2026-18290: Air Plan Approval; Reconsideration and Repeal of Air Plan Partial Approval and Partial Disapproval of North Dakota's Regional Haze State Implementation Plan for the Second Implementation Period

A. History of the Regional Haze Program

In the 1977 CAA amendments, Congress created a program for protecting visibility in the nation's mandatory Class I Federal areas, which include certain national parks and wilderness areas.\3\ \4\ The CAA establishes as a national goal the ``prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution.'' \5\ --------------------------------------------------------------------------- \3\ Areas statutorily designated as mandatory Class I Federal areas consist of national parks exceeding 6,000 acres, wilderness areas and national memorial parks exceeding 5,000 acres, and all international parks that were in existence on August 7, 1977. See CAA section 162(a). There are 156 mandatory Class I areas. The list of areas to which the requirements of the visibility protection program apply is in 40 CFR part 81, subpart D. \4\ See CAA section 169A. \5\ Id. at (a)(1). --------------------------------------------------------------------------- Regional haze is visibility impairment that is produced by a multitude of anthropogenic sources and activities that are located across a broad geographic area and that emit pollutants that impair visibility. Visibility impairing pollutants include fine and coarse particulate matter (PM) (e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil dust) and their precursors (e.g., sulfur dioxide (SO2), nitrogen oxides (NOX), and, in some cases, volatile organic compounds (VOC) and ammonia (NH3)). Fine particle precursors react in the atmosphere to form fine particulate matter (PM2.5), which impairs visibility by scattering and absorbing light. Visibility impairment reduces the perception of clarity and color, as well as visible distance.\6\ --------------------------------------------------------------------------- \6\ There are several ways to measure the amount of visibility impairment, i.e., haze. One such measurement is the deciview, which is the principal metric used by the RHR. Under many circumstances, a change in one deciview will be perceived by the human eye to be the same on both clear and hazy days. The deciview is unitless. It is proportional to the logarithm of the atmospheric extinction of light, which is the perceived dimming of light due to its being scattered and absorbed as it passes through the atmosphere. Atmospheric light extinction (b\ext\) is a metric used for expressing visibility and is measured in inverse megameters (Mm-1). The formula for the deciview is 10 ln (b\ext\)/10 Mm-1). See 40 CFR 51.301. --------------------------------------------------------------------------- To address regional haze visibility impairment, the 1999 RHR established an iterative planning process that requires States containing Class I areas and States containing sources whose emissions ``may reasonably be anticipated to cause or contribute to any impairment of visibility'' in a Class I area in another State to periodically submit SIP revisions to address such impairment.\7\ --------------------------------------------------------------------------- \7\ See CAA section 169A(b)(2); see also 40 CFR 51.308(b), (f) (establishing submission dates for iterative regional haze SIP revisions); (64 FR 35714, at 35768 (July 1, 1999)). --------------------------------------------------------------------------- On January 10, 2017, the EPA promulgated revisions to the RHR (82 FR 3078, January 10, 2017) that apply for the second and subsequent implementation periods. The reasonable progress requirements as revised by the 2017 rule (referred to here as the 2017 RHR Revisions) are codified at 40 CFR 51.308(f).

B. Roles of Agencies in Addressing Regional Haze

Because the air pollutants and pollution affecting visibility in Class I areas can be transported over long distances, successful implementation of the regional haze program requires long-term, regional coordination among multiple jurisdictions and agencies that have responsibility for Class I areas and the emissions that impact visibility in those areas. To address regional haze, States need to develop strategies in coordination with one another, considering the effect of emissions from one jurisdiction on the air quality in another. Five regional planning organizations (RPOs), which include representation from State and Tribal governments, EPA, and FLMs, were developed in the lead-up to the first implementation period to address regional haze. RPOs evaluate technical information to better understand how emissions from State and Tribal land impact Class I areas across the country, pursue the development of regional strategies to reduce emissions of particulate matter and other pollutants leading to regional haze, and help States meet the consultation requirements of the RHR. The Western Regional Air Partnership (WRAP), one of the five regional planning organizations described in the previous paragraph, is a collaborative effort of State governments, local air agencies, Tribal governments, and various federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility, and other air quality issues in the Western United States. Members include the States of Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, Wyoming, and 28 Tribal governments.\8\ The federal partner members of WRAP are EPA, U.S. National Parks Service (NPS), U.S. Fish and Wildlife Service (USFWS), U.S. Forest Service (USFS), and the Bureau of Land Management (BLM). --------------------------------------------------------------------------- \8\ A full list of WRAP membership agencies is available at https://www.westar.org/wrap-council-members/. --------------------------------------------------------------------------- The WRAP formed a workgroup to develop a planning framework for State regional haze second implementation period SIPs. The WRAP produced a technical system to support regional modeling of visibility impacts at Class I areas across the West that was based on emissions and monitoring data supplied by its membership. The WRAP Technical Support System (TSS) consolidated air quality monitoring data, meteorological and receptor modeling data analyses, emissions inventories and projections, and gridded air quality/visibility regional modeling results. The TSS is accessible by member States and allows for the creation of maps, figures, and tables to export and use in State plan development. It also maintains the original source data for verification and further analysis. North Dakota collaborated with the WRAP on various aspects of the State's 2022 SIP submission which informed the development of its long-term strategy. This included the identification of Class I areas outside of North Dakota that may be affected by sources in the State, source selection, analysis of air quality monitoring data, preparation of emission inventories, development of reasonable progress goals, and air quality modeling.

