```

[Federal Register Volume 89, Number 231 (Monday, December 2, 2024)]
[Rules and Regulations]
[Pages 95126-95131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27940]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2023-0495; FRL-12052-02-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: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is partially 
approving and partially disapproving a regional haze state 
implementation plan (SIP) revision submitted by the State of North 
Dakota on August 11, 2022 (North Dakota's 2022 SIP submission) to 
address applicable requirements under the Clean Air Act (CAA) and the 
EPA's Regional Haze Rule (RHR) for the regional haze program's second 
implementation period. The EPA is taking this action pursuant to the 
CAA.

DATES: This rule is effective January 2, 2025.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2023-0495. All documents in the docket are 
listed on the https://www.regulations.gov website. 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, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available through https://www.regulations.gov, or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: 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 ``we,'' ``us,'' and 
``our'' means the EPA.

Table of Contents

I. What is being addressed in this document?
II. Summary of the Proposed Action, Public Comments, and the EPA's 
Reasons for Final Action
III. Final Action
IV. Statutory and Executive Order Reviews

I. What is being addressed in this document?

    The EPA is partially approving and partially disapproving North 
Dakota's regional haze plan for the second planning period.\1\ As 
required by section 169A of the CAA, the RHR calls for State and 
Federal agencies to work together to improve visibility in 156 national 
parks and wilderness areas, known as mandatory Class I Federal 
areas.\2\ The rule requires the States, in coordination with the EPA, 
the National Park Service, the Fish and Wildlife Service, the Forest 
Service, and other interested parties, to develop and

[[Page 95127]]

implement air quality protection plans to reduce the pollution that 
causes visibility impairment in mandatory Class I Federal areas. 
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), oxides of nitrogen (NOX), and, in some 
cases, volatile organic compounds (VOC) and ammonia (NH3)). 
As discussed in further detail in our proposed rule, in this document, 
and in the accompanying Response to Comments (RTC) document, the EPA 
finds that North Dakota submitted a regional haze SIP that does not 
meet all the statutory and regulatory requirements for the regional 
haze second planning period. The State's submission, the proposed rule, 
and the RTC document can be found in the docket for this action.
---------------------------------------------------------------------------

    \1\ The EPA uses the terms ``implementation period'' and 
``planning period'' interchangeably.
    \2\ See 40 CFR part 81, subpart D.
---------------------------------------------------------------------------

II. Summary of the Proposed Action, Public Comments, and the EPA's 
Reasons for Final Action

    On August 11, 2022, North Dakota submitted a revision to its SIP to 
address regional haze for the second implementation period, in 
accordance with the requirements of the CAA's regional haze program 
established by CAA sections 169A and 169B and 40 CFR 51.308.
    On July 10, 2024, the EPA proposed to disapprove certain provisions 
of North Dakota's 2022 SIP submission.\3\ Specifically, we proposed to 
disapprove the portions of North Dakota's 2022 SIP submission relating 
to 40 CFR 51.308(f)(2): long-term strategy; 40 CFR 51.308(f)(3): 
reasonable progress goals; and 40 CFR 51.308(i): Federal Land Manager 
(FLM) consultation. We also proposed 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 (URP); 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. 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. Our public comment period closed on 
August 9, 2024. Our July 10, 2024, proposed rule provided background on 
the requirements of the CAA and RHR, a summary of North Dakota's 
regional haze SIP submittals and related EPA actions, and the EPA's 
rationale for its proposed action. That background and rationale will 
not be restated in full here, although we briefly summarize the reasons 
for our partial disapproval of North Dakota's 2022 SIP submission in 
the paragraphs that follow.
---------------------------------------------------------------------------

    \3\ 89 FR 56693 (July 10, 2024).
