Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Proposed Rules 14055 

1 42 U.S.C. 7491(a). Areas designated as 

mandatory Class I Federal areas consist of national 

parks exceeding 6000 acres, wilderness areas and 

national memorial parks exceeding 5000 acres, and 

all international parks that were in existence on 

August 7, 1977. 42 U.S.C. 7472(a). In accordance 

with section 169A of the CAA, EPA, in consultation 

with the Department of Interior, promulgated a list 

of 156 areas where visibility is identified as an 

important value. 44 FR 69122 (November 30, 1979). 

The extent of a mandatory Class I area includes 

subsequent changes in boundaries, such as park 

expansions. 42 U.S.C. 7472(a). Although states and 

tribes may designate as Class I additional areas 

which they consider to have visibility as an 

important value, the requirements of the visibility 

program set forth in section 169A of the CAA apply 

only to ‘‘mandatory Class I Federal areas.’’ Each 

mandatory Class I Federal area is the responsibility 

of a ‘‘Federal Land Manager.’’ 42 U.S.C. 7602(i). 

When we use the term ‘‘Class I area’’ in this section, 

we mean a ‘‘mandatory Class I Federal area.’’ 

2 64 FR 35714 (July 1, 1999) (amending 40 CFR 

part 51, subpart P). 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2010–0406; FRL–10020– 

82–Region 8] 

Approval and Promulgation of Air 

Quality Implementation Plans; North 

Dakota; Regional Haze State and 

Federal Implementation Plans 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

State Implementation Plan (SIP) 

revision submitted by the State of North 

Dakota on August 3, 2020, addressing 

regional haze. Specifically, EPA is 

proposing to approve Amendment No. 2 

to the North Dakota SIP for Regional 

Haze to satisfy certain requirements for 

the first implementation period of the 

Clean Air Act’s (CAA) regional haze 

program. Amendment No. 2 adopts the 

same regional haze requirements for the 

Antelope Valley Station promulgated by 

EPA in our 2012 Federal 

Implementation Plan (FIP). In 

conjunction with this proposed 

approval of Amendment No. 2, we also 

propose to withdraw the portions of our 

2012 FIP that apply to the Antelope 

Valley Station. EPA is proposing this 

action pursuant to sections 110 and 

169A of the CAA. 

DATES: Comments: Written comments 

must be received on or before May 11, 

2021. Public hearing: If anyone contacts 

us requesting a public hearing on or 

before March 29, 2021, we will hold a 

hearing. Additional information about 

the hearing, if requested, will be 

published in a subsequent Federal 

Register document. Contact Aaron 

Worstell at (303) 312–6073, or at 

worstell.aaron@epa.gov, to request a 

hearing or to determine if a hearing will 

be held. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2010–0406, to the Federal 

Rulemaking Portal: https://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from 

www.regulations.gov. EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, the full EPA public comment 

policy, information about CBI or 

multimedia submissions, and general 

guidance on making effective 

comments, please visit http://

www.epa.gov/dockets/commenting-epadockets. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

electronically in www.regulations.gov. 

To reduce the risk of COVID–19 

transmission, for this action we do not 

plan to offer hard copy review of the 

docket. Please email or call the person 

listed in the FOR FURTHER INFORMATION

CONTACT section if you need to make 

alternative arrangements for access to 

the docket. 

FOR FURTHER INFORMATION CONTACT: 

Aaron Worstell, Air and Radiation 

Division, EPA, Region 8, Mailcode 

8ARD–IO, 1595 Wynkoop Street, 

Denver, Colorado, 80202–1129, (303) 

312–6073, worstell.aaron@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

Table of Contents 

I. Background 

A. Requirements of the Clean Air Act and 

EPA’s Regional Haze Rule 

B. Best Available Retrofit Technology 

C. Long-Term Strategy and Reasonable 

Progress Requirements 

D. Monitoring, Recordkeeping, and 

Reporting 

E. Consultation With Federal Land 

Managers 

F. Clean Air Act Section 110(l) 

G. Regulatory and Legal History of the 

North Dakota Regional Haze State 

Implementation Plan 

II. EPA’s Evaluation of Amendment No. 2 to 

the North Dakota Regional Haze State 

Implementation Plan 

A. Reasonable Progress Requirements for 

the Antelope Valley Station 

B. Consultation With Federal Land 

Managers 

III. EPA’s Proposed Action 

A. Amendment No. 2 to the North Dakota 

Regional Haze State Implementation 

Plan 

B. Federal Implementation Plan 

Withdrawal 

C. Clean Air Section 110(l) 

IV. Incorporation by Reference 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Executive Order 13771: Reducing 

Regulations and Controlling Regulatory 

Costs 

C. Paperwork Reduction Act 

D. Regulatory Flexibility Act 

E. Unfunded Mandates Reform Act 

(UMRA) 

