Federal Register / Vol. 87, No. 65 / Tuesday, April 5, 2022 / Rules and Regulations 19635 

1 86 FR 14055 (March 12, 2021). 

* * * * * 

TABLE 2—EPA-APPROVED CALIFORNIA TEST PROCEDURES, TEST METHODS, AND SPECIFICATIONS

Title/subject 

State 

effective 

date 

EPA approval date Additional explanation 

*******

Certification Procedure CP–204 Certification Procedure for Vapor Recovery Systems of Cargo Tanks.4/1/2015 [INSERT Federal Register CITATION], 4/5/2022.Submitted on August 22, 2018 as 

an attachment to a letter dated 

August 16, 2018. 

Test Procedure TP–204.1 Determination of Five 

Minute Static Pressure Performance of Vapor Recovery Systems of Cargo Tanks.

4/1/2015 [INSERT Federal Register CITATION], 4/5/2022.Submitted on August 22, 2018 as 

an attachment to a letter dated 

August 16, 2018. 

Test Procedure TP–204.2 Determination of One 

Minute Static Pressure Performance of Vapor Recovery Systems of Cargo Tanks.

4/1/2015 [INSERT Federal Register CITATION], 4/5/2022.Submitted on August 22, 2018 as 

an attachment to a letter dated 

August 16, 2018. 

Test Procedure TP–204.3 Determination of Leak(s) .. 4/1/2015 [INSERT Federal Register CITATION], 4/5/2022.Submitted on August 22, 2018 as 

an attachment to a letter dated 

August 16, 2018. 

*******

* * * * * 

[FR Doc. 2022–07106 Filed 4–4–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2010–0406; FRL–9206–02– 

R8] 

Approval and Promulgation of Air 

Quality Implementation Plans; North 

Dakota; Regional Haze State and 

Federal Implementation Plans 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is finalizing approval of 

a State Implementation Plan (SIP) 

revision submitted by the State of North 

Dakota on August 3, 2020, addressing 

regional haze. Specifically, EPA is 

approving 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 nitrogen 

oxides (NOX) for Antelope Valley 

Station Units 1 and 2 promulgated by 

EPA in our 2012 Federal 

Implementation Plan (FIP). In 

conjunction with the approval of 

Amendment No. 2, we are also 

withdrawing the 2012 FIP as it applies 

to the Antelope Valley Station as well 

as certain provisions related to Coal 

Creek Station that were vacated by a 

judicial determination. EPA will work 

with North Dakota to ensure that the 

State corrects the SIP deficiencies 

related to Coal Creek Station. EPA is 

finalizing this action pursuant to 

sections 110 and 169A of the CAA. 

DATES: This rule is effective on May 5, 

2022. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2010–0406. 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 website and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available through https:// 

www.regulations.gov, or please call or 

email the person identified in the FOR

FURTHER INFORMATION CONTACT section 

for additional availability information. 

FOR FURTHER INFORMATION CONTACT: 

Aaron Worstell, Air and Radiation 

Division, EPA, Region 8, Mailcode 

8ARD–IO, 1595 Wynkoop Street, 

Denver, Colorado 80202–1129, 

telephone number: (303) 312–6073, 

email address: worstell.aaron@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

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

the EPA. 

Table of Contents 

I. Background 

A. Amendment No. 2 to the North Dakota 

Regional Haze State Implementation 

Plan 

B. Federal Implementation Plan 

Withdrawal 

II. Public Comments and EPA Responses 

III. The EPA’s Final Action 

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. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement (NTTAA) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Determination Under Clean Air Act 

Section 307(d) 

L. Congressional Review Act (CRA) 

M. Judicial Review 

I. Background 

The background for this action is 

described in detail in our March 12, 

2021 proposed rule.1 In the proposed 

rule, EPA proposed to approve 

Amendment No. 2 to the North Dakota 

Regional Haze SIP as described below. 


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2The regulatory provisions of SIP Amendment 

No. 2 (which are the only parts of Amendment No. 

2 being incorporated by reference) are contained in 

Appendix D.6, Permit to Construct for Antelope 

Valley, number PTC20031. 

3 77 FR 20894 (April 6, 2012). 

4 Id. 

5 80 FR 76211 (December 8, 2015). 

6 730 F.3d 750, 764 (8th Cir. 2013), cert. denied, 

134 S. Ct. 2662 (2014). 

7 42 U.S.C. 7410(a)(2)(D)(i)(II). 

8 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). 

9 ‘‘Implementation period’’ and ‘‘planning 

period’’ are used interchangeably in this document. 

10 40 CFR 51.308(b). 

11 86 FR 14057. 

A. Amendment No. 2 to the North 

Dakota Regional Haze State 

Implementation Plan 

We proposed to approve the following 

elements of Amendment No. 2 to the 

North Dakota Regional Haze SIP: 2

• A NOX emission limit of 0.17 lb/ 

MMBtu (30-day rolling average) each for 

Antelope Valley Station Units 1 and 2, 

applicable 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; 

• Provisions requiring compliance 

with the emission limit and monitoring, 

recordkeeping, and reporting 

requirements in the SIP revision no later 

than the effective date of this final 

action; and 

• 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 (Federal Land Manager 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 proposed to find that North 

Dakota fulfilled its requirement to 

consult with the Federal Land Managers 

(FLMs) in development of Amendment 

No. 2. 

We also proposed to restore certain 

other nonregulatory text amendments 

under 40 CFR 52.1820(e). The proposed 

amendments include incorporation of 

provisions previously approved in our 

2012 final rule.3 EPA partially approved 

these provisions as meeting the 

requirements of the CAA and applicable 

regulations in previous actions; 4

however, when updating 40 CFR 

52.1820(e) in 2015, we inadvertently 

deleted all approved provisions relevant 

to North Dakota regional haze.5 We 

proposed to remedy that error; however, 

we did not otherwise address or reopen 

for comment any of the previously 

approved provisions. We deem any 

comments on these provisions beyond 

the scope of this action. 

B. Federal Implementation Plan 

Withdrawal 

Because we proposed 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 also proposed to 

withdraw the corresponding portions of 

the North Dakota Regional Haze FIP at 

40 CFR 52.1825. 

In addition, EPA stated that we 

planned to remove from the Code of 

Federal Regulations the FIP 

requirements for Coal Creek Station that 

the U.S. Court of Appeals for the Eighth 

Circuit vacated in North Dakota v. 