---------------------------------------------------------------------------

    In CAA section 169A(a)(1), Congress established the national goal 
of preventing any future and remedying any existing impairment of 
visibility in mandatory Class I Federal areas that results from manmade 
(anthropogenic) air pollution. The core component of a regional haze 
SIP submission for the second implementation period is a long-term 
strategy for making reasonable progress toward meeting that national 
goal. CAA section 169A(b)(2)(B), 40 CFR 51.308(f)(2). A state's long-
term strategy must address regional haze in each Class I area within 
the state's borders and each Class I area outside the state that may be 
affected by emissions originating from within the state. It ``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)--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 \4\--in an evaluation 
of potential control measures for sources of visibility impairing 
pollutants, which is referred to as a ``four-factor'' analysis. In 
developing its long-term strategy, the state must document the 
technical basis, including modeling, monitoring, cost, engineering, and 
emissions information, on which it is relying to determine the measures 
that are necessary to make reasonable progress. 40 CFR 
51.308(f)(2)(iii).
---------------------------------------------------------------------------

    \4\ CAA section 169A(g)(1); 40 CFR 51.308(f)(2)(i).
---------------------------------------------------------------------------

    As detailed in section 3.A. of the RTC document, the CAA authorizes 
the EPA to substantively review states' SIP submissions for compliance 
with the statute and EPA's regulations to ensure progress towards the 
national visibility goal for Class I areas. Congress charged the EPA 
with exercising ``federal oversight'' over SIP submissions and 
``review[ing] all SIPs to ensure that the plans comply with the 
statute.'' Oklahoma v. EPA, 723 F.3d 1201, 1204 (10th Cir. 2013); see 
also id. at 1207-08 (citing CAA Sections 110(l), 110(a)(2)(J), and 
169A(b)(2)). The ``EPA is left with more than the ministerial task of 
routinely approving SIP submissions.'' North Dakota v. EPA, 730 F.3d 
750, 761 (8th Cir. 2013). Instead, the Agency's ``review of a SIP 
extends not only to whether the state considered the necessary factors 
in its determination, but also to whether the determination is one that 
is reasonably moored to the CAA's provisions'' and is ``based on 
`reasoned analysis.' '' Id. at 761, 766 (citing Alaska Dep't of Envt. 
Conservation v. EPA, 540 U.S. 461 (2004)); see also Wyoming v. EPA, 78 
F.4th 1171, 1180-81 (10th Cir. 2023) (noting that ``the Act provides 
for substantive and careful EPA review'' of SIP submissions and that 
``the EPA does not have to accept unreasonable analyses''). For the 
reasons stated in the proposed rule, this document, and in the RTC 
document, the EPA concludes that North Dakota's 2022 SIP submission 
does not meet all the requirements of the CAA and RHR.
    As detailed at length in our proposed rule and in the RTC document, 
we conclude that North Dakota's long-term strategy does not meet the 
requirements of CAA section 169A(b)(2) and 40 CFR 51.308(f)(2) on two 
independent grounds. First, North Dakota relied on the URP status of 
in-state Class I areas and a visibility improvement threshold that is 
inconsistent with the purpose of the CAA's visibility program to 
unreasonably reject feasible and reasonably inexpensive controls it 
evaluated under the four statutory factors at Coyote Station and 
Antelope Valley. Second, North Dakota failed to consider the four 
statutory factors for NOX at Coal Creek and unreasonably 
rejected feasible and reasonably inexpensive controls it evaluated 
under the four statutory factors at Coal Creek and Leland Olds. 
Likewise, North Dakota did not meet the requirements of 40 CFR 
51.308(f)(3) because the deficiencies in its long-term strategy 
prevented the State from developing adequate reasonable progress goals 
(RPGs). Additionally, we are disapproving North Dakota's FLM 
consultation under 40 CFR 51.308(i) because compliance with that 
requirement is dependent on fulfilling the substantive requirements of 
40 CFR 51.308(f)(2) (long-term strategy).
    During the public notice and comment period, we received 31 
comments on our proposal. The full text of comments received is 
included in the publicly posted docket associated with this action at 
https://www.regulations.gov. Our RTC

[[Page 95128]]

document, which is also included in the docket associated with this 
action, provides detailed responses to all significant comments 
received.\5\ Our RTC document is organized by topic. Therefore, if 
additional information is desired concerning how we addressed a 
particular comment, the reader should refer to the appropriate section 
in the RTC document.
---------------------------------------------------------------------------

    \5\ Some commenter tables and figures are excluded from this 
document.