F. Executive Order 13132: Federalism 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

H. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

I. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

J. National Technology Transfer and 

Advancement Act 

K. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. Background 

A. Requirements of the Clean Air Act 

and EPA’s Regional Haze Rule 

In CAA section 169A, Congress 

created a program for protecting 

visibility in national parks and 

wilderness areas. This section of the 

CAA establishes ‘‘as a national goal the 

prevention of any future, and the 

remedying of any existing, impairment 

of visibility in mandatory Class I 

Federal areas which impairment results 

from manmade air pollution.’’ 1

EPA promulgated a rule to address 

regional haze on July 1, 1999.2 The 

Regional Haze Rule revised the existing 

14056 Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Proposed Rules 

3EPA had previously promulgated regulations to 

address visibility impairment in Class I areas that 

is ‘‘reasonably attributable’’ to a single source or 

small group of sources, i.e., reasonably attributable 

visibility impairment (RAVI). 45 FR 80084, 80084 

(December 2, 1980). 

4 82 FR 3078 (January 10, 2017). Under the 

revised Regional Haze Rule, the requirements 40 

CFR 51.308(d) and (e) apply to first implementation 

period SIP submissions and 51.308(f) applies to 

submissions for the second and subsequent 

implementation periods. 82 FR 3087; see also 81 FR 

26942, 26952 (May 4, 2016). 

5 42 U.S.C. 7410(a), 7491, and 7492(a). 

6 42 U.S.C. 7410(c)(1). 

7 40 CFR 51.308(e). BART-eligible sources are 

those sources that have the potential to emit 250 

tons or more of a visibility-impairing air pollutant, 

were not in operation prior to August 7, 1962, but 

were in existence on August 7, 1977, and whose 

operations fall within one or more of 26 specifically 

listed source categories. 40 CFR 51.301. 

EPA designed the Guidelines for BART 

Determinations Under the Regional Haze Rule 

(Guidelines) ‘‘to help States and others (1) identify 

those sources that must comply with the BART 

requirement, and (2) determine the level of control 

technology that represents BART for each source.’’ 

40 CFR part 51, appendix Y, section I.A. Section II 

of the Guidelines describes the four steps to identify 

BART sources, and section III explains how to 

identify BART sources (i.e., sources that are 

‘‘subject to BART’’). 

8 40 CFR 51.308(e)(2) and (3). 

9 42 U.S.C. 7491(b)(2)(B). 

10 40 CFR 51.308(d)(3). 

11 42 U.S.C. 7491(g)(1); 40 CFR 51.308(d)(1)(i). 

12Under the Regional Haze Rule, SIPs are due for 

each regional haze planning period, or 

implementation period. The terms ‘‘planning 

period’’ and ‘‘implementation period’’ are used 

interchangeably in this document. 

13 40 CFR 51.308(f). The deadline for the 2018 SIP 

revision was moved to 2021. 82 FR 3078 (January 

10, 2017); see also 40 CFR 51.308(f). Following the 

2021 SIP revision deadline, the next SIP revision is 

due in 2028. 40 CFR 51.308(f). 

14 Id. § 51.308(g); § 51.309(d)(10). 

15 42 U.S.C. 7410(a)(2)(A), (C), and (F). 

16 40 CFR 51.212(a). 

17 Id. § 51.211. 

visibility regulations 3 to integrate 

provisions addressing regional haze and 

established a comprehensive visibility 

protection program for Class I areas. The 

requirements for regional haze, found at 

40 CFR 51.308 and 51.309, are included 

in EPA’s visibility protection 

regulations at 40 CFR 51.300–51.309. 

EPA most recently revised the Regional 

Haze Rule on January 10, 2017.4

The CAA requires each state to 

develop a SIP to meet various air quality 

requirements, including protection of 

visibility.5 Regional haze SIPs must 

assure reasonable progress toward the 

national goal of achieving natural 

visibility conditions in Class I areas. A 

state must submit its SIP and SIP 

revisions to EPA for approval. Once 

approved, a SIP is enforceable by EPA 

and citizens under the CAA; that is, the 

SIP is federally enforceable. If a state 

fails to make a required SIP submittal, 

or if we find that a state’s required 

submittal is incomplete or not 

approvable, then we must promulgate a 

FIP to fill this regulatory gap, unless the 

state corrects the deficiency.6

B. Best Available Retrofit Technology 

Section 169A of the CAA directs EPA 

to require states to evaluate the use of 

retrofit controls at certain larger, often 

uncontrolled, older stationary sources in 

order to address visibility impacts from 

these sources. Specifically, section 

169A(b)(2)(A) of the CAA requires state 

implementation plans to contain such 

measures as may be necessary to make 

reasonable progress toward the natural 

visibility goal, including a requirement 

that certain categories of existing major 

stationary sources built between 1962 

and 1977 procure, install, and operate 

the ‘‘Best Available Retrofit 

Technology’’ (BART) as determined by 

the states. Under the Regional Haze 

Rule, states are directed to conduct 

BART determinations for such ‘‘BARTeligible’’ sources that may reasonably be 

anticipated to cause or contribute to any 

visibility impairment in a Class I area.7

Rather than requiring source-specific 

BART controls, states also have the 

flexibility to adopt alternative measures, 

as long as the alternative provides 

greater reasonable progress towards 

natural visibility conditions than BART 

(i.e., the alternative must be ‘‘better than 

BART’’).8

C. Long-Term Strategy and Reasonable 

Progress Requirements 

In addition to the BART requirements, 

the CAA’s visibility protection 

provisions also require that states’ 