EPA.6 Because this is a purely 

ministerial action to ensure that the 

Code of Federal Regulations reflects 

current case law, we did not invite 

public comment on our removal of the 

vacated language. North Dakota’s BART 

obligation for Coal Creek Station 

remains outstanding. 

We did not propose any other changes 

related to our 2012 final rule because no 

other changes were addressed in 

Amendment No. 2 or required by the 

North Dakota decision. Accordingly, 

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,7 remain in place.8 We did 

not reopen or take comment on these 

aspects of our 2012 final rule. We deem 

any comments on these issues beyond 

the scope of this action. 

Our proposed rule provided 

background on the requirements of the 

CAA and EPA’s Regional Haze Rule, 

and EPA’s rationale for its proposed 

action. That background information 

and rationale will not be restated here. 

For the reasons stated in the proposed 

rule and this document, EPA approves 

Amendment No. 2 to the North Dakota 

SIP for Regional Haze to satisfy certain 

requirements for the first 

implementation period 9 of the CAA’s 

regional haze program. 

II. Public Comments and EPA 

Responses 

We received comments from the 

public and a group of conservation 

organizations through the internet and 

mail. The full text of comments received 

from these commenters is included in 

the publicly posted docket associated 

with this action at https:// 

www.regulations.gov. The National 

Parks Conservation Association, Sierra 

Club, and Badlands Conservation 

Alliance (Conservation Organizations) 

submitted detailed written comments in 

opposition to our proposed approval of 

Amendment No. 2. We also received a 

short comment from a member of the 

public in support of our proposed 

approval. 

Comment summary: The commenters 

assert that EPA’s proposal relies on 

outdated data and technical 

information. They state that North 

Dakota’s SIP submittal does not contain 

a four-factor reasonable progress 

analysis of its own, nor does it reference 

EPA’s FIP analysis. Further the 

commenters state that the emission data 

and technical analysis regarding costs 

and controls in EPA’s 2012 FIP are more 

than nine years old, and no longer 

represent current operations. The 

commenters state that current 

operational data is missing from the 

record, and that Antelope Valley Station 

Units 1 and 2 are currently meeting NOX

emission limits of 0.11 lb/MMBtu, 

which is significantly less than the FIP 

and SIP revision limit of 0.17 lb/ 

MMBtu. The commenters assert that 

EPA’s regulations require that SIPs must 

provide for ‘‘public availability of 

emission data reported by source 

owners or operators or otherwise 

obtained by a State or local agency,’’ 

which is then required to be correlated 

with the applicable reasonable progress 

emission limitations. The commenters 

assert that neither North Dakota’s SIP 

submittal nor EPA’s proposal contain an 

updated reasonable progress analysis 

and consideration of additional 

controls. 

Response: EPA disagrees with these 

comments. First, neither North Dakota 

nor EPA is required to conduct a new 

four factor reasonable progress analysis 

for this action because the relevant 

analysis was completed during the first 

regional haze planning period in 

support of EPA’s 2012 FIP. As explained 

in the proposed rule, this action 

involves a mere transfer of the first 

planning period NOX reasonable 

progress requirements for Antelope 

Valley Station Units 1 and 2 from EPA’s 

2012 FIP to North Dakota’s SIP. 

Under the Regional Haze Rule, states 

were required to submit SIP revisions 

including first planning period regional 

haze requirements on December 17, 

2007.10 North Dakota submitted its 

regional haze SIP revision in 2010.11 As 

explained in the proposed rule, in 2012, 

EPA disapproved North Dakota’s NOX

reasonable progress determination for 


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12 76 FR 58570, 58630–32 (September 21, 2011). 

13 77 FR 20899. 

14Note that the commenters are incorrect that 

current operational data is missing from the record 

for this action. See AVS Monthly AMPD Data, EPA– 

R08–OAR–2010–0406–0440. 

15 76 FR 58632. See also, 40 CFR part 51, 

appendix Y, IV.E.5 (stating that 0.17 lb/MMBtu is 

the presumptive limit that can be met by tangentialfired boilers using combustion control technology 

and burning lignite coal). 

16 76 FR 58631. 

17Compare id., Table 71, Summary of Antelope 

Valley Station NOX Reasonable Progress Analysis 

Control Technologies for Unit 1 and 2 Boilers, with 

North Dakota Department of Health, North Dakota 

State Implementation Plan for Regional Haze, 

February 24, 2010, Table 9.8, Control Cost Options, 

page 204. 

18 86 FR 14061. 

Antelope Valley Station Units 1 and 2 

and instead promulgated a FIP. To 

support the FIP, EPA performed a 

thorough, six-step, reasonable progress 

analysis.12 EPA presented control 

efficiencies, emissions data, emissions 

reductions for six different control 

options (including no controls), 

analyzed costs for five control options, 

and noted visibility benefits of 0.754 

deciviews at Theodore Roosevelt 

National Park from the installation of 

new low-NOX burners and separated 

overfire air (LNB and SOFA, or 

‘‘combustion controls’’) on Antelope 

Valley Station Units 1 and 2. As a result 

of EPA’s six-step analysis, EPA 

determined that an emission limit 

consistent with the installation of LNB 

and SOFA (0.17 lb/MMBtu on a 30-day 

rolling average) was appropriate to 

require as reasonable progress for the 

first planning period.13 North Dakota’s 

SIP revision at issue in this action 

adopts the exact same emission limit 

and associated monitoring, 

recordkeeping, and reporting 

requirements that EPA included in its 

2012 FIP, thereby adopting the exact 

same first planning period NOX

reasonable progress requirements for 

Antelope Valley Station Units 1 and 2 

that EPA set in 2012. Thus, neither 

North Dakota nor EPA was required to 

perform a new analysis duplicative of 

EPA’s earlier analysis for purposes of 

this federal-to-state transfer. 

Second, neither North Dakota nor 

EPA was required to update the prior 

analysis with current emissions data or 

tighten the NOX emission limit based on 

current operations.14 Again, the 

determination being transferred from 

EPA’s 2012 FIP to North Dakota’s SIP in 

this action is a first planning period 

determination. The analysis that 

supported EPA’s 2012 determination 

and the emission limit that EPA set 

(0.17 lbs/MMBtu on a 30-day rolling 

average) was consistent with the EPA’s 

understanding at the time of the 

emission limit achievable with 

combustion controls at similar units.15

That Antelope Valley Station Units 1 

and 2 currently could meet a lower NOX

emission limit with the installed 

combustion controls may be relevant to 

North Dakota’s forthcoming second 

planning period regional haze SIP 

revision, but that information does not 

demand a revised analysis to support 

the mere transfer of first planning 

period requirements from EPA’s FIP to 

North Dakota’s SIP. 