C. Status of North Dakota's Regional Haze Plan for the First

Implementation Period The CAA requires that regional haze plans for the first implementation period (2008 through 2018) include, among other things, a long-term strategy for making reasonable progress and best available retrofit technology (BART) [[Page 57305]] requirements for certain older stationary sources, where applicable.\9\ --------------------------------------------------------------------------- \9\ Requirements for regional haze SIPs for the first implementation period are also contained in CAA section 169A(b)(2). --------------------------------------------------------------------------- The governor of North Dakota submitted North Dakota's Regional Haze SIP for the first implementation period to the EPA on March 3, 2010, followed by SIP Supplement No. 1 submitted on July 27, 2010, and SIP Amendment No. 1 submitted on July 28, 2011 (collectively, the ``2010 Regional Haze SIP''). On April 6, 2012, the EPA promulgated a final rule titled ``Approval and Promulgation of Implementation Plans; North Dakota; Regional Haze State Implementation Plan; Federal Implementation Plan for Interstate Transport of Pollution Affecting Visibility and Regional Haze; Final Rule'' (2012 Final Rule).\10\ The 2012 Final Rule approved in part and disapproved in part the State's 2010 Regional Haze SIP. The EPA's disapproval included portions of the plan that addressed reasonable progress requirements and North Dakota's BART determinations for Coal Creek Station (Coal Creek) Units 1 and 2 and Antelope Valley Station (Antelope Valley) Units 1 and 2. In the same rulemaking, the EPA promulgated a federal implementation plan (FIP) that imposed, among other things, a NOX emission limit for Antelope Valley Units 1 and 2, and a NOX BART determination and emission limit for Coal Creek Units 1 and 2. --------------------------------------------------------------------------- \10\ 77 FR 20894 (Apr. 6, 2012). --------------------------------------------------------------------------- Subsequently, North Dakota and other petitioners challenged the 2012 Final Rule in the United States Court of Appeals for the Eighth Circuit, resulting in a September 23, 2013, vacatur and remand. On January 2, 2013, North Dakota submitted a SIP revision to the EPA to provide additional information supporting its original NOX BART determination for Coal Creek.\11\ On September 23, 2013, the Eighth Circuit concluded in North Dakota v. EPA that the EPA properly disapproved portions of the 2010 Regional Haze SIP, including the reasonable progress determination for Antelope Valley Units 1 and 2.\12\ The Eighth Circuit also upheld the EPA's FIP promulgating an emission limit of 0.17 pounds per million British thermal units (lb/ MMBtu) NOX (30-day rolling average) for Antelope Valley Units 1 and 2.\13\ However, the Eighth Circuit vacated and remanded the EPA's FIP promulgating an emission limit of 0.13 lb/MMBtu NOX (30-day rolling average) for Coal Creek.\14\ --------------------------------------------------------------------------- \11\ North Dakota referred to the January 2, 2013 SIP submission as ``Supplement No. 2.'' EPA herein refers to North Dakota's January 2, 2013 submission as a SIP submission. \12\ North Dakota v. EPA, 730 F.3d 750, 766 (8th Cir. 2013). \13\ Id. \14\ Id. at 764. --------------------------------------------------------------------------- Several SIP submissions from North Dakota and subsequent EPA actions for the first implementation period followed the Eighth Circuit's decision. On January 12, 2015, North Dakota submitted a SIP revision for a regional haze five-year progress report, pursuant to 40 CFR 51.308(g). On April 26, 2018, the EPA proposed to approve the Coal Creek NOX BART determination submitted in North Dakota's January 2013 SIP submission.\15\ The EPA did not finalize that action and North Dakota subsequently withdrew the Coal Creek Station NOX BART portion of the 2013 submission as is further explained in Section D below.16 17 On August 3, 2020, North Dakota submitted a SIP revision to incorporate the 2012 FIP requirements for Antelope Valley, which the EPA approved on April 5, 2022.\18\ In the same action, the EPA withdrew from the CFR the FIP requirements for Coal Creek that the Eighth Circuit vacated in North Dakota v. EPA. --------------------------------------------------------------------------- \15\ 83 FR 18248 (Apr. 26, 2018). \16\ North Dakota's 2022 SIP submission, Letter from North Dakota Governor Doug Burgum to EPA Administrator Michael Regan. \17\ As explained in this document in section II.D., North Dakota subsequently withdrew the Coal Creek Station NOX BART portion of its 2013 SIP submission in its 2022 SIP submission to the EPA that included a revised NOX BART determination for Coal Creek. On March 10, 2026, the EPA approved the Coal Creek Station NOX BART portion of the 2022 SIP submission as well as North Dakota's 5-year progress report. \18\ 87 FR 19635 (Apr. 5, 2022). ---------------------------------------------------------------------------