regional haze SIPs contain a ‘‘long-term 

(ten to fifteen years) strategy for making 

reasonable progress toward meeting the 

national goal. . ..’’ 9 The long-term 

strategy must address regional haze 

visibility impairment for each 

mandatory Class I area within the state 

and for each mandatory Class I area 

located outside the state that may be 

affected by emissions from the state. It 

must include the enforceable emission 

limitations, compliance schedules, and 

other measures necessary to achieve the 

reasonable progress goals.10 The 

reasonable progress goals, in turn, are 

calculated for each Class I area based on 

the control measures states have 

selected by analyzing the four statutory 

‘‘reasonable progress’’ factors, which are 

‘‘the costs of compliance, the time 

necessary for compliance, the energy 

and non-air quality environmental 

impacts of compliance, and the 

remaining useful life of any existing 

source subject to such requirement.’’ 11

Thus, the four reasonable progress 

factors are considered by a state in 

setting the reasonable progress goal by 

virtue of the state having first 

considered them, and certain other 

factors listed in § 51.308(d)(3) of the 

Regional Haze Rule, when deciding 

what controls are to be included in the 

long-term strategy. Then, the numerical 

levels of the reasonable progress goals 

are the predicted visibility outcome of 

implementing the long-term strategy in 

addition to ongoing pollution control 

programs stemming from other CAA 

requirements. 

Unlike BART determinations, which 

are required only for the first regional 

haze planning period SIPs,12 states are 

required to submit updates to their longterm strategies, including updated 

reasonable progress analyses and 

reasonable progress goals, in the form of 

SIP revisions on July 31, 2021, and at 

specific intervals thereafter.13 In 

addition, each state must periodically 

submit a report to EPA at five-year 

intervals beginning five years after the 

submission of the initial regional haze 

SIP, evaluating the state’s progress 

towards meeting the reasonable progress 

goals for each Class I area within the 

state.14

D. Monitoring, Recordkeeping, and 

Reporting 

CAA section 110(a)(2) requires that 

SIPs, including regional haze SIPs, 

contain monitoring, record keeping, and 

reporting provisions sufficient to ensure 

emission limits are practically 

enforceable.15 Accordingly, 40 CFR part 

51, subpart K, Source Surveillance, 

requires the SIP to provide for 

monitoring the status of compliance 

with the regulations in it, including 

‘‘[p]eriodic testing and inspection of 

stationary sources,’’ 16 and ‘‘legally 

enforceable procedures’’ for 

recordkeeping and reporting.17

Furthermore, 40 CFR part 51, appendix 

V, Criteria for Determining the 

Completeness of Plan Submissions, 

states in section 2.2 that complete SIPs 

contain: ‘‘(g) Evidence that the plan 

contains emission limitations, work 

practice standards and recordkeeping/ 

reporting requirements, where 

necessary, to ensure emission levels’’; 

and ‘‘(h) Compliance/enforcement 

strategies, including how compliance 

will be determined in practice.’’ 

E. Consultation With Federal Land 

Managers 

The Regional Haze Rule requires that 

a state consult with Federal Land 

Managers (FLMs) before adopting and 

submitting a required SIP or SIP 

revision. Under 40 CFR 51.308(i)(2), a 

Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Proposed Rules 14057 

18 40 CFR 51.308(i). 19 42 U.S.C. 7410(l). Note that ‘‘reasonable further 

progress’’ as used in CAA section 110(l) is a 

reference to that term as defined in section 301(a) 

(i.e., 42 U.S.C. 7501(a)), and as such means 

reductions required to attain the National Ambient 

Air Quality Standards (NAAQS) set for criteria 

pollutants under CAA section 109. This term as 

used in section 110(l) (and defined in section 

301(a)) is not synonymous with ‘‘reasonable 

progress’’ as that term is used in the regional haze 

program. Instead, section 110(l) provides that EPA 

cannot approve plan revisions that interfere with 

regional haze requirements (including reasonable 

progress requirements) insofar as they are ‘‘other 

applicable requirement[s]’’ of the CAA. 

20 In general, a section 110(l) demonstration 

should address all pollutants whose emissions and/ 

or ambient concentrations would change as a result 

of a plan revision. 

21 77 FR 20894 (April 6, 2012). 