Comment summary: The commenters 

assert that EPA must not approve North 

Dakota’s proposed SIP amendments 

because they are inconsistent with 

EPA’s FIP. Specifically, the commenters 

assert that the regulatory text in 40 CFR 

52.1820(e) contains two conflicting 

provisions: 

• EPA proposes to adopt by reference 

North Dakota’s SIP that was effective 

under State law on July 8, 2020 (which 

contains information and references to 

the disapproved SIP in Section 9.5.1 of 

North Dakota’s SIP Amendment No. 2); 

and 

• While in the same portion of the 

regulatory text, EPA’s ‘‘Comments’’ for 

the Regional Haze line entry indicates 

that it is incorporating by reference the 

entire State Plan ‘‘[e]xcluding 

provisions disapproved on April 6, 

2012. 77 FR 20894.’’ 

The commenters state that Section 

9.5.1 of North Dakota’s SIP references 

assumptions and analysis from the 

disapproved sections of its Regional 

Haze SIP, including control efficiencies 

and emission reductions. The 

commenters state that EPA’s 

disapproval explained that North 

Dakota’s control efficiencies and 

emission reductions for Units 1 and 2 

differed from EPA analysis, and EPA 

ultimately relied on its own analysis 

promulgating the FIP. The commenters 

also argue that EPA’s current proposal 

erred in stating that North Dakota’s SIP 

Amendment No. 2 merely adopts the 

FIP. The commenters conclude that EPA 

is proposing to approve portions of 

North Dakota’s SIP that it earlier 

disapproved. The commenters also 

assert that North Dakota has attempted 

to use this SIP amendment to restore 

assumptions and analysis EPA 

disapproved and replaced with its FIP 

analysis and final reasonable progress 

determination. 

The commenters contend that it is 

unreasonable and inappropriate for EPA 

to approve the sentences in North 

Dakota’s narrative in Section 9.5.1 

because they are inconsistent with 

EPA’s FIP analysis. Additionally, the 

commenters contend that neither North 

Dakota’s SIP amendment nor EPA’s 

proposal contain the substantive 

technical analysis to support North 

Dakota’s brief discussion in Section 

9.5.1. The commenters state that there is 

no information for the public to review 

and comment on. The commenters 

believe that North Dakota may have 

included the discussion and reference to 

its disapproved SIP provisions in an 

attempt to then reference this 

information as ‘‘EPA approved’’ in its 

upcoming proposed regional haze SIP 

due to EPA by July 31, 2021. The 

commenters conclude that EPA must 

not approve the State’s disapproved first 

round reasonable progress analysis for 

Antelope Valley Station. 

Response: EPA disagrees with this 

comment. First, the commenters are 

incorrect that EPA’s 2012 disapproval 

‘‘explained that [North Dakota’s] control 

efficiencies and emission reductions for 

Units 1 and 2 differed from [the] EPA 

analysis, and EPA ultimately relied on 

its own analysis promulgating the FIP.’’ 

In the 2011 proposed rule, we explicitly 

stated that ‘‘[o]ur analysis is based on 

the information provided by North 

Dakota, except that, as we explain 

below, we are disregarding North 

Dakota’s visibility analysis.’’ 16 In EPA’s 

analysis supporting the FIP, the control 

efficiency and emission reductions for 

each control were identical to those in 

North Dakota’s analysis.17 For example, 

both EPA and North Dakota assumed 

that LNB with SOFA could achieve a 

51% control efficiency and reduce NOX

emissions by 3,889 tons per year at Unit 

1 and by 3,450 tons per year at Unit 2. 

Thus, by relying on the 2012 analysis 

for this rule, EPA is not relying on 

assumptions and analysis that EPA 

disapproved in 2012, as the commenters 

contend. 

Moreover, as acknowledged by the 

commenters, the proposed regulatory 

text in 40 CFR 52.1820(e) for this action 

specifies that the provisions of the 2010 

SIP that were disapproved in our 2012 

final action, including those in Section 

9.5.1, will remain disapproved.18 Thus, 

in this action, we are not approving 

previously disapproved portions of 

North Dakota’s SIP. 

Finally, the commenters presented no 

evidence to support their contention 

that North Dakota intends to rely on the 

technical analysis from its 2010 SIP for 

its second planning period regional haze 

SIP revision. We are aware that North 

Dakota has selected Antelope Valley 

Station as a source to analyze for 

additional control measures in the 

second planning period. We are also 

aware that the new four factor analysis 

conducted for North Dakota’s second 


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19North Dakota Department of Environmental 

Quality, Air Pollution Control Program, Division of 

Air Quality, DRAFT for Federal Land Manager 

Review, North Dakota State Implementation Plan 

for Regional Haze, available at https://deq.nd.gov/ 

publications/AQ/Planning/RegionalHaze/Round_2/ 

ND_RH_SIP_v2.0DRAFT.pdf. See four- factor 

analysis for Antelope Valley Station in Appendix 

A.2. 

20 42 U.S.C. 7410(k)(1)(A), (B). 

21 40 CFR part 51, appendix V. 

22 42 U.S.C. 7410(k)(1)(C); 40 CFR part 51, 

appendix V, § 1.2. 

23 40 CFR part 51, appendix V, § 1.2 (‘‘A 

determination of completeness under this 

paragraph means that the submission is an official 

submission for purposes of § 51.103.’’). 

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) at 

121. 

25See NRDC v. Browner, 57 F.3d 1122, 1123 (D.C. 

Cir. 1995). 

26 86 FR 14055, 14057–58. 27 86 FR 14061. 

planning period SIP revision will be 

based on an updated technical analysis, 

including updated representative 

baseline emissions, control efficiencies, 

emission reductions, and costs.19 North 

Dakota’s second planning period SIP 

revision and the accompanying new 

four factor analysis will be subject to 

EPA review and subsequent public 

notice and comment. Any errors or 

deficiencies in the analysis will be 

addressed at that time. 