D. North Dakota's Regional Haze Plan for the Second Implementation

Period In accordance with CAA section 169A and the RHR at 40 CFR 51.308(f), on August 11, 2022, the governor of North Dakota submitted North Dakota's 2022 SIP submission to address the State's regional haze obligations for the second implementation period, which continues through 2028. Concurrently, North Dakota also withdrew its 2013 SIP submission that addressed NOX BART for Coal Creek.\19\ North Dakota's 2022 SIP submission provided an updated submission addressing the first implementation period NOX BART determination for Coal Creek that was remanded in North Dakota v. EPA. The EPA approved the Coal Creek NOX BART portion of North Dakota's 2022 SIP submission on March 10, 2026.\20\ The remaining portion of the 2022 SIP submission, addressing North Dakota's second implementation period obligations, is addressed below. --------------------------------------------------------------------------- \19\ North Dakota refers to its January 2, 2013, SIP submission as SIP Supplement No. 2. \20\ 91 FR 11474 (Mar. 10, 2026). ---------------------------------------------------------------------------

A. North Dakota's Long-Term Strategy Under CAA 169A and 40 CFR

51.308(f)(2) The EPA is proposing to approve North Dakota's long-term strategy for the second implementation period. As explained in other recent actions \50\ and in subsection (1)(b) below, the EPA's URP policy is that so long as the Class I areas impacted by a State are below the URP and the State considers the four statutory factors, the State will have presumptively demonstrated it has made reasonable progress for the second implementation period for that area. This policy was not in place at the time of the EPA's partial approval/partial disapproval in 2024. As detailed in this preamble, the EPA finds that North Dakota has met the requirements of CAA 169A(b)(2) and 40 CFR 51.308(f)(2). Within its SIP, North Dakota evaluated and determined the emission reduction measures that are necessary to make reasonable progress by considering the four statutory factors. They also projected that 2028 visibility conditions are all below the 2028 URP for Class I areas in North Dakota and for areas affected by emissions from North Dakota sources. Therefore, the EPA is proposing to conclude that North Dakota's long- term strategy contains the enforceable emission limitations, compliance schedules, and other measures that are necessary to make reasonable progress. --------------------------------------------------------------------------- \50\ See 90 FR 20425, at 20434 (May 14, 2025), 90 FR 22033, at 22043 (May 23, 2025); 90 FR 22166, at 22185; (May 23, 2025); 90 FR 25944, at 25952 (June 18, 2025); 90 FR 25975, at 25980 (June 18, 2025); 90 FR 29737, at 29738 (July 7, 2025); 90 FR 34792, at 34796 (July 24, 2025); 90 FR 36005, at 36017 (July 31, 2025); 90 FR 40272, at 40287 (Aug. 19, 2025); 90 FR 43030, at 43038 (Sept. 5, 2025); 90 FR 42833, at 42834 (Sept. 5, 2025); 90 FR 43958, at 43966 (Sept. 11, 2025); 90 FR 46070 (Sept. 25, 2025); 90 FR 48481, at 48496 (Oct. 23, 2025); 90 FR 48855, at 48859 (Oct. 30, 2025); 90 FR 54586 (Nov. 28, 2025); 90 FR 57636, at 57637 (Dec. 11, 2025); 91 FR 5321, at 5322 (Feb. 6, 2026); 91 FR 6581, at 6590 (Feb. 12, 2026). --------------------------------------------------------------------------- Each State having a Class I area within its borders, or emissions that may affect visibility in any Class I area outside the State must develop a long-term strategy for making reasonable progress towards the national visibility goal for each impacted Class I area.\51\ As explained in the II. Background section of this document, reasonable progress is achieved when all States contributing to visibility impairment in a Class I area are implementing the measures that have been determined necessary to make reasonable progress through consideration of the four statutory factors.\52\ Each State's long-term strategy must include the enforceable emission limitations, compliance schedules, and other measures that are necessary to make reasonable progress.\53\ After considering the four statutory factors, all measures that are determined to be necessary to make reasonable progress must be incorporated into the long-term strategy. In developing its long-term strategy, a State must also consider the five additional factors in 40 CFR 51.308(f)(2)(iv). As part of its reasonable progress determinations, the State must describe the criteria used to determine which sources, or group of sources, were evaluated (i.e., subject to four-factor analysis) for the second implementation period and how the four statutory factors were taken into consideration in selecting the emission reduction measures for inclusion in the long-term strategy.\54\ --------------------------------------------------------------------------- \51\ See CAA section 169A(b)(2)(B). \52\ See 40 CFR 51.308(f)(2)(i). \53\ See 40 CFR 51.308(f)(2). \54\ See 40 CFR 51.308(f)(2)(iii). ---------------------------------------------------------------------------