---------------------------------------------------------------------------

    We received several comments on our proposed disapproval of North 
Dakota's long-term strategy on the basis that North Dakota unreasonably 
considered visibility benefits to reject technically feasible and 
reasonably inexpensive controls based on an unreasonable interpretation 
of CAA 169A to select its visibility improvement threshold that 
essentially nullified the CAA 169A(g)(1) statutory factors. Below, we 
provide a summary and response to this issue including North Dakota's 
interpretation that a change of RPG of 1.0 deciview (dv) visibility 
improvement (a change in visibility impairment visible to the naked 
eye) is needed to necessitate additional controls to make ``reasonable 
progress.'' This is inconsistent with the plain language and Congress' 
explicitly stated national purpose of the CAA's visibility provisions.
    In North Dakota's SIP, North Dakota determined that because its 
visibility improvement analysis showed no ``significant'' change in 
visibility after installation of potential controls, it would not be 
reasonable to require any additional controls to make reasonable 
progress for Coyote Station and Antelope Valley. We proposed 
disapproval due to North Dakota's reliance on visibility considerations 
to reject cost-effect controls at Coyote Station and Antelope Valley. 
Commenters concluded that this meant the EPA was either prohibiting the 
State from considering visibility in the four-factor analysis or that 
we ignored North Dakota's visibility analysis. This is incorrect. The 
CAA's cooperative federalism framework imposes on EPA a substantive 
role in determining if a SIP is approvable. See our RTC section 3.A 
Cooperative Federalism and State Discretion for a detailed explanation. 
In particular, any approvable regional haze SIP must be consistent with 
Congress' explicit statutory declaration of the ``national goal'' for 
``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.'' Additionally, in 
determining reasonable progress, states must ``consider 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.'' \6\
---------------------------------------------------------------------------

    \6\ CAA section 169A(a)(1), (g)(1).
---------------------------------------------------------------------------

    The EPA has acknowledged that a state may reasonably consider 
factors beyond the explicit four CAA section 169A(g)(1) factors, such 
as visibility, when assessing sources or source categories. In a 
response to comment on the 2017 RHR, EPA noted that a state that elects 
to consider an additional factor, such as visibility, must do so in a 
reasonable way that does not undermine or nullify the role of the four 
statutory factors.\7\
---------------------------------------------------------------------------

    \7\ EPA, Response to Comments on Protection of Visibility: 
Amendments to Requirements for State Plans; Proposed Rule, December 
2016, at 186 (available in the docket for this action).
---------------------------------------------------------------------------

    As this response to comment indicates, the consideration of any 
non-statutory factor, including visibility, must be reasonable. See, 
e.g., North Dakota, 730 F.3d at 766 (``EPA's review of a SIP extends 
not only to whether the state considered the necessary factors in its 
determination, but also to whether the determination is one that is 
reasonably moored to the CAA's provisions.''). The reasonableness of a 
state's visibility consideration in the four-factor analysis turns on 
whether the determination is reasonably moored to the CAA visibility 
provisions and how the state explained and supported its determination 
in the record.
    Here, we find that North Dakota's consideration of visibility in 
its four-factor analysis is unreasonable and inconsistent with the CAA 
and the RHR. Specifically, North Dakota rejected technically feasible 
and reasonably inexpensive controls at Coyote Station and Antelope 
Valley based on its unreasonable visibility improvement threshold in 
considering visibility as part of the four-factor analysis.\8\ In its 
SIP, North Dakota determined that no additional controls are required 
for Coyote Station and Antelope Valley due to ``insignificant'' 
visibility improvement when looking at the change in the RPG for a 
Class I area (Lostwood and Theodore Roosevelt) from the addition of 
potential controls. This determination was based on an interpretation 
that CAA section 169A requires a change in RPG of 1.0 dv improvement 
from the addition of controls at a single Class I area before that 
control is required to make ``reasonable progress.'' However, this 
interpretation is unreasonable and inconsistent with the CAA.
---------------------------------------------------------------------------

    \8\ 40 CFR 51.308(f)(2)(i).