Comment summary: The commenters 

assert that North Dakota has not made 

an ‘‘official plan submission’’ to EPA 

and EPA has not demonstrated that the 

SIP submittal is complete. Specifically, 

the commenters assert that North Dakota 

failed to submit a SIP revision 

consistent with 40 CFR part 51, 

appendix V, because the submittal does 

not describe the ‘‘[c]ompliance/ 

enforcement strategies’’ it intends to 

follow in implementing the SIP, 

‘‘including how compliance will be 

determined in practice.’’ They assert 

that the SIP revision also lacks a 

‘‘description of the enforcement 

methods’’ that North Dakota plans to 

use when it implements the reasonable 

progress control strategy for the 

Antelope Valley Station. Additionally, 

the commenters contend that North 

Dakota’s SIP revision lacks a technical 

basis and reasoned analysis for 

including EPA’s FIP in the SIP. The 

commenters state that it is unclear what 

authority North Dakota relied on to 

adopt and then implement the SIP. 

The commenters further assert that 

EPA failed to prepare a completeness 

analysis under appendix V for public 

review and comment. The commenters 

contend that without a completeness 

analysis, EPA has not demonstrated that 

the SIP revision contains ‘‘[e]vidence 

that the plan contains emission 

limitations, work practice standards and 

recordkeeping/reporting requirements, 

where necessary, to ensure [reasonable 

progress determination] emission 

levels.’’ 

Response: EPA disagrees with these 

comments. CAA section 110(k) provides 

a two-step process for EPA’s review of 

SIP submittals. First, within six months 

of receiving a SIP submission, EPA must 

make a threshold ‘‘completeness 

determination’’ to determine whether 

the SIP contains certain ‘‘minimum 

criteria’’ designated by EPA as ‘‘the 

information necessary to . . . determine 

whether the plan submission complies 

with the provisions of the CAA.’’ 20

These minimum criteria are listed in 40 

CFR part 51, appendix V.21 There is no 

requirement in the CAA or EPA’s 

regulations that EPA document its 

completeness review prior to proposing 

to approve a SIP revision. To the 

contrary, if EPA fails to make the 

completeness determination within six 

months, the SIP submission is deemed 

complete by operation of law.22 Here, 

EPA received North Dakota’s SIP 

submittal on July 28, 2020. EPA did not 

make a formal completeness 

determination within six months; thus, 

the SIP submittal was deemed complete 

by operation of law and constitutes an 

official submission.23 North Dakota’s 

authority to adopt the SIP is addressed 

in the Opinion issued by the North 

Dakota Office of Attorney General and 

submitted with the SIP revision.24

In the second step of the two-step 

process, EPA evaluates SIP submittals 

for compliance with substantive CAA 

requirements.25 Here, the relevant 

provisions are CAA sections 110 and 

169A and 40 CFR 51.308. EPA 

explained in the proposed rule and 

elsewhere in this document how North 

Dakota’s SIP revision complies with 

these substantive requirements of the 

CAA and Regional Haze Rule, and 

specifically addresses the commenters’ 

concerns regarding enforceability in this 

document below.26 Thus, the 

commenters’ assertions that North 

Dakota’s SIP revision was inadequate 

because it lacked appendix V criteria 

and that EPA’s proposal was inadequate 

because it lacked an appendix V 

completeness determination are without 

merit. 

Comment summary: The commenters 

state that, in order to approve North 

Dakota’s SIP that replaces the FIP, the 

SIP revision must be substantively 

identical to the FIP and enforceable. The 

commenters contend that EPA’s 

proposal does not include all the permit 

provisions necessary to make the SIP 

equivalent to the FIP, but instead 

includes only selective provisions from 

North Dakota’s air pollution control 

permit to construct: ‘‘emission limit[s] 

for Units 1 and 2 and corresponding 

monitoring, recordkeeping, and 

reporting requirements.’’ The 

commenters assert that EPA’s proposal 

is not substantively identical to its FIP 

because it does not propose approving 

parallel permit conditions that are 

necessary for enforceability, such as 

permit conditions related to definitions, 

compliance dates, continuous emissions 

monitoring, and others. The 

commenters also state that there are 

permit conditions for which there are 

not parallel provisions in the FIP that, 

if approved into the SIP, would at least 

in part address their concerns regarding 

enforceability. Finally, the commenters 

state that there are permit conditions for 

which there are not parallel conditions 

in the FIP and that we do not have 

authority to approve, such as those 

related to continuous emission 

monitoring procedures, audits, and 

reporting, and to emission inventory 

reporting. In particular, the commenters 

contend that EPA must not approve the 

permit conditions that involve reporting 

on State-supplied forms because (1) the 

forms may contain information 

inconsistent with that required by the 

FIP, (2) the permit conditions do not 

specify what is on these forms, and the 

public did not have an opportunity to 

review and comment on the forms, and 

(3) the information in the forms is left 

to the State’s discretion. The commenter 

makes similar arguments regarding 

monitoring procedures and audits. 

Response: We agree with this 

comment, in part, and are making 

changes in this final rule accordingly. In 

our proposed rule, the comment column 

in the regulatory text for Antelope 

Valley Station indicated that we 

proposed to incorporate into the SIP 

those permit conditions found in the 

permit-to-construct (PTC20031) related 

only to the ‘‘NOX BART emission limit 

for Units 1 and 2 and corresponding 

monitoring, recordkeeping, and 

reporting requirements.’’ 27 While this 

language could be understood to mean 

that any permit condition necessary for 

enforceability would be included in the 

SIP, the commenters interpreted it to 

mean that only the permit conditions in 

the three sections of the permit with 

corresponding titles would be 

incorporated into the SIP: Section 


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28 77 FR 20943. 

29Air Pollution Control Title V Permit to Operate, 

Permit Number T5–F8600, renewal no. 4, June 26, 

2019. North Dakota has a fully approved operating 

permit program. 40 CFR part 70, appendix A. 

30 77 FR 20943. 

31See Title V Semi-Annual Monitoring Report, 

https://www.deq.nd.gov/forms/aq/title-v/ 

SFN52737.pdf; Title V Annual Compliance 

Certification Report, https://www.deq.nd.gov/forms/ 

aq/title-v/SFN52738.pdf; see also https:// 

www.deq.nd.gov/AQ/Forms.aspx (list of North 

Dakota Air Quality Forms). 

32 42 U.S.C. 7410(l). 

33 86 FR 14057–58. 

34 86 FR 14058. EPA also added that there are no 

NAAQS nonattainment or maintenance areas in 

North Dakota. See Current Nonattainment Counties 

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

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

2021). 