1. North Dakota's Long-Term Strategy Four-Factor Analysis

a. Summary of North Dakota's Long-Term Strategy Four-Factor Analysis As detailed below, the EPA is proposing to approve North Dakota's long-term strategy because North Dakota's 2022 SIP submission meets CAA and RHR requirements. As detailed in North Dakota's 2022 SIP submission, North Dakota determined that existing measures for Otter Tail Power Company--Coyote Station, Basin Electric Power Cooperative-- Antelope Valley Station, Basin Electric Power Cooperative--Leland Olds Station, Coal Creek Station, Minnkota--Milton R. Young Station, Montana Dakota Utilities--Heskett Station, Petro-Hunt, L.L.C.--Little Knife Gas Plant, Hess Tioga Gas Plant, LLC--Tioga Gas Plant, Northern Border Compressor Station No. 4, and Dakota Gasification Company--Great Plains Synfuels Plant comprise what is necessary to make reasonable progress based on an analysis of the four statutory factors.\55\ As a result of the evaluation, North Dakota did not find it reasonable to require additional emission limitations, compliance schedules, or control measures at the selected sources. --------------------------------------------------------------------------- \55\ North Dakota's 2022 SIP submission, section 5.2. --------------------------------------------------------------------------- Under 40 CFR 51.308(f)(2)(i), SIP submittals must include a description of the criteria a State used to determine which sources, or groups of sources, to evaluate through four-factor analysis. In its 2022 SIP submission, North Dakota focused its control strategy analysis for the second implementation period on emissions of NOX and SO2.\56\ NOX and SO2 are the two primary pollutants that react to form ammonium nitrates and ammonium sulfates, the primary visibility impairing pollutants that affect visibility at Class I areas in North Dakota on the most impaired days.\57\ In North Dakota, point sources are the largest contributors to SO2 and NOX.\58\ Thus, North Dakota focused primarily on existing point sources in this implementation period. --------------------------------------------------------------------------- \56\ North Dakota's 2022 SIP submission, section 5.1. \57\ Id. \58\ Id. --------------------------------------------------------------------------- For purposes of source selection, North Dakota utilized a Q/d metric. The Q/d screening metric uses a source's annual emissions in tons (Q) divided by the distance in kilometers (d) between the source and the nearest Class I area, along with a reasonably selected threshold for this metric. The larger the Q/d value, the greater the source's expected effect on visibility in each associated Class I area. Using a Q/d threshold of 10,\59\ North Dakota selected ten facilities for four-factor analysis: Coyote Station, Antelope Valley, Milton R. Young Station, Coal Creek Station, Leland Olds Station, Heskett Station, Little Knife Gas Plant, Tioga Gas Plant, Northern Border Compressor Station #4, [[Page 57309]] and Great Plains Synfuels Plant.\60\ North Dakota required each of these facilities to submit a report detailing available emission control measures. Section 5.2 of North Dakota's 2022 SIP submission contains North Dakota's evaluation of the four statutory factors for each source and North Dakota's determinations of the source-specific emission reduction measures necessary to make reasonable progress. --------------------------------------------------------------------------- \59\ The Q/d threshold of ``10'' is based on the Federal Land Managers' Air Quality Related Values Work Group (FLAG) report that was issued in October 2010 that adopts similar criteria derived from EPA's 2005 Best Available Retrofit Technology (BART) guidelines for the Regional Haze Rule. See Federal Land Managers' Air Quality Related Values Work Group (FLAG) Phase I Report--Revised (2010), Background Information on Thresholds: https://irma.nps.gov/DataStore/DownloadFile/420352. \60\ North Dakota's 2022 SIP submission, section 5.1.2. --------------------------------------------------------------------------- b. EPA's Evaluation of North Dakota's Long-Term Strategy Four-Factor Analysis Based on the EPA's review, the EPA finds that North Dakota's 2022 SIP submission satisfies the requirements under 51.308(f)(2)(i) because North Dakota selected 10 point sources, evaluated the four statutory factors, and determined the emission reductions necessary to make reasonable progress as described in section IV.A.1.a. of this document. As discussed earlier in this preamble, CAA section 169A(b)(2) requires each State to have a plan for making reasonable progress toward the national visibility goal. CAA section 169A(g)(1) specifies: ``[I]n determining reasonable progress there shall be taken into consideration the costs of compliance, the time necessary for compliance, and the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements.'' \61\ The RHR implements this statutory requirement in 40 CFR 51.308(f) for the second and subsequent implementation periods for regional haze. 40 CFR 51.308(f) requires States to submit a long-term strategy that addresses regional haze visibility impairment for each mandatory Class I area within the State and for each mandatory Class I area located outside the State that may be affected by emissions from the State. 