)
requirements as the four factors.
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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
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
56 North
Dakota’s 2022 SIP submission at 99, 101.
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.
57 Id.
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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 costeffective 61 and otherwise reasonable
controls at Coyote Station and Antelope
Valley.
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
60 Id.
at 100, 102.
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 costeffective. 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.
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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
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-ofstate 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
Dakota’s 2022 SIP submission at 100.
at 100 (Coyote Station), 102 (Antelope
Valley).
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63 Id.
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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
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 nonstatutory 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 costeffective controls selected through fourfactor 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
64 82
FR at 3093.
Clarifications Memo at 14.
65 2021
66 Id.
67 Id.
at 13.
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.
68 North
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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.
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 costeffective 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 fourfactor 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.
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
70 ‘‘CAMPD Emissions Custom Data Download,’’
available in the docket for this action.
71 Id.
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.
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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
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
(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-ofstate 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
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77 2021
Clarifications Memo at 14.
78 Id.
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(section 5) of North Dakota’s 2022 SIP
submission does not even reference outof-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 outof-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 longterm 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.
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
79 CAA
169A(b)(2).
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.
80 North
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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.
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
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.
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.
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benefits at Class I areas were not
significant enough to justify inclusion of
those controls in its long-term strategy.
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
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.
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
85 See
footnote 55.
Dakota’s 2022 SIP submission, appendix
86 North
C.3–13.
87 Id.
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.
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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.
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
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.
In sum, data from the WEP analysis,
WRAP’s TSS, and visibility modeling
performed by Minnesota indicate that
90 North Dakota’s 2022 SIP submission, appendix
C.3–7.
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.
92 Minnesota’s 2022 SIP submission, 31.
93 Id. at 144.
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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-ofstate 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:
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
94 North
Dakota’s 2022 SIP submission, 100, 102.
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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
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.
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
FR at 3099–3100.
Guidance at 50.
97 2021 Clarifications Memo at 15–16.
98 North Dakota’s 2022 SIP submission, 103, 144.
99 82 FR at 3099; see also CAA 169A(b)(2)(B),
(g)(1).
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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.
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 fourfactor 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 costeffectiveness 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.
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
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.
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.
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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.
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
103 Id.,
appendix A.4–4.
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.
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.
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conclude that North Dakota’s rejection
of these controls was justified under the
CAA and RHR.
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 costeffective 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.
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
at 103.
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, BARTeligible sources will be subject to the requirements
of paragraphs (d) and (f) of this section.’’
112 2021 Clarifications Memo at 5.
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111 40
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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
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,
113 Id.
at 33–34, appendix E.2.
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, . . .
114 See
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we find that North Dakota’s 2022 SIP
Submission does not satisfy the longterm 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.
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.
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).
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D. Reasonably Attributable Visibility
Impairment (RAVI)
The RHR contains a requirement at
§ 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
including . . . a long-term . . . strategy for making
reasonable progress[.]’’).
115 North Dakota’s 2022 SIP Submission, section
6.
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‘‘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).
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
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.
118 82 FR at 3085.
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North Dakota has satisfied
§ 51.308(f)(6)(i).
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-ofstate 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
§ 51.308(f)(6)(ii) by relying on WRAP’s
source-apportionment analyses.
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
§ 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
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.
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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
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
Finally, § 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.
121 North
Dakota’s 2022 SIP submission, 66–68,
140.
122 Id.
at 140.
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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, § 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
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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).
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.
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
123 Coal Creek Station Unit 1 and 2 NO BART
X
limits are addressed in section 8 and appendix F
of North Dakota’s 2022 SIP submission.
124 North Dakota’s 2022 SIP submission, 150.
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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, nonroad 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
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.
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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
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.
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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.
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
126 The USFWS did not comment on North
Dakota’s 2022 SIP submission.
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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
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.
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The full, detailed EJScreen reports are
provided in the docket for this
rulemaking.
VII. Statutory and Executive Order
Reviews
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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);
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• 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
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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
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]]>Agencies
[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\
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\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.
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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.
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\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.
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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\
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\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.
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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.
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\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).
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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).
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\7\ The EPA uses the terms ``implementation period'' and
``planning period'' interchangeably.
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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).
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\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.
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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\
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\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).
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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\
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\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'').
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[[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.
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\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.
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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).
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\16\ A full list of WRAP members is available at https://www.westar.org/wrap-council-members/.
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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.
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\17\ 77 FR 20894 (April 6, 2012).
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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\
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\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.
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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.
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\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).
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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.
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\26\ North Dakota refers to its January 2, 2013, SIP submission
as SIP Supplement No. 2.
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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).
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\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.
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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.
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\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.
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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.
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\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.''
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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.
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\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.
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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).
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\33\ Four-factor analysis considers the four statutory factors
specified in CAA 169A(g)(1) and 40 CFR 51.308(f)(2)(i).
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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\
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\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.
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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.
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\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.
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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.''
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\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.
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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.
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\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).
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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.
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\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).
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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.
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\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.
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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.
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\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.
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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\
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\42\ See ``Step 8: Additional requirements for regional haze
SIPs'' in 2019 Guidance at 55.
\43\ Id.
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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.
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\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.
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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\
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\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.''
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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\
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\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.''
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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.
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\55\ We refer to the CAA section 169A(g)(1) requirements as the
four factors.
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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\
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\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.
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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.
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\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.
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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\
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\62\ North Dakota's 2022 SIP submission at 100.
\63\ Id. at 100 (Coyote Station), 102 (Antelope Valley).
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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\
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\64\ 82 FR at 3093.
\65\ 2021 Clarifications Memo at 14.
\66\ Id.
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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.
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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.
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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\
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\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.
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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.
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\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.
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\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[.]'').
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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.
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\115\ North Dakota's 2022 SIP Submission, section 6.
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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).
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\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.
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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).
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\118\ 82 FR at 3085.
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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.
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\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.
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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\
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\121\ North Dakota's 2022 SIP submission, 66-68, 140.
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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\
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\122\ Id. at 140.
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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).
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\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.
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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.
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\124\ North Dakota's 2022 SIP submission, 150.
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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\
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\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.
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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.
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\126\ The USFWS did not comment on North Dakota's 2022 SIP
submission.
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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.
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\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.
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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