II.A.2—Emission Limits; Section 

II.A.5—Monitoring Requirements and 

Conditions; and Section II.A.6— 

Reporting. To provide clarity, we are 

removing the comment from the sourcespecific requirements for Antelope 

Valley Station Units 1 and 2. This 

should address the commenters’ 

concerns regarding the permit 

conditions necessary for enforceability, 

as well as whether the SIP is 

substantively the same as the FIP. In 

addition, we note that this approach 

(not specifying which permit conditions 

are being incorporated into the SIP) is 

consistent with the approach we took 

for other sources in our 2012 final rule 

(i.e., for Heskett Station Units 1 and 2, 

Leland Olds Units 1 and 2, Milton R. 

Young Units 1 and 2, and Staton Station 

Unit 1).28

We disagree that we do not have 

authority to, and must not, approve 

additional permit conditions for which 

there are not parallel conditions in the 

FIP. With the clarifying change we are 

making to the source-specific 

requirements of 40 CFR 52.1820(d) 

today, we are incorporating into the SIP 

all provisions that are necessary for 

enforceability (e.g., monitoring, record 

keeping, and reporting). Thus, any 

permit conditions that are in addition to 

parallel conditions in the FIP only serve 

to enhance enforceability. In any event, 

these additional permit conditions are 

included in the Title V permit for 

Antelope Valley Station, and are thus 

already federally enforceable.29

Moreover, the same or similar permit 

conditions also appear in the permit-toconstruct for each of the sources for 

which we approved source-specific 

requirements in our 2012 final rule.30

Finally, the forms that concern the 

commenters are publicly available on 

North Dakota’s website.31 We have 

reviewed them and find no reason to 

conclude that they would allow 

violations of the emission limit for Units 

1 and 2 or the monitoring, 

recordkeeping, and reporting 

requirements, or interfere with 

enforceability. 

Comment summary: The commenters 

assert that North Dakota’s SIP revision 

did not contain an analysis under CAA 

section 110(l), and that EPA’s analysis is 

inaccurate and incomplete. In 

particular, the commenters contend that 

EPA wrongly referenced a CAA section 

110(l) analysis completed for the 2012 

FIP. The commenters further assert that 

EPA wrongly considered only National 

Ambient Air Quality Standards 

(NAAQS) requirements and not other 

CAA requirements, including regional 

haze requirements, in its CAA section 

110(l) analysis. Additionally, the 

commenters contend that the public was 

not provided an opportunity to 

comment on the required section 110(l) 

analysis that considers all the Act’s 

requirements. 

Response: EPA disagrees with these 

comments. CAA section 110(l) states in 

relevant part: ‘‘The Administrator shall 

not approve a revision of a plan if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress (as defined in section 7501 of 

this title), and any other applicable 

requirement of this chapter.’’ 32 CAA 

section 110(l) applies to all 

requirements of the CAA and it applies 

to all areas of the country, whether 

attainment, nonattainment, 

unclassifiable or maintenance for one or 

more of the six criteria pollutants. 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. The level of rigor 

needed for any CAA section 110(l) 

demonstration will vary depending on 

the nature and circumstances of the 

revision. 

As an initial matter, the commenters 

fail to identify any change to emissions 

or ambient concentrations of NOX that 

will result from approval of North 

Dakota’s SIP revision. Nor can they. As 

we explained in the proposed rule and 

above in response to comments, the first 

planning period reasonable progress 

requirements for Antelope Valley 

Station Units 1 and 2 in North Dakota’s 

SIP revision are the exact same 

requirements in EPA’s 2012 FIP.33 Thus, 

there is no difference in emissions 

between the 2012 FIP and the SIP 

revision. Accordingly, EPA’s approval 

of North Dakota’s SIP revision cannot 

interfere with any applicable CAA 

requirement. 

Additionally, there was no CAA 

section 110(l) analysis for the 2012 final 

rule, and thus, EPA did not rely on a 

prior CAA 110(l) analysis in the 2021 

proposal. Instead, in the 2021 proposal, 

EPA stated that ‘[t]he previous section 

of [the proposal] 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.’’ 34

In other words, under CAA section 

110(l), we proposed to find that EPA’s 

approval of North Dakota’s SIP revision 

does not interfere with the CAA’s 

regional haze provisions (or other 

implementation plan requirements) 

because the SIP revision mirrors EPA’s 

2012 FIP requirements, which EPA 

determined in 2012 meet the 

requirements of the CAA’s regional haze 

provisions (and other implementation 

plan requirements). Accordingly, EPA’s 

CAA section 110(l) analysis is not 

inaccurate or incomplete—EPA 

considered potential interference with 

all applicable CAA requirements, 

including regional haze requirements. 

But EPA tailored its analysis to the 

circumstances at issue here—a mere 

transfer of the existing emission limit 

for Units 1 and 2 and the associated 

monitoring, recordkeeping, and 

reporting requirements (and no 

corresponding change in emissions) 

from EPA’s 2012 FIP to an approved SIP 

revision. We find that 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. 

Comment summary: The commenters 

further contend that EPA’s approval of 

North Dakota’s SIP revision would 

violate the CAA’s anti-backsliding 

provisions. The commenters state that 

EPA may not approve North Dakota’s 

SIP revision because it would allow 

increased NOX emissions and visibility 

impairment in violation of the CAA 

section 110(l) and case law. The 

commenters criticize EPA for failing to 

evaluate how emissions will change as 

a result of North Dakota’s SIP revision 

when compared to the FIP and for 

failing to fully evaluate the differences 

between the FIP and North Dakota’s SIP 

revision. 

The commenters contend that EPA’s 

replacement of its FIP with North 

Dakota’s SIP revision would violate 

CAA section 110(l) by allowing 

increased air pollution for several 

reasons. First, the commenters contend 

that EPA failed to propose to approve all 

the provisions in North Dakota’s permit, 


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35WildEarth Guardians v. EPA, 759 F.3d 1064, 

1074 (9th Cir. 2014) (finding that the petitioners 

identified nothing in Nevada’s SIP that weakened 

or removed any pollution controls and that when 

a ‘‘SIP merely maintained the status quo, that 

would not interfere with the attainment or 

maintenance of the NAAQS’’ and the approval did 

not contravene CAA section 110(l)); see also El 

Comite Para El Bienestar de Earlimart v. EPA, 786 

F.3d 688, 696–97 (9th Cir. 2015) (finding that EPA 

did not fail to consider CAA section 110(l) when 

it reasonably concluded that California’s prior SIP 

requirement and the SIP revision requirement were 

equivalent). Because the SIP revision at issue here 

is not less stringent than the FIP, the other cases 

cited in footnote 40 of the comment letter are 

inapposite. In any event, they do not stand for the 

proposition that the commenters assert—neither the 

plain language of CAA section 110(l) nor case law 

supports an interpretation that per se prohibits 

approval of any SIP revision that allows an increase 

in emissions or weakens requirements relative to 

the existing implementation plan. Rather, the 

statute prohibits approval of such a SIP revision if 

it would interfere with attainment of the NAAQS, 

reasonable further progress, or any other applicable 

requirement of the CAA. See Indiana v. EPA, 796 

F.3d 803, 811 (7th Cir. 2015); Alabama 

Environmental Council v. EPA, 711 F.3d 1277, 1293 

(11th Cir. 2013) (quoting Train v. NRDC, Inc., 421 

U.S. 60, 79 (1975)); Kentucky Resource Council v. 