40 CFR 51.308(f)(2)(i) lays out the CAA 169A four statutory factor criteria for the evaluation and development of the long-term strategy. --------------------------------------------------------------------------- \61\ The EPA refers to the CAA section 169A(g)(1) requirements as the four statutory factors. --------------------------------------------------------------------------- With respect to source selection, North Dakota used the 2012-2016 average annual emissions of NOX and SO2 in tons divided by distance in kilometers between a source and the nearest Class I area as a surrogate for baseline visibility impact (Q/d). Applying this protocol, North Dakota selected the 10 point sources identified above for analysis. As stated in section IV.A.1.a., 40 CFR 51.308(f)(2)(i) requires that a State's SIP submission include a ``description of the criteria it used to determine which sources or groups of sources it evaluated,'' and 40 CFR 51.308(f)(2)(iii) requires that it must be appropriately documented. Because North Dakota provided a detailed description of the technical information \62\ used to select a reasonable set of sources for a four-factor analysis, the EPA finds that North Dakota's source selection was reasonable and consistent with the requirements of 40 CFR 51.308(f)(2).\63\ Based upon the analysis, North Dakota's 2022 SIP submission does not require additional emission control measures to make reasonable progress. --------------------------------------------------------------------------- \62\ Technical information provided included facilities' recent average annual emissions of SO2 and NOX and distance to the nearest Class I area. This is known as Q/d, where the ``Q'' represents emissions in tons, and ``d'' represents distance in kilometers. See Chapter 5 and table 35 in the 2022 SIP submission. \63\ North Dakota's 2022 SIP submission, section 5.1.2. --------------------------------------------------------------------------- In the EPA's 2024 partial approval/partial disapproval action, the EPA concluded that North Dakota had improperly relied on the visibility impact of controls to reject controls at Coyote Station and Antelope Valley, that North Dakota rejected controls without providing adequate justification at Coal Creek and Leland Olds, and that North Dakota had not adequately considered the time necessary for compliance factor in its evaluation of additional NOX controls at Coal Creek.\64\ As explained below, based on the EPA's updated policy, the EPA proposes to reconsider and reverse the 2024 disapproval of North Dakota's long- term strategy in this action. --------------------------------------------------------------------------- \64\ 89 FR 56693, at 56705 (July 10, 2024); Finalized at 89 FR 95126 (Dec. 2, 2024). --------------------------------------------------------------------------- As explained in other recent actions \65\ and more specifically in this section below, the EPA's recently implemented policy is that so long as the Class I areas impacted by a State are below the URP and the State considers the four statutory factors, the State will have presumptively demonstrated it has made reasonable progress for the second implementation period for that area. The EPA believes this policy recognizes the considerable improvements in visibility impairment that have been made by a wide variety of State and Federal programs in recent decades. When the 2028 URP is adjusted for wildland prescribed fire and international anthropogenic impacts, all of the Class I areas impacted by North Dakota are below the 2028 URP.\66\ --------------------------------------------------------------------------- \65\ See 90 FR 20425, at 20434 (May 14, 2025), 90 FR 22033, at 22043 (May 23, 2025); 90 FR 22166, at 22185; (May 23, 2025); 90 FR 25944, at 25952 (June 18, 2025); 90 FR 25975, at 25980 (June 18, 2025); 90 FR 29737, at 29738 (July 7, 2025); 90 FR 34792, at 34796 (July 24, 2025); 90 FR 36005, at 36017 (July 31, 2025); 90 FR 40272, at 40287 (Aug. 19, 2025); 90 FR 43030, at 43038 (Sept. 5, 2025); 90 FR 42833, at 42834 (Sept. 5, 2025); 90 FR 43958, at 43966 (Sept. 11, 2025); 90 FR 46070 (Sept. 25, 2025); 90 FR 48481, at 48496 (Oct. 23, 2025); 90 FR 48855, at 48859 (Oct. 30, 2025); 90 FR 54586 (Nov. 28, 2025); 90 FR 57636, at 57637 (Dec. 11, 2025); 91 FR 5321, at 5322 (Feb. 6, 2026); 91 FR 6581, at 6590 (Feb. 12, 2026). \66\ WRAP TSS; Colorado State University (CSU) and the Cooperative Institute for Research in the Atmosphere (CIRA), 25 Mar 2026, https://views.cira.colostate.edu/tssv2. --------------------------------------------------------------------------- Based on a reevaluation of the 2022 SIP submission under the new URP policy, the EPA finds that North Dakota's four-factor analyses and control determinations at Coyote Station, Antelope Valley, Coal Creek, and Leland Olds are reasonable and the EPA agrees with North Dakota's conclusion that no additional emission control measures are necessary to include in North Dakota's long-term strategy. Additionally, within this preamble the EPA finds that North Dakota properly evaluated the time necessary for compliance factor in its analysis of potential NOX controls for reasonable progress at Coal Creek because their analysis included compliance schedules, such as the installation schedule, for the selected controls. The selected LNC3+ control was installed at Unit 2 in 2007 and at Unit 1 in 2020.