---------------------------------------------------------------------------

    Congress mandated the national goal of remedying of existing and 
preventing future visibility impairment air pollution from 
anthropogenic sources.\9\ In American Corn Growers Ass'n v. EPA, 291 
F.3d 1 (D.C. Cir. 2002), the D.C. Circuit stated that ``[t]he statutory 
goal enunciated in Sec.  169A(a)(1) is quite clear: `the prevention of 
any future, and the remedying of any existing, impairment of 
visibility.' . . . [Therefore, agency] regulations that aim to remedy 
any existing impairment of visibility and prevent any future 
impairment--as the statute commands--will of necessity aim to achieve a 
state of natural visibility. There is no material inconsistency between 
the statutory and regulatory goals, for the latter merely elucidates 
the former.'' Id. at 10. Therefore, as outlined throughout our proposal 
and this final document, the EPA is within its authority to disapprove 
North Dakota's long-term strategy for not including the necessary 
measures. Specifically, North Dakota's consideration of visibility 
requiring a change in RPG of 1.0 dv improvement at a single Class I 
area to necessitate the imposition of additional controls under 
reasonable progress effectively undermines and nullifies the 
Congressionally mandated national goal and the reasonable progress 
four-factor analysis requirements enumerated in CAA sections 169A(a)(1) 
and (g)(1). There are 56,025 anthropogenic industrial sources (electric 
generating units (EGU), oil and gas, and other industrial point (non-
EGU) sources) in the United States that contribute to Lostwood, which 
is the closest Class I area to the sources evaluated by North 
Dakota.\10\ North Dakota rejected feasible and reasonably inexpensive 
($400/ton-$1,800/ton) controls at Coyote Station and Antelope Valley 
under two control scenarios due to asserted non-visible and therefore 
ostensibly ``insignificant'' visibility improvement (less than 1.0 dv 
change in RPG visibility improvement) at a Class I area for the second 
planning period. However, North Dakota's analysis showed that both 
potential control scenarios were feasible and reasonably inexpensive 
and resulted in either a 10% or 25% greater visibility improvement than 
existing on-the-books controls for this planning period at Lostwood.
---------------------------------------------------------------------------

    \9\ CAA section 169A(a)(1).
    \10\ Censara AOI spreadsheet titled ``Appendix C-1_AOI2016EI-
tool.xlsx.''
---------------------------------------------------------------------------

    In particular, North Dakota's visibility improvement analysis 
projected visibility improvement from existing

[[Page 95129]]

controls in North Dakota to be 0.4 dv at Lostwood for this 10-year 
planning period. North Dakota considered two modeling runs to assess 
visibility impact of controls: Potential Additional Control Scenario 1 
(``PAC1:'' Replacement of the SO2 absorber at $1,800/ton and 
installation of SNCR for NOX at $1,700/ton at Coyote Station 
as well as increasing the stoichiometric ratio on existing FGD for 
SO2 emission reductions at $700/ton at Antelope Valley) and 
Potential Additional Control Scenario 2 (``PAC2:'' FGD modification for 
SO2 emission reductions ($400/ton) at Coyote Station). Based 
on North Dakota's analysis, PAC1 showed an additional 0.1 dv visibility 
improvement at Lostwood, with control costs ranging from $700/ton-
$1,700/ton, resulting in a projected 25% visibility improvement at 
Lostwood for this planning period. Under PAC2, North Dakota's SIP 
showed an additional 0.04 dv projected visibility improvement at $400/
ton, which would result in a projected 10% visibility improvement at 
Lostwood for this planning period. North Dakota rejected both control 
scenarios due to their lack of ``significant'' visibility improvement 
or change in RPG.