EPA, 467 F.3d 986, 994–996 (6th Cir. 2006). 36 5 U.S.C. 553(d)(3). 

which according to the commenters 

means that citizens and others will not 

have the same opportunities to enforce 

the emission limits as under the FIP and 

will result in less stringent requirements 

and likely increased emissions. Second, 

the commenters contend that EPA failed 

to propose approval of provisions in 

North Dakota’s permit that would 

address their enforceability concerns. 

Third, commenters contend that EPA 

proposed to include provisions in the 

approved SIP revision that do not 

appear in the FIP, including provisions 

that allow unbounded discretion to 

North Dakota, which the commenters 

contend could also result in increasing 

emissions. 

Response: EPA disagrees with these 

comments. As explained above, the 

transfer of first planning period NOX

regional haze requirements for Antelope 

Valley Station Units 1 and 2 from EPA’s 

2012 FIP to North Dakota’s SIP will not 

result in any change in NOX emissions. 

Moreover, as also explained above, the 

SIP revision and corresponding permit 

are not less stringent than the FIP, nor 

is the SIP revision less enforceable. The 

commenters have offered no support for 

their contention that, under the SIP 

revision, the State obtains ‘‘unbounded 

discretion’’ inconsistent with the FIP 

and we find none. Accordingly, there is 

no support for the commenters’ 

assertion that the SIP approval results in 

backsliding under the CAA.35

Comment summary: The commenters 

state that, if EPA were to take final 

action, it must fix fatal errors in its 

proposed regulatory text. In a footnote, 

the commenters state that EPA did not 

explain its authority for correcting the 

regulatory text to include provisions 

approved in 2012 and inadvertently 

deleted in 2015. Additionally, the 

commenters contend that making the 

correction would resolve the error going 

forward but would not restore the 

regulatory text missing from the Code of 

Federal Regulations from 2015 to 

present. The commenters contend that 

EPA’s final action and regulatory text 

must clearly include language that 

covers the missing years so that the SIP 

is enforceable during that time period. 

The commenters also criticize EPA for 

proposing a single ‘‘State effective date’’ 

of July 8, 2020, in the proposed 

regulatory text language in 40 CFR 

52.1820(e). The commenters identify 

three reasons why they believe the state 

effective date must be corrected. First, 

the commenters state that the only 

portions of the State regional haze SIP 

that were effective as a matter of State 

law on July 8, 2020, were the following: 

Section 9.5.1; Appendix J.1.6: FLM 

Comments on SIP Amendment 2; and 

Appendix J.3.4. Second, the 

commenters state that North Dakota’s 

cover letter to Basin Electric 

Cooperative for construction permit 

PTC20031 for its Antelope Valley 

Station explains that the State’s intent 

was to make the permit effective if/ 

when EPA approved the SIP 

Amendment No. 2, not at the time the 

SIP was adopted by the State. The 

commenters state that EPA’s proposed 

regulatory text for the ‘‘State effective 

date’’ needs to be clarified on this point. 

Third, the commenters state that the 

remaining sections of North Dakota’s 

regional haze SIP incorporated by 

reference in 40 CFR 52.1820(e), which 

EPA inadvertently deleted in 2015, were 

effective in 2012, not on July 8, 2020. 

The commenters conclude that the EPA 

must correct these errors for SIP 

enforceability purposes and revise the 

regulatory text to reflect the three 

different State effective dates for the 

regional haze SIP. 

In addition, the commenters argue 

that EPA’s FIP contains separate 

emission limits for Units 1 and 2, while 

EPA’s proposed regulatory text proposes 

one emission limit for both units. The 

commenters assert that one plantwide 

emission limit would mean that when 

one unit is down for maintenance or 

other reasons, Antelope Valley Station 

could operate the controls on the second 

operating unit less stringently in order 

to save money. The commenters 

conclude that, if EPA elects to finalize 

this proposal, it must amend this 

regulatory text so that it is consistent 

with the FIP and regional haze program 

requirements. 

Response: As stated in our proposed 

rule, we did not take comment on the 

restoration of the nonregulatory text 

amendments under 40 CFR 52.1820(e) 

that we inadvertently deleted in 2015. 

Thus, we deem the comment beyond the 

scope of this action. Contrary to the 

commenters’ suggestion, EPA had 

authority to correct this error without 

additional notice and comment under 

the ‘‘good cause’’ exception in the 

Administrative Procedure Act.36

Today’s action simply restores 

nonregulatory provisions which were 

previously approved after public notice 

and comment for the 2012 final rule. 

Thus, another notice and opportunity 

for comment to correct the error is 

unnecessary. 

Nonetheless, we disagree that it is 

necessary for the regulatory text to 

include language that covers previous 

regional haze actions to ensure that the 

regional haze SIP, as a whole, is 

enforceable. The nonregulatory 

provisions found in 40 CFR 52.1820(e), 

including the SIP narrative, are not 

enforceable. Instead, the enforceable 

portions of the SIP are incorporated by 

reference in paragraph in 40 CFR 

52.1820(c), EPA-approved regulations, 

and 40 CFR 52.1820(d), EPA-approved 

source specific requirements. Thus, the 

nonregulatory amendments are not 

necessary to ensure enforceability 

regardless of whether citations to 

previous actions are listed. Moreover, 

the regional haze amendments have 

been treated in the same manner as 

other sections of the State’s SIP. That is, 

only the effective date of the most recent 

revision to a relevant chapter or section 

of the SIP (in this case, July 8, 2020) is 

given. Finally, we are clarifying that the 

‘‘State effective date’’ is the effective 

date of the State’s SIP or rule, and 

differs from the compliance date 

(through the permit to construct) to 

meet emission limits and related 

requirements. 