\67\ Thus, the EPA finds that North Dakota adequately considered the time necessary for the compliance factor in its analysis of potential controls at Coal Creek since the control measures were installed in prior years. --------------------------------------------------------------------------- \67\ North Dakota's 2022 SIP submission, Appendix F.1-2. The EPA also notes a statement from the 2019 Guidance that discusses how the time necessary for compliance factor should be used in decision making: ``We recommend that states consider the time necessary for compliance as part of their determination of what compliance deadlines for selected control measures are reasonable, rather than as part of their determination whether to adopt the control measures in the first instance'' (2019 Guidance at 41). --------------------------------------------------------------------------- With respect to the EPA's application of the URP policy, the EPA has the discretion and authority to change policy. In FCC v. Fox Television Stations, Inc., the U.S. Supreme Court plainly stated that an agency is free to change a prior policy and ``need not demonstrate . . . that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be [[Page 57310]] better.'' \68\ The EPA believes that its recently adopted policy aligns with the purpose of the statute and RHR, which is achieving ``reasonable'' progress, not maximal progress, toward Congress' natural visibility goal. --------------------------------------------------------------------------- \68\ See 556 U.S. 502, 515 (2009) (referencing Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)). See also Perez v. Mortgage Bankers Assn., 135 S. Ct. 1199 (2015). --------------------------------------------------------------------------- In the 2017 RHR Revisions, the EPA addressed the role of the URP as it relates to a State's development of its second implementation period SIP.\69\ Specifically, in response to comments suggesting that the URP should be considered a ``safe harbor'' that relieve States of any obligation to consider the four statutory factors, the EPA explained that the URP was not intended to be such a safe harbor.\70\ ``Some commenters stated a desire for corresponding rule text dealing with situations where RPGs are equal to (``on'') or better than (``below'') the URP or glidepath. Several commenters stated that the URP or glidepath should be a `safe harbor,' opining that States should be permitted to analyze whether projected visibility conditions for the end of the implementation period will be on or below the glidepath based on on-the-books or on-the-way control measures, and that in such cases a four-factor analysis should not be required.'' \71\ --------------------------------------------------------------------------- \69\ See 82 FR 3078 (Jan. 10, 2017). \70\ Id. at 3099. \71\ Id. --------------------------------------------------------------------------- Other 2017 RHR comments indicated a similar approach, such as ``a somewhat narrower entrance to a `safe harbor,' '' by suggesting that if current visibility conditions are already below the end-of-planning- period point on the URP line, a four-factor analysis should not be required.'' \72\ The EPA stated in its response that the EPA did not agree with either of these recommendations. ``The CAA requires that each SIP revision contain long-term strategies for making reasonable progress, and that in determining reasonable progress States must consider the four statutory factors. Treating the URP as a safe harbor would be inconsistent with the statutory requirement that States assess the potential to make further reasonable progress towards natural visibility goal in every implementation period.'' \73\ --------------------------------------------------------------------------- \72\ Id. \73\ Id. --------------------------------------------------------------------------- However, so long as a State considers the four statutory factors, the presumption that a Class I area below the URP is achieving reasonable progress is consistent with the CAA and RHR. The EPA believes this policy also recognizes the considerable improvements in visibility impairment that have been made by a wide variety of State and Federal programs in recent decades. In sum, North Dakota selected a number of sources, evaluated emissions control measures, and considered the four statutory factors. In addition, visibility conditions at all Class I areas to which North Dakota contributes are below the URP. In light of these facts, the EPA agrees with North Dakota's conclusion that no additional measures are necessary to make reasonable progress during the second implementation period and is proposing to approve the State's SIP submittal.