    In response to comments on our 2017 RHR, we reemphasized that 
achieving reasonable progress will depend upon obtaining aggregate 
reductions from possibly thousands of sources, and thus, rejecting a 
control measure because its effect on the RPG is subjectively assessed 
as ``not meaningful'' when that control is identified as feasible and 
relatively inexpensive under the four statutory factors would be 
inappropriate. We stated:
    The commenter's second suggestion, that states should be able to 
reject ``costly'' control measures if the RPG for the most impaired 
days is not ``meaningfully'' different than current visibility 
conditions, is counterintuitive and at odds with the purpose of the 
visibility program. In this situation, the state should take a second 
look to see whether more effective controls or additional measures are 
available and reasonable. Whether the state takes this second look or 
not, it may not abandon the controls it has already determined are 
reasonable based on the four factors. 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.'' Also, for Class 
I areas where visibility conditions are considerably worse than natural 
conditions because of continuing anthropogenic impairment from numerous 
sources, the logarithmic nature of the deciview index makes the effect 
of a control measure on the value of the RPG less than its effect would 
be if visibility conditions at the Class I area were better. Thus, if a 
state could reject a control measure based on its individual effect on 
the RPG, the state would be more likely to reject those measures that 
are necessary to make reasonable progress at the dirtiest Class I 
areas, which would thwart Congress' national goal (82 FR 3078, 3093; 
Jan. 10, 2017).
    North Dakota's approach in considering visibility under the four-
factor analysis effectively undermines and nullifies Congressional 
intent, since there is no scenario for this or subsequent planning 
periods under which controls to improve visibility would ever be 
required under the CAA visibility program, no matter how low the cost 
since no one source impairs visibility at a single Class I area (e.g. 
Lostwood and Theodore Roosevelt National Park) above 1.0 dv. This 
conflicts with the CAA's stated national visibility goal of elimination 
of impairment from manmade sources and thus, North Dakota's 
consideration of visibility is improper. Specifically, North Dakota's 
determination to reject feasible and reasonably inexpensive controls at 
Coyote Station and Antelope Valley was improper. North Dakota's own 
analysis shows significant visibility improvement from additional 
controls at Coyote Station and Antelope Valley compared against the 
visibility improvement from all sources that contribute to visibility 
impairment at Lostwood and/or Theodore Roosevelt National Park during 
this planning period.
    To explore this point further, the EPA included in the docket to 
this action a Technical Appendix, which examines, using Western 
Regional Air Partnership (WRAP) data, the total anthropogenic nitrate 
and sulfate visibility-impairment impacts on North Dakota Class I areas 
from the EGU sector in North Dakota. As shown in the Technical 
Appendix, North Dakota's EGU sources contribute ~22% (a significant 
portion) of the total anthropogenic impairment (nitrate and sulfate 
combined) on most-impaired days from all sources in the United States 
at Lostwood Wilderness Area. When compared to natural conditions, this 
translates to 0.92 dv.\11\ North Dakota's EGU sources contribute ~14% 
(a significant portion) of the total anthropogenic impairment (nitrate 
and sulfate combined) from all sources in the United States at Theodore 
Roosevelt National Park. When compared to natural conditions, this 
translates to 0.26 dv.\12\ These numbers demonstrate the 
unreasonableness of North Dakota's position that controls must produce 
a perceptible impact to a Class I area RPG, or larger than 1.0 dv, to 
be necessary for reasonable progress. The EPA acknowledges the 
significant impact of the North Dakota EGU sector on visibility 
impairment at Lostwood Wilderness Area \13\ and Theodore Roosevelt 
National Park,\14\ despite these impacts amounting to less than a 1.0 
dv impact on the RPG at each Class I area. Thus, North Dakota's 
threshold for determining whether visibility improvement on a Class I 
area RPG necessitates new controls plainly serves to nullify the result 
of a four-factor analysis, especially given the low cost of controls 
rejected at Antelope Valley and Coyote Station.
---------------------------------------------------------------------------

    \11\ See the EPA's Technical Appendix in the docket associated 
with this action.
    \12\ Id.
    \13\ North Dakota's EGU sources contribute ~22% (a significant 
portion) of the total anthropogenic impairment (nitrate and sulfate 
combined) on most-impaired days from all sources in the United 
States at Lostwood Wilderness Area. See Technical Appendix.
    \14\ North Dakota's EGU sources contribute ~14% (a significant 
portion) of the total anthropogenic impairment (nitrate and sulfate 
combined) from all sources in the United States at Theodore 
Roosevelt National Park. See Technical Appendix.