The commenters are incorrect that 

EPA proposed to approve a plant-wide 

emission limit for Units 1 and 2. The 

permit, PTC20031, which we are now 

incorporating into the SIP in whole, 

includes condition II.A.2 stating that 

‘‘Basin Electric Power Coop. shall not 

emit or cause to be emitted from each 

unit NOX in excess of 0.17 pounds per 

million British Thermal Units (0.17 lb/ 

106 Btu) averaged over a 30-day period 

(30-day rolling average)’’ (emphasis 

added). Permit condition II.A.2 is 

consistent with the separate emission 

limits in the FIP that we are 

withdrawing. Regardless, as discussed 

above, the proposed comment language 


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37 76 FR 58631, Table 71. Calculated reductions 

were based on baseline (no controls) emissions of 

7,625 tons per year and 6,765 tons per year for 

Units 1 and 2, respectively. 38 62 FR 27968 (May 22, 1997). 

in 40 CFR 52.1820(d) to which the 

commenters refer is not included in this 

final action. 

Comment summary: The commenters 

contend that EPA’s proposal fails to 

abide by the environmental justice 

requirements in 2021 Executive Orders. 

The commenters state that EPA is 

required to ensure that its action on SIP 

regional haze plans address any 

disproportionate environmental impacts 

of the pollution that contributes to haze. 

The commenters further assert that EPA 

missed the mark in considering only 

Executive Order 12898, because in 

January 2021, the current 

Administration signed additional 

Executive Orders that require agencies 

to advance and prioritize environmental 

justice (citing Executive Orders 13998 

and 14008). The commenters criticize 

EPA for failing to consider impacts on 

nearby environmental justice 

communities located on and near the 

Fort Berthold Indian Reservation under 

these additional Executive Orders and 

instead relying on its 2012 analysis 

under Executive Order 12898. The 

commenters assert that EPA must 

provide a new environmental justice 

analysis and tighter NOX limits to 

improve visibility and air quality in the 

Fort Berthold Indian Reservation. 

Response: EPA disagrees with these 

comments. As established in the 

responses above, the requirements of the 

State’s SIP are substantively the same as 

in EPA’s FIP. Our 2012 FIP for Antelope 

Valley Station resulted in substantial 

NOX reductions from Units 1 and 2. In 

particular, in our 2012 FIP, we 

calculated that the emission limit of 

0.17 lb/MMBtu (30-day rolling average) 

would lead to NOX reductions of 3,889 

tons per year for Unit 1 and 3,450 tons 

per year for Unit 2.37 We expect this 

level of NOX reductions will continue 

under North Dakota’s SIP revision. 

Thus, the impacts of this action, like the 

2012 FIP, are expected to be beneficial, 

rather than adverse, and its benefits are 

expected to accrue to communities in 

and near Indian country lands within 

the Fort Berthold Indian Reservation. 

Our review of Executive Orders 13990 

and 14008, cited by the commenters, do 

not lead us to a different conclusion 

regarding the need for additional 

analysis under the circumstances at 

issue in this action. 

Comment summary: The commenters 

state that EPA should not finalize 

approval of this action. The commenters 

also state that, if EPA were to finalize 

approval, we should make corrections 

(per comments above) to ensure that the 

EPA’s approval of the SIP is 

substantively equivalent to the FIP. The 

commenters contend that otherwise 

EPA’s approval of the SIP revision 

would be less stringent and inconsistent 

with the FIP and current emissions, and 

also undermine the Eighth Circuit’s 

decision affirming the FIP for the 

Antelope Valley Station. The 

commenters state that the reductions 

and provisions required in the 2012 FIP 

should remain in place for Antelope 

Valley Station to maintain emission 

reduction requirements to better air 

quality in national parks and wilderness 

areas and the public health co-benefits 

for the environmental justice 

communities in the Fort Berthold 

Reservation and nearby communities. 

Finally, the commenters state that EPA 

should make various corrections, obtain 

missing SIP information from North 

Dakota after it amends its SIP, and add 

missing analysis as described in our 

summary of comments earlier in this 

notice. In doing so, the commenters 

believe that EPA should re-notice its 

proposal so that the public has an 

opportunity to comment on the missing 

information and analysis. 

Response: We disagree that we should 

re-notice our proposal. The commenters 

concern regarding the enforceability of 

Amendment No. 2, as well as its 

equivalence to the FIP, have been 

addressed in response to other 

comments above. The level of NOX

emissions allowed under Amendment 

No. 2 will be the same as those allowed 

under the FIP. 

Comment summary: A member of the 

public commented that they think it is 

a good idea that EPA is proposing to 

approve the North Dakota SIP revision 

addressing regional haze. The 

commenter believes the approval will 

help improve air quality which will 

have a positive effect on air pollution. 

The commenter states that the proposal 

will also satisfy some aspects of the 

CAA. 

Response: We appreciate the 

commenter’s support for our proposed 

action. 

III. The EPA’s Final Action 

For the reasons stated in the preamble 

to the proposed rule and in this 

document, and with the clarifications to 

the regulatory text discussed herein, we 

are fully approving Amendment No. 2 to 

the North Dakota SIP for Regional Haze 

to satisfy certain requirements for the 

first implementation period of the 

regional haze program. Because we 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 

withdrawing the corresponding portions 

of the North Dakota Regional Haze FIP 

at 40 CFR 52.1825. We are also restoring 

certain other nonregulatory text 

amendments under 40 CFR 52.1820(e), 

as described in the preamble to the 

proposed rule and in this document. 

Finally, we are removing from the Code 

of Federal Regulations the FIP 

requirements for Coal Creek Station that 

the Eighth Circuit vacated in North 

Dakota v. EPA. 

IV. Incorporation by Reference 

In this document, the EPA is 

finalizing regulatory text that includes 

incorporation by reference. In 

accordance with the requirements of 1 

CFR 51.5, the EPA is finalizing the 

incorporation by reference of the SIP 

amendments described in section I.A of 

this preamble and set forth below. The 

EPA has made, and will continue to 

make, these materials generally 

available through https:// 

www.regulations.gov (refer to docket 

EPA–R08–OAR–2010–0406) 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). 