2. Other Long-Term Strategy Requirements

When developing long-term strategies, States must meet the additional requirements specified in 40 CFR 51.308(f)(2)(ii)-(iv). After reviewing North Dakota's 2022 SIP elements, the EPA finds that North Dakota has satisfied these additional long-term strategy requirements of 40 CFR 51.308(f)(2)(ii)-(iv). 40 CFR 51.308(f)(2)(ii) requires States to consult with other States to develop coordinated emission management strategies when they have emissions that are reasonably anticipated to contribute to visibility impairment in Class I areas across State boundaries. Specifically, 40 CFR 51.308(f)(2)(ii)(A) requires a State to demonstrate that its SIP includes all measures agreed upon during the State-to-State consultations. North Dakota considered additional controls for facilities affecting out of State Class I areas through a four-factor analysis and determined that no additional controls on North Dakota sources are required. 40 CFR 51.308(f)(ii)(B) requires a State to consider emission reduction measures, identified by other States, as being necessary to make reasonable progress in a Class I area. North Dakota did not receive recommendations for any of the sources within the State from other States. Section 2.1 of North Dakota's 2022 SIP submission describes North Dakota's consultation with other States throughout the development of its regional haze plan.\74\ --------------------------------------------------------------------------- \74\ North Dakota's 2022 SIP submission, section 2.1. --------------------------------------------------------------------------- 40 CFR 51.308(f)(2)(iii) requires States to document the technical basis on which it is relying to determine the emission reduction measures that are necessary to make reasonable progress in each impacted mandatory Class I area. This includes modeling, monitoring, costs, engineering, and emissions information. North Dakota relied on WRAP technical information, modeling, and analysis to support development of its long-term strategy. Section 4.1 of North Dakota's 2022 SIP submission describes the emissions inventories and projections North Dakota used in its analysis, including its ``on-the-books'' and ``potential additional controls'' modeling scenarios. 40 CFR 51.308(f)(2)(iv) specifies five additional factors States must consider in developing their long-term strategies. The five additional factors are: emission reductions due to ongoing air pollution control programs, including measures to address reasonably attributable visibility impairment; measures to mitigate the impacts of construction activities; source retirement and replacement schedules; basic smoke management practices for prescribed fire used for agricultural and wildland vegetation management purposes and smoke management programs; and the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the long-term strategy. North Dakota described each of the five additional factors and how it considered those factors in section 5.3.1. to 5.3.5. of its 2022 SIP submission. North Dakota's emission reductions due to ongoing air pollution programs are through State regulations contained in the North Dakota Administrative Code, federal programs such as the Volkswagen Environmental Mitigation Trust, EPA's Diesel Emissions Reductions Act, Acid Rain Program, Tier 3 Motor Vehicle Emission and Fuel Standards, Tier 4 Emission Standards for Nonroad Diesel Engines, Emission Standards for New Nonroad Engines, Heavy Duty Highway Engine and Vehicle Standards, the NOX SIP Call, National Emission Standards for Industrial, Commercial, and Institutional Boilers and Process Heaters, National Emission Standards for Hazardous Air Pollutants, and maximum achievable control technology (MACT) Standards.\75\ North Dakota also listed measures to mitigate the impacts of construction activities, source retirements and replacement schedules, smoke management practices, and the anticipated net impact on visibility due to emissions changes over the long-term strategy period.\76\ --------------------------------------------------------------------------- \75\ North Dakota's 2022 SIP submission, section 5.3.1. \76\ North Dakota's 2022 SIP submission, sections 5.3.2-5.3.5. --------------------------------------------------------------------------- [[Page 57311]]

B. Reasonable Progress Goals

The EPA proposes to find that North Dakota's 2022 SIP submission meets the reasonable progress goal requirements under 40 CFR 51.308(f)(3). Section 51.308(f)(3)(i) requires a State in which a Class I area is located to establish RPGs, one for the most impaired days and one for the clearest days. These RPGs reflect the visibility conditions that will be achieved at the end of the implementation period as a result of the emission limitations, compliance schedules and other measures required under paragraph (f)(2) in States' long-term strategies, as well as implementation of other CAA requirements. After establishing its long-term strategy, North Dakota developed reasonable progress goals for each Class I area for the 20 percent most impaired days and 20 percent clearest days based on the results of 2028 WRAP modeling.\77\ The reasonable progress goals are based on North Dakota's long-term strategy, the long-term strategy of other States that may affect Class I areas in North Dakota, and other CAA requirements. Per 40 CFR 51.308(f)(3)(iv), the EPA must evaluate the demonstrations the State developed pursuant to 40 CFR 51.308(f)(2) to determine whether the State's reasonable progress goals for visibility improvement provide for reasonable progress towards natural visibility conditions. --------------------------------------------------------------------------- \77\ North Dakota's 2022 SIP Submission, section 6. --------------------------------------------------------------------------- Compliance with the reasonable progress goals requirements under 40 CFR 51.308(f)(3) is in part dependent on compliance with the long-term strategy provisions under 40 CFR 51.308(f)(2). Since reasonable progress goals must reflect conditions that are projected to be achieved as a result of the long-term strategy (40 CFR 51.308(f)(3)(i)), it is not possible to approve the reasonable progress goals if the long-term strategy is not approvable. Therefore, in the EPA's 2024 partial approval/partial disapproval of North Dakota's 2022 SIP submission, the EPA disapproved North Dakota's long-term strategy under 51.308(f)(2) and disapproved North Dakota's reasonable progress goals under 51.308(f)(3).\78\ However, as described above, based on the URP policy, the EPA is now proposing to conclude that North Dakota's long-term strategy contains the enforceable emission limitations, compliance schedules, and other measures that are necessary to make reasonable progress. North Dakota projected reasonable progress goals that reflect the visibility conditions that are projected to be achieved by the end of 2028 as a result of those enforceable emissions limitations, compliance schedules, and other measures required under 51.308 (f)(2).\79\ North Dakota projected its reasonable progress goal for Lostwood Wilderness Area at 15.78 deciview impairment in 2028, which is under the adjusted uniform rate of progress of 16.00 deciview impairment.\80\ North Dakota projected its reasonable progress goal for Theodore Roosevelt National Park at 13.56 deciview impairment in 2028, which is under the adjusted uniform rate of progress of 14.43 deciview.\81\ North Dakota showed its reasonable progress goals achieve a faster rate of improvement in visibility than the URP, addressing the requirements of paragraph (f)(3)(ii).\82\ Therefore, since the EPA has determined that North Dakota's long-term strategy and the associated RPGs meet CAA and RHR requirements, the EPA is proposing to approve the RPG component of North Dakota's 2022 SIP submission in this preamble. --------------------------------------------------------------------------- \78\ 89 FR 95127 (Dec. 2, 2024). \79\ North Dakota's 2022 SIP submission, section 6. \80\ North Dakota's 2022 SIP submission, section 6.1.1. \81\ Id. \82\ North Dakota's 2022 SIP submission, section 6.2 and 6.3. ---------------------------------------------------------------------------