22Basin Electric began operating the new NOX

controls at Antelope Valley Station Units 1 and 2 

in May of 2014 and June of 2016, respectively, as 

reported to EPA Air Markets Program Data, 

available at http://ampd.epa.gov/ampd/. 

23North Dakota v. EPA, 730 F.3d 750 (8th Cir. 

2013), cert. denied, 134 S. Ct. 2662 (2014). 

24Letter dated July 28, 2020, from Doug Burgum, 

Governor, North Dakota, to Gregory Sopkin, 

Regional Administrator, EPA Region 8, Subject: 

Revisions to North Dakota Regional Haze SIP for 

control of air pollution; North Dakota, Final 

Revisions to Implementation Plan for Control of Air 

Pollution, Amendment No. 2 to North Dakota State 

Implementation Plan First Planning Period for 

Regional Haze (July 2020) (Amendment No. 2). 

25 76 FR 58570, 58624 (September 21, 2011). 

state must provide an opportunity for 

consultation no less than 60 days prior 

to holding any public hearing or other 

public comment opportunity on a SIP or 

SIP revision for regional haze. Further, 

when considering a SIP or SIP revision, 

a state must include in its proposal a 

description of how it addressed any 

comments provided by the FLMs.18

F. Clean Air Act Section 110(l) 

Under CAA section 110(l), EPA 

cannot approve a plan revision ‘‘if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress (as defined in section 7501 of 

this title), or any other applicable 

requirement of this chapter.’’ 19 CAA 

section 110(l) applies to all 

requirements of the CAA and to all areas 

of the country, whether attainment, 

nonattainment, unclassifiable or 

maintenance for one or more of the six 

criteria pollutants. EPA interprets 

section 110(l) as applying to all National 

Ambient Air Quality Standards 

(NAAQS) that are in effect, including 

those for which SIP submissions have 

not been made.20 However, the level of 

rigor needed for any CAA section 110(l) 

demonstration will vary depending on 

the nature and circumstances of the 

revision. 

G. Regulatory and Legal History of the 

North Dakota Regional Haze State 

Implementation Plan 

The Governor of North Dakota 

originally submitted a Regional Haze 

SIP to 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’’). The State’s 2010 Regional Haze 

SIP was submitted to meet the 

requirements of the regional haze 

program for the first regional haze 

planning period. Among other things, 

the 2010 Regional Haze SIP included 

North Dakota’s determination under the 

reasonable progress requirements found 

at 40 CFR 51.308(d)(1) that no 

additional nitrogen oxide (NOX) 

emissions controls were warranted at 

Antelope Valley Station Units 1 and 2. 

On April 6, 2012, 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).21 The 2012 

Final Rule approved in part and 

disapproved in part the 2010 Regional 

Haze SIP. As relevant here, EPA 

disapproved North Dakota’s reasonable 

progress determination that no 

additional NOX emissions controls were 

warranted at Antelope Valley Station. 

Concurrent with disapproving North 

Dakota’s NOX reasonable progress 

determination for Antelope Valley 

Station, EPA promulgated a FIP in the 

2012 Final Rule that imposed a NOX

reasonable progress emission limit of 

0.17 lb/MMBtu (30-day rolling average) 

each for Units 1 and 2 based on the 

emission reductions achievable through 

the installation and operation of new 

low-NOX burners and changes to the 

overfire air system. The FIP required 

Basin Electric Power Cooperative, the 

owner of Antelope Valley Station, to 

comply with the emission limit and 

related monitoring, record keeping, and 

reporting requirements as expeditiously 

as practicable, but no later than July 31, 

2018.22

Subsequently, several petitioners 

challenged various aspects of the 2012 

Final Rule in the United States Court of 

Appeals for the Eighth Circuit. Pertinent 

to this proposal, the State of North 

Dakota challenged EPA’s disapproval of 

the State’s reasonable progress 

determination that no additional NOX

emissions controls were warranted at 

Antelope Valley Station Units 1 and 2. 

The State also challenged EPA’s 

determination in its FIP that an 

emission limit of 0.17 lb/MMBtu (30- 

day rolling average) was necessary to 

satisfy the reasonable progress 

requirements. 

On September 23, 2013, the Eighth 

Circuit concluded that EPA properly 

disapproved portions of the 2010 

Regional Haze SIP, including the 

reasonable progress determination for 

Antelope Valley Station Units 1 and 2. 

The court also upheld EPA’s FIP 

promulgating an emission limit of 0.17 

lb/MMbtu (30-day rolling average) for 

Antelope Valley Station Units 1 and 2. 

However, the court vacated and 

remanded EPA’s FIP promulgating an 

emission limit of 0.13 lb/MMbtu (30-day 

rolling average) for Coal Creek Station, 

which is another coal-fired power plant 

located in North Dakota and was 

addressed in the 2010 Regional Haze 

SIP and the 2012 Final Rule.23

On August 3, 2020, North Dakota 

submitted Amendment No. 2 to the 

Regional Haze SIP, which incorporates 

the 2012 FIP requirements for Antelope 

Valley Station.24 Amendment No. 2 is 

the subject of this proposed action. 

Sections 110(a)(2) and 110(l) of the 

CAA, 40 CFR 51.102, and appendix V to 

part 51 require that a state provide 

reasonable notice and a public hearing 

before adopting a SIP revision and 

submitting it to EPA. North Dakota 

provided notice, held a public hearing 

on February 7, 2020, and accepted 

comments on Amendment No. 2 from 

December 17, 2019 through February 17, 

2020. 

II. EPA’s Evaluation of Amendment No. 

2 to the North Dakota Regional Haze 

State Implementation Plan 

A. Reasonable Progress Requirements 

for the Antelope Valley Station 

Antelope Valley Station Units 1 and 

2 are tangentially-fired boilers, each 

having a generating capacity of 435 

megawatts (MW). These boilers are not 

BART-eligible because they commenced 

operation in the 1980s, after the 15-year 

period specified in the CAA and the 

Regional Haze Rule. The boilers burn 

North Dakota lignite. In the 2010 

Regional Haze SIP, North Dakota 

identified Antelope Valley Station Units 

1 and 2 as sources that potentially affect 

visibility in Class I areas that should be 

evaluated for reasonable progress 

controls.25

The requirements of the 2012 FIP for 

Antelope Valley Station Units 1 and 2, 

including the emission limit of 0.17 lb/ 

MMBtu (30-day rolling average), and 

associated monitoring, recordkeeping, 

and reporting, are the same 

requirements incorporated into the 

State’s Permit to Construct number PTC 

14058 Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Proposed Rules 

26Amendment No. 2, Appendix D.6. 

27 76 FR 58630–32, 77 FR 20898–99. 

28Amendment No. 2, Appendix J.1.6. Note that 

North Dakota provided the opportunity for FLM 

consultation although it did not believe 

consultation was needed because the requirements 

of the SIP revision are the same as the FIP. 

29 77 FR 20894. 

30 80 FR 76211 (December 8, 2015). 

31North Dakota, 730 F.3d at 764. 

32 42 U.S.C. 7410(a)(2)(D)(i)(II). 33 77 FR 20896, 20899–900; see also 85 FR 20165, 

20177 (April 10, 2020) (regarding the status of 

North Dakota’s obligations under CAA section 

110(a)(2)(D)(i)(II) concerning visibility protection). 

34 42 U.S.C. 7410(l). 

35 76 FR 58630–32, 77 FR 20898–99. 

36See Current Nonattainment Counties for All 

Criteria Pollutants, https://www3.epa.gov/ 

airquality/greenbook/ancl.html (last visited Jan. 11, 

2021). 

37 40 CFR 52.1825. 

20031, which is part of Amendment No. 

2.26 Thus, for the same reasons we 

concluded in our 2012 Final Rule that 

this emission limit and the 

corresponding monitoring, 

recordkeeping, and reporting 

requirements are appropriate and 

reasonable under 40 CFR 51.308(d), we 

continue to find that they satisfy 

reasonable progress requirements for 

NOX for the first planning period at 

Antelope Valley Station.27 Accordingly, 

we propose to approve Amendment No. 

2. 

B. Consultation With Federal Land 

Managers 

As described in section I.E of this 

proposed rule, the Regional Haze Rule 

grants the FLMs a special role in the 

review of regional haze SIPs. Under 40 

CFR 51.308(i)(2), North Dakota was 

required to provide the FLMs with an 

opportunity for consultation in 

development of the State’s proposed SIP 

revision. By email correspondence on 

December 4, 2019, North Dakota 

provided the FLMs the opportunity to 

comment on Amendment No. 2.28 The 

National Park Service responded by 

email on January 6, 2020, indicating its 

intent to comment on the State’s review 

of control measures for Antelope Valley 

Station as part of the second regional 

haze planning period. No other FLMs 

commented. EPA proposes to find that 

North Dakota fulfilled its requirement to 

consult with the FLMs on the SIP 

revision. 

III. EPA’s Proposed Action 

A. Amendment No. 2 to the North 

Dakota Regional Haze State 

Implementation Plan 

We are proposing to approve the 

following elements of Amendment No. 

2 to the North Dakota Regional Haze 

SIP: 

• A NOX emission limit of 0.17 lb/ 

MMBtu (30-day rolling average) each for 

Antelope Valley Station Units 1 and 2 

with the emission limit to apply at all 

times including during periods of 

startup, shutdown, emergency, and 

malfunction. 

• The associated monitoring, 

recordkeeping, and reporting 

requirements for Antelope Valley 

Station Units 1 and 2. 

• Compliance with the emission limit 

and monitoring, recordkeeping, and 

reporting requirements in the SIP 

revision no later than when EPA 

finalizes this proposed action. 

• Related nonregulatory provisions as 

reflected in additions and changes to the 

2010 Regional Haze SIP in section 9.5.1 

(Antelope Valley Station), Appendix 

J.1.6 (FLM Comments on Amendment 

No. 2 and Department’s Response), and 

Appendix J.3.4 (U.S. Environmental 

Protection Agency Comments on 

Amendment No. 2 and Department’s 

Response). 

We are also proposing to restore 

certain other nonregulatory text 

amendments under 40 CFR 52.1820(e). 

The proposed amendments include 

incorporation of those previously 

approved in our 2012 Final Rule. EPA 

partially approved these provisions as 

meeting the requirements of the CAA 

and applicable regulations in previous 

actions; 29 however, we inadvertently 

deleted all approved provisions relevant 

to regional haze in 40 CFR 52.1820(e) 

when updating the paragraph in 2015.30

We are proposing to remedy that error 

here; however, in this proposed action, 

we are not otherwise addressing or 

reopening for comment any of the 

previously approved provisions. We 

will deem any comments on these 

provisions beyond the scope of this 

action. 

B. Federal Implementation Plan 

Withdrawal 

Because we are proposing to find that 

Amendment No. 2 satisfies the 

reasonable progress requirements for 

NOX at Antelope Valley Station Units 1 

and 2 for the first regional haze 

planning period, we are also proposing 

to withdraw the corresponding portions 

of the North Dakota Regional Haze FIP 

at 40 CFR 52.1825. 

In addition, EPA plans to remove 

from the Code of Federal Regulations 

the FIP requirements for Coal Creek 

Station that the Eighth Circuit vacated 

in the North Dakota decision.31 Because 

this is a purely ministerial action to 

ensure that the Code of Federal 

Regulations reflects current case law, we 

are not inviting public comment on our 

removal of the vacated language. Note 

that North Dakota’s BART obligation for 

Coal Creek Station remains outstanding. 

We are not proposing any other 

changes to our 2012 Final Rule because 

no other changes were addressed in 

Amendment No. 2 or required by the 

North Dakota decision. Accordingly, all 

other parts of our 2012 FIP, including 

our determinations regarding North 

Dakota’s reasonable progress goals, longterm strategy, and interstate transport 

obligations under CAA section 

110(a)(2)(D)(i)(II) concerning visibility 

protection,32 remain in place.33 We are 

not reopening or taking comment on 

these aspects of our 2012 Final Rule. We 

will deem any comments on these 

issues beyond the scope of this action. 

C. Clean Air Section 110(l) 

Under CAA section 110(l), EPA 

cannot approve a plan revision ‘‘if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress (as defined in section 7501 of 

this title), or any other applicable 

requirement of this chapter.’’ 34 The 

previous sections of this document and 

our 2011 proposed rule and 2012 Final 

Rule explain how the proposed SIP 

revision will comply with applicable 

regional haze requirements and general 

implementation plan requirements, 

such as enforceability.35 Additionally, 

there are no NAAQS nonattainment or 

maintenance areas in North Dakota.36

Approval of Amendment No. 2 would 

merely transfer the emission limit and 

associated monitoring, recordkeeping, 

and reporting requirements for Antelope 

Valley Station Units 1 and 2 currently 

found in EPA’s 2012 FIP 37 into North 

Dakota’s Regional Haze SIP. Thus, there 

will be no change in air quality 

requirements or to actual emissions 

from the Antelope Valley Station. As 

such, the SIP revision will not interfere 

with attainment of the NAAQS, 

reasonable further progress, or other 

CAA requirements. Accordingly, we 

propose to find that an approval of 

Amendment No. 2 and concurrent 

withdrawal of the corresponding FIP, 

are not anticipated to interfere with 

applicable requirements of the CAA and 

therefore CAA section 110(l) does not 

prohibit approval of this SIP revision. 

IV. Incorporation by Reference 

In this rule, EPA is proposing to 

include, in a final EPA rule, regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, EPA is 

proposing to incorporate by reference 

the amendments described in sections II 

Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Proposed Rules 14059 

38 58 FR 51735, 51738 (October 4, 1993). 

39 44 U.S.C. 3501 et seq. 

40 5 CFR 1320.3(c) (emphasis added). 

41Adjusted to 2019 dollars, the UMRA threshold 

becomes $164 million. 

42 64 FR 43255, 43255–43257 (August 10, 1999). 

43 64 FR 43255, 43257. 

44 Id. 

and III. EPA has made, and will 

continue to make, these materials 

generally available through 

www.regulations.gov and at the EPA 

Region 8 Office (please contact the 

person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 38 and was 

therefore not submitted to the Office of 

Management and Budget (OMB) for 

review. This proposed rule applies to 

only a single facility in North Dakota: 

Antelope Valley Station. It is therefore 

not a rule of general applicability. 