Therefore, these materials have been 

approved by the EPA for inclusion in 

the SIP, have been incorporated by 

reference by the EPA into that plan, are 

fully federally enforceable under 

sections 110 and 113 of the CAA as of 

the effective date of the final rulemaking 

of the EPA’s approval, and will be 

incorporated by reference by the 

Director of the Federal Register in the 

next update to the SIP compilation.38

V. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at http://www2.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 13563 

This action is exempt from review by 

the Office of Management and Budget 

(OMB) because it will apply to a single 

facility in the State of North Dakota. It 

is therefore not a rule of general 

applicability. 

B. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 


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39See 13 CFR 121.201, Sector 22, Subsector 221. 

40 42 U.S.C. 7607(d)(1)(B). 

41 42 U.S.C. 7607(d)(1)(V). 

PRA. Because this rule revises regional 

haze reporting requirements for a single 

facility, the PRA does not apply. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This action will not 

impose any requirements on small 

entities. This rule does not impose any 

requirements or create impacts on small 

entities as no small entities are subject 

to the requirements of this rule.39

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain an 

unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or 

uniquely affect small governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It 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. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action 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 action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045. The EPA interprets 

Executive Order 13045 as applying only 

to those regulatory actions that concern 

environmental health or safety risks that 

the 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. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement (NTTAA) 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes that this action does 

not have disproportionately high and 

adverse human health or environmental 

effects on minority populations, lowincome populations and/or indigenous 

peoples, as specified in Executive Order 

12898 (59 FR 7629, February 16, 1994). 

K. Determination Under Clean Air Act 

Section 307(d) 

Pursuant to CAA sections 307(d)(1)(B) 

and 307(d)(1)(V), the Administrator 

determines that this action is subject to 

the provisions of section 307(d). CAA 

section 307(d)(1)(B) provides that 

section 307(d) applies to, among other 

things, ‘‘the promulgation or revision of 

an implementation plan by the 

Administrator under [CAA section 

110(c)].’’ 40 Under section 307(d)(1)(V), 

the provisions of section 307(d) also 

apply to ‘‘such other actions as the 

Administrator may determine.’’ 41 To 

the extent the approval of North 

Dakota’s SIP revision is not expressly 

identified under section 307(d), the 

Administrator hereby determines that 

section 307(d) applies to this aspect of 

this action. The agency has complied 

with the procedural requirements of 

CAA section 307(d) during the course of 

this rulemaking. 

L. Congressional Review Act (CRA) 

This rule is exempt from the CRA 

because it is a rule of particular 

applicability that only applies to a 

single named facility. 

M. Judicial Review 

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 June 6, 2022. Filing a petition 

for reconsideration by the Administrator 

of this final rule does not affect the 

finality of this action for 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 CAA 

section 307(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Sulfur oxides. 

Michael S. Regan, 

Administrator. 

40 CFR part 52 is 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) * * * 


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1The September 1, 2020, submittal contains 

changes to other SIP-approved rules that are not 

addressed in this notice. EPA will be acting on 

those rules separately. 2EPA approved the PCP definition into the SIP, 

with the exception of subsections (qqqq)1. and 

(qqqq)3.–8., on May 29, 2020. See 85 FR 32300. 3SIP-approved Rule 391–3–1–.03(6)(i)3 states 

‘‘Cumulative modifications not covered in an 

existing permit to an existing permitted facility 

Continued 

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.

4/5/2022 5/5/2022 [insert Federal Register citation], 4/5/2022.

(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 5/5/2022 [insert Federal Register citation], 5/5/2022.Excluding provisions disapproved on April 6, 

2012, 77 FR 20894. 

§ 52.1825 [Removed and Reserved] 

■ 3. Remove and reserve § 52.1825. 

[FR Doc. 2022–06904 Filed 4–4–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2020–0702; FRL–9537–02– 

R4] 

Air Plan Approval; Georgia; Air Quality 

Control, Miscellaneous Rule Revisions 

to Definitions and Permitting 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving changes to 

the Georgia state implementation plan 

(SIP) submitted on behalf of the State of 

Georgia by the Georgia Environmental 

Protection Division (GA EPD) through a 

letter dated September 1, 2020. This 

revision includes changes to the State’s 

air quality regulations incorporated into 

the SIP by changing the definition of 

‘‘pollution control project’’ and making 

minor changes to the corresponding 

minor new source review (NSR) 

permitting regulations for consistency. 

EPA is approving this SIP revision 

because the State has demonstrated that 

these changes are consistent with the 

Clean Air Act (CAA or Act). 

DATES: This rule is effective May 5, 

2022. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2020–0702. All documents in the docket 

are listed on the www.regulations.gov 

website. Although listed in the index, 

some information may not be publicly 

available, i.e., Confidential Business 

Information 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 either electronically through 

www.regulations.gov or in hard copy at 

the Air Regulatory Management Section, 

Air Planning and Implementation 

Branch, Air and Radiation Division, 

U.S. Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW, Atlanta, 

Georgia 30303–8960. EPA requests that 

if at all possible, you contact the person 

listed in the FOR FURTHER INFORMATION

CONTACT section to schedule your 

inspection. The Regional Office’s 

official hours of business are Monday 

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

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Pearlene Williams-Miles, Air Regulatory 

Management Section, Air Planning and 

Implementation Branch, Air and 

Radiation Division, U.S. Environmental 

Protection Agency, Region 4, 61 Forsyth 

Street SW, Atlanta, GA 30303–8960. 

The telephone number is (404) 562– 

9144. Ms. Williams-Miles can also be 

reached via electronic mail at 

WilliamsMiles.Pearlene@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

EPA is approving a SIP revision 

submitted on behalf of the State of 

Georgia by GA EPD through a letter 

dated September 1, 2020.1 This revision 

changes the definition of ‘‘pollution 

control project’’ (PCP) at Georgia Rule 

391–3–1–.01(qqqq) and the scope of the 

corresponding permitting provisions 

related to PCPs at Rule 391–3–1–.03(6), 

‘‘Exemptions,’’ at subsection (j). 

Pursuant to Rule 391–3–1–.03(6)(j),2

PCPs are exempt from the requirement 

to obtain a minor source construction 

permit under Georgia Rule 391–3–1– 

.03(1), ‘‘Construction (SIP) Permits.’’ 

The submittal first changes the 

definition of PCP to require that any 

collateral emissions increase from a PCP 

must be lower than the emissions 

thresholds established to exempt 

cumulative modifications at Rule 391– 

3–1–.03(6)(i)3.(i)–(v) from minor source 

construction permitting.3 Secondly, the 


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