C. Requirements for State and Federal Land Manager Coordination

The EPA has determined that North Dakota's long-term strategy meets CAA and RHR requirements, and the SIP meets all of the FLM consultation requirements. Therefore, the EPA is proposing to approve the FLM consultation component of North Dakota's 2022 SIP submission in this action. CAA section 169A(d) requires States to consult with FLMs before holding the public hearing on a proposed regional haze SIP, and to include a summary of the FLMs' conclusions and recommendations in the notice to the public. In addition, the 40 CFR 51.308(i)(2) FLM consultation provision requires a State to provide FLMs with an opportunity for consultation that is early enough in the State's policy analysis of its emission reduction obligation so that information and recommendations provided by the FLMs can meaningfully inform the State's decisions on its long-term strategy. The opportunity for consultation will be deemed to have been early enough if the consultation has taken place at least 120 days prior to holding any public hearing or other public comment opportunity on the implementation plan.\83\ Regardless, the opportunity for consultation must be provided at least sixty days before a public hearing or public comment period at the State level.\84\ Section 51.308(i)(2) lists two substantive topics on which FLMs must be provided an opportunity to discuss with States: assessment of visibility impairment in any Class I area and recommendations on the development and implementation of strategies to address visibility impairment. Section 51.308(i)(3) requires States, in developing their SIPs, to include a description of how they addressed FLM comments. --------------------------------------------------------------------------- \83\ 40 CFR 51.308(i)(ii)(2) and August 20, 2019, Memorandum ``Guidance on Regional Haze State Implementation Plans for the Second Implementation Period,'' from Peter Tsirigotis, Director, to Regional Air Division Directors, Regions 1-10. \84\ Id. --------------------------------------------------------------------------- North Dakota's 2022 SIP submission summarizes the State's consultation and coordination with the FLMs. North Dakota met via video conference with the NPS on November 6, 2020, and December 15, 2020, and with the USFS on November 23, 2020. Upon completing its draft 2022 SIP submission, North Dakota provided it to FLMs for a review and consultation period from September 20, 2021, through November 19, 2021. Additionally, North Dakota held a video conference with the NPS, USFS, and EPA Region 8 staff on November 10, 2021, to discuss the draft and receive feedback from the FLMs. North Dakota received comments from USFS on November 17, 2021, and from the NPS on November 19, 2021.\85\ North Dakota responded to the FLM comments and included the responses in appendix D of its 2022 SIP submission. --------------------------------------------------------------------------- \85\ The USFWS did not comment on North Dakota's 2022 SIP submission. --------------------------------------------------------------------------- Because the EPA disapproved North Dakota's long-term strategy under 51.308(f)(2) and the reasonable progress goals under 51.308(f)(3), the EPA also disapproved North Dakota's FLM consultation under 51.308(i).\86\ While North Dakota did take administrative steps to provide the FLMs the opportunity to review and provide feedback on the State's draft regional haze plan, the EPA could not approve the consultation in that plan because the EPA determined that the plan did not meet the statutory and regulatory requirements of the CAA and the RHR. Therefore, compliance with 40 CFR 51.308(i) is dependent on satisfying the 40 CFR 51.308(f)(2)'s long-term strategy provisions and (f)(3)'s reasonable [[Page 57312]] progress goals provisions. However, as described in section IV.A. of this document and in other recent actions, based on the EPA's URP policy, the EPA is proposing to approve North Dakota's long-term strategy and reasonable progress goals