---------------------------------------------------------------------------

    Furthermore, as we have noted previously, regional haze is caused 
by hundreds or thousands of individual sources and very few remaining 
sources (or even none of them) will individually have impacts as large 
as a threshold that might be considered a ``perceptible'' or 
``meaningful'' impact. However, these sources still contribute to 
visibility impairment and have a meaningful impact in the 
aggregate.\15\ Under the CAA and the RHR, each state that impacts a 
Class I area must consider the four statutory factors to determine 
whether additional measures are necessary for reasonable progress. 
Based on the WRAP data evaluated in the proposed rule, in the Technical 
Appendix, and in the RTC document, North Dakota has significant impacts 
on both in-state and out-of-state Class I areas,\16\ which is one of 
the bases to consider additional measures. In its analysis of 
additional measures, North Dakota showed that, compared to

[[Page 95130]]

natural conditions, the controls rejected at Antelope Valley and Coyote 
Station would result in a 0.29 dv reduction at Lostwood Wilderness 
Area,\17\ the highest-impacted Class I area from ND sources. Comparing 
this to the total impairment resulting from North Dakota EGUs at 
Lostwood Wilderness Area, the controls North Dakota rejected at 
Antelope Valley and Coyote Station would result in a ~32% reduction in 
visibility impairment from North Dakota's EGU sector.\18\ Given that 
North Dakota is by far the largest contributor to impairment at 
Lostwood Wilderness Area,\19\ the EPA finds the reduction in visibility 
impairment associated with these controls to be significant. In its 
analysis of additional measures, North Dakota also showed that, 
compared to natural conditions, the feasible and reasonably inexpensive 
controls rejected at Antelope Valley and Coyote Station would result in 
a 0.17 dv reduction in impairment at Theodore Roosevelt National 
Park.\20\ Comparing this to the total impairment resulting from North 
Dakota EGUs at Theodore Roosevelt National Park, the controls North 
Dakota rejected at Antelope Valley and Coyote Station would result in a 
~65% reduction in visibility impairment from North Dakota's EGU 
sector.\21\ Given that North Dakota is by far the largest contributor 
to impairment at Theodore Roosevelt National Park,\22\ the EPA finds 
that the reduction in visibility impairment associated with 
installation of these controls would be significant.
---------------------------------------------------------------------------

    \15\ 82 FR at 3093 (January 10, 2017).
    \16\ 89 FR 56693, 56707-09 (July 10, 2024).
    \17\ North Dakota's 2022 SIP Submission, appendix D.5-23.
    \18\ 0.29/0.92 = ~0.32 or a 32% reduction in impairment.
    \19\ See the EPA's Technical Appendix in the docket associated 
with this action.
    \20\ North Dakota's 2022 SIP Submission, appendix D.5-23.
    \21\ 0.17/0.26 = ~0.65 or a 65% reduction in impairment.
    \22\ See the EPA's Technical Appendix in the docket associated 
with this action.
---------------------------------------------------------------------------

    In addition, North Dakota's consideration of visibility included 
various technical flaws that individually, as well as collectively, 
underrepresented the actual visibility improvement that might be 
achieved from the addition of controls at Coyote Station and Antelope 
Valley. As more fully explained in the RTC document, these technical 
flaws \23\ result in an overall underestimate of the potential 
visibility improvement that could be achieved by the imposition of 
controls selected through the consideration of the four reasonable 
progress factors set forth in CAA section 169A(g)(1) on which North 
Dakota based its determination. If those errors are corrected, the 
imposition of controls under either scenario at Coyote Station and/or 
Antelope Valley would be greater than the anticipated 10-25% visibility 
improvement from existing controls.
---------------------------------------------------------------------------

    \23\ As detailed in the RTC document, the technical flaws in 
North Dakota's visibility improvement analysis included the 
comparison to a dirty background rather than natural conditions 
(North Dakota then provided updated numbers comparing to natural 
conditions in response to comment on the draft plan) and using the 
20% most-impaired days rather than all days to assess impacts from 
individual sources. In addition, North Dakota did not consider the 
visibility benefits to out-of-state Class I areas when controls at 
Antelope Valley and Coyote Station also benefit those Class I areas 
identified by North Dakota under CAA 169A(b)(2).