B. Executive Order 13771: Reducing 

Regulations and Controlling Regulatory 

Costs 

This action is not an Executive Order 

13771 regulatory action because this 

action is not significant under Executive 

Order 12866. 

C. Paperwork Reduction Act 

This proposed action does not impose 

an information collection burden under 

the provisions of the Paperwork 

Reduction Act (PRA).39 A ‘‘collection of 

information’’ under the PRA means ‘‘the 

obtaining, causing to be obtained, 

soliciting, or requiring the disclosure to 

an agency, third parties or the public of 

information by or for an agency by 

means of identical questions posed to, 

or identical reporting, recordkeeping, or 

disclosure requirements imposed on, 

ten or more persons, whether such 

collection of information is mandatory, 

voluntary, or required to obtain or retain 

a benefit.’’ 40 Because this proposed rule 

revises regional haze requirements 

reporting requirements for a single 

facility, the PRA does not apply. 

D. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this proposed rule on small entities, 

small entity is defined as: (1) A small 

business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this proposed rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities 

under the RFA. This proposed rule does 

not impose any requirements or create 

impacts on small entities as no small 

entities are subject to the requirements 

of this proposed rule. 

E. Unfunded Mandates Reform Act 

(UMRA) 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

federal agencies to assess the effects of 

their regulatory actions on state, local 

and tribal governments and the private 

sector. Under section 202 of UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for final rules with ‘‘Federal 

mandates’’ that may result in 

expenditures to state, local, and tribal 

governments, in the aggregate, or to the 

private sector, of $100 million or more 

(adjusted for inflation) in any one year. 

Before promulgating an EPA rule for 

which a written statement is needed, 

section 205 of UMRA generally requires 

EPA to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective, or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 of UMRA do not apply when they 

are inconsistent with applicable law. 

Moreover, section 205 of UMRA allows 

EPA to adopt an alternative other than 

the least costly, most cost-effective, or 

least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

actions with significant federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

Under Title II of UMRA, EPA has 

determined that this proposed rule does 

not contain a federal mandate that may 

result in expenditures that exceed the 

inflation-adjusted UMRA threshold of 

$100 million 41 by state, local, or tribal 

governments or the private sector in any 

one year. The proposed approval of 

Amendment No. 2, and simultaneous 

withdraw of corresponding portions of 

our FIP, would not result in private 

sector expenditures. Additionally, we 

do not foresee significant costs (if any) 

for state and local governments. Thus, 

this proposed rule is not subject to the 

requirements of sections 202 or 205 of 

UMRA. This proposed rule is also not 

subject to the requirements of section 

203 of UMRA because it contains no 

regulatory requirements that might 

significantly or uniquely affect small 

governments. 

F. Executive Order 13132: Federalism 

Executive Order 13132, Federalism,42

revokes and replaces Executive Orders 

12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

requires EPA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have federalism 

implications.’’ 43 ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 44 Under 

Executive Order 13132, EPA may not 

issue a regulation ‘‘that has federalism 

implications, that imposes substantial 

direct compliance costs, . . . and that is 

not required by statute, unless [the 

Federal Government provides the] funds 

necessary to pay the direct [compliance] 

costs incurred by the State and local 

governments,’’ or EPA consults with 

state and local officials early in the 

14060 Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Proposed Rules 

45 Id. 

46 65 FR 67249, 67250 (November 9, 2000). 47 59 FR 7629 (February 16, 1994). 48 77 FR 20941 (April 6, 2012). 

process of developing the final 

regulation.45 EPA also may not issue a 

regulation that has federalism 

implications and that preempts state 

law unless the agency consults with 

state and local officials early in the 

process of developing the final 

regulation. 

This action does not have federalism 

implications. The proposed rule will not 

have substantial direct effects on the 

states, on the relationship between the 

national government and the states, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. Thus, Executive 

Order 13132 does not apply to this 

action. 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments,’’ requires 

EPA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ 46 This proposed rule 

does not have tribal implications, as 

specified in Executive Order 13175. It 

will not have substantial direct effects 

on tribal governments. Thus, Executive 

Order 13175 does not apply to this rule. 

H. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045 (62 FR 19885, April 23, 

1997). EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

executive order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

I. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

J. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 requires federal 

agencies to evaluate existing technical 

standards when developing a new 

regulation. Section 12(d) of NTTAA, 

Public Law 104–113, 12(d) (15 U.S.C. 

272 note) directs EPA to consider and 

use ‘‘voluntary consensus standards’’ in 

its regulatory activities unless to do so 

would be inconsistent with applicable 

law or otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. NTTAA directs EPA 

to provide Congress, through OMB, 

explanations when the agency decides 

not to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

K. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898, establishes 

federal executive policy on 

environmental justice.47 Its main 

provision directs federal agencies, to the 

greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies and activities on minority 

populations and low-income 

populations in the United States. 

In 2012, we determined that our final 

action would ‘‘not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it increased the level of 

environmental protection for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population.’’ 48

Because this proposed rule does not 

alter requirements for Antelope Valley 

Station, and only transfers them from 

the FIP to the SIP, our determination is 

unchanged from that in 2012. EPA, 

however, will consider any input 

received during the public comment 

period regarding environmental justice 

considerations. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Sulfur oxides. 

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

Dated: February 25, 2021. 

Debra H. Thomas, 

Acting Regional Administrator, Region 8. 

40 CFR part 52 is proposed to be 

amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart JJ—North Dakota 

■ 2. In § 52.1820: 

■ a. The table in paragraph (d) is 

amended by adding the center heading 

‘‘Antelope Valley Station Units 1 and 

2.’’ and the entry ‘‘PTC20031’’ at the 

end of the table; 

■ b. The table in paragraph (e) is 

amended by adding the center heading 

‘‘North Dakota State Implementation 

Plan for Regional Haze.’’ and the entry 

‘‘North Dakota State Implementation 

Plan for Regional Haze’’ at the end of 

the table. 

The additions read as follows: 

§ 52.1820 Identification of plan. 

* * * * * 

(d) * * * 

Federal Register / Vol. 86, No. 47 / Friday, March 12, 2021 / Proposed Rules 14061 

Rule No. Rule title State effective date EPA effective date Final rule 

citation/date Comments 

*******

Antelope Valley Station Units 1 and 2 

PTC20031 .... Air pollution control permit 

to construct for Federal 

Implementation Plan Replacement.

[Date of publication of the 

final rule in the Federal 

Register].

[Date 30 days after date of 

publication of the final 

rule in the Federal Register].

[Federal Register citation 

of the final rule], [Date of 

publication of the final 

rule in the Federal Register].

Only: NOX BART emission 

limit for Units 1 and 2 

and corresponding monitoring, recordkeeping, 

and reporting requirements. 

(e) * * * 

Rule No. Rule title 

State 

effective 

date 

EPA effective date Final rule 

citation/date Comments 

*******

North Dakota State Implementation Plan for Regional Haze 

North Dakota State Implementation Plan for Regional Haze.North Dakota State Implementation Plan for Regional Haze.7/8/20 [Date 30 days after date of 

publication of the final 

rule in the Federal Register].

[Federal Register citation 

of the final rule], [Date of 

publication of the final 

rule in the Federal Register].

Excluding provisions disapproved on April 6, 

2012, 77 FR 20894. 

§ 52.1825 [Removed and Reserved] 

■ 3. Remove and reserve § 52.1825. 

[FR Doc. 2021–04402 Filed 3–11–21; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2020–0468; FRL–10021– 

22–Region 5] 

Air Plan Approval; Ohio; Lead 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

revisions to the Ohio State 

Implementation Plan (SIP). Ohio 

removed its Ohio Administrative Code 

(OAC) rules that apply to a secondary 

lead smelter, which has permanently 

shut down. EPA is proposing approval 

of revisions that will remove those OAC 

rules from the Ohio SIP. The revisions 

will also remove air quality sampling 

requirements that are duplicative of 

another OAC provision in the Ohio SIP. 

DATES: Comments must be received on 

or before April 12, 2021. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2020–0468 at http://

www.regulations.gov, or via email to 

blakley.pamela@epa.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. For either manner of 

submission, EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, please contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section. For the 

full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: Matt 

Rau, Environmental Engineer, Control 

Strategies Section, Air Programs Branch 

(AR–18J), Environmental Protection 

Agency, Region 5, 77 West Jackson 

Boulevard, Chicago, Illinois 60604, 

(312) 886–6524, rau.matthew@epa.gov. 

The EPA Region 5 office is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays and 

facility closures due to COVID–19. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

I. Background 

Ohio identified the Master Metals, 

Incorporated Facility (Master Metals), a 

former secondary lead smelter in 

Cleveland, Ohio, as the primary cause of 

high monitored lead concentrations in 

Cuyahoga County. On October 14, 1992, 

Ohio issued an order to Master Metals 

requiring the facility to shut down 

unless specific improvements were 

made to the facility’s pollution controls. 

On August 5, 1993, Ohio ordered an 

immediate shut down of the Master 

Metals facility and prohibited any 

activities to be conducted at the facility 

until required improvements were 

made. The facility did not reopen. 

Effective August 26, 2011, Ohio 

rescinded OAC rules 3745–71–05 and 

3745–71–06, as part of a 5-year review 

of its rules. OAC 3745–71–06, ‘‘Source 

specific emission limits,’’ contained the 

lead and particulate matter emission 

limits plus operational limits only 

applicable to Master Metals. OAC 3745– 

71–05, ‘‘Emissions test methods and 

procedures and reporting requirements 

for new and existing sources,’’ provided 

the test methods and other elements 

supporting OAC 3745–71–06. Ohio 

determined that these rules should be 

rescinded because they were facilityspecific to Master Metals, which no