---------------------------------------------------------------------------

    As described in this preamble and in the RTC document, North 
Dakota's consideration of visibility, namely, its selection and 
application of a 1.0 dv visibility improvement threshold to reject 
feasible and reasonably inexpensive controls for reasonable progress at 
Antelope Valley and Coyote Station, undermines and nullifies the 
results of the four-factor analyses performed by North Dakota. This is 
unreasonable and inconsistent with the CAA and the RHR. Thus, EPA is 
required to disapprove North Dakota's long-term strategy, as well as 
the associated reasonable progress goals and FLM consultation.

III. Final Action

    For the reasons stated in the proposed rule, in the RTC document, 
and in this document, we are partially approving and partially 
disapproving North Dakota's 2022 SIP submission.
    We are disapproving the following components of North Dakota's 2022 
SIP submission relating to CAA section 169A:
     Long-term strategy (40 CFR 51.308(f)(2));
     Reasonable progress goals (40 CFR 51.308(f)(3)); and
     FLM consultation (40 CFR 51.308(i)).
    We are approving the following components of North Dakota's 2022 
SIP submission relating to CAA section 169A:
     Calculations of baseline, current, and natural visibility 
conditions, progress to date, and uniform rate of progress (40 CFR 
51.308(f)(1));
     Reasonably attributable visibility impairment (40 CFR 
51.308(f)(4));
     Progress report requirements (40 CFR 51.308(f)(5) and 40 
CFR 51.308(g)); and
     Monitoring strategy and other implementation plan 
requirements (40 CFR 51.308(f)(6)).

IV. 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 partially approves and partially disapproves 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 14094 (88 FR 21879, April 11, 2023);
     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 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); and
     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.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian Tribe has 
demonstrated that a Tribe has jurisdiction. In those areas of Indian 
country, the 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,

[[Page 95131]]

Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on communities with environmental justice 
(EJ) concerns to the greatest extent practicable and permitted by law. 
Executive Order 14096 (Revitalizing Our Nation's Commitment to 
Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on 
and supplements E.O. 12898 and defines EJ as, among other things, the 
just treatment and meaningful involvement of all people, regardless of 
income, race, color, national origin, or Tribal affiliation, or 
disability in agency decision-making and other Federal activities that 
affect human health and the environment.
    The State did not evaluate EJ considerations as part of its SIP 
submittal; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. EPA performed an EJ analysis, 
as is described in the proposed action 89 FR 56693 (July 10, 2024) in 
the section titled, ``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. In 
addition, there is no information in the record upon which this 
decision is based inconsistent with the stated goal of E.O. 12898/14096 
of achieving EJ for communities with EJ concerns.
    This action is subject to the Congressional Review Act, and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 31, 2025. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements (see section 307(b)(2)).

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.

    Dated: November 22, 2024.
KC Becker,
Regional Administrator, Region 8.

    For the reasons stated in the preamble, the Environmental 
Protection Agency is amending 40 CFR part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart JJ--North Dakota

0
2. In Sec.  52.1820, the table in paragraph (e) is amended by adding an 
entry for ``North Dakota State Implementation Plan for Regional Haze 
(Second Implementation Period)'' at the end of the table to read as 
follows:

Sec.  52.1820  Identification of plan.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        State        EPA  effective
               Rule No.                         Rule title         effective  date        date        Final rule citation/date          Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                North Dakota State Implementation Plan For Regional Haze
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
North Dakota State Implementation Plan  North Dakota State              8/10/2022         1/2/2025   [insert Federal Register   Excluding the sections
 for Regional Haze (Second               Implementation Plan for                                      citation], 12/2/2024       disapproved in this
 Implementation Period).                 Regional Haze                                                                           action. EPA disapproved
                                                                                                                                 the portions of North
                                                                                                                                 Dakota's 2022 SIP
                                                                                                                                 submission relating to
                                                                                                                                 CAA section 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.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 2024-27940 Filed 11-29-24; 8:45 am]
BILLING CODE 6560-50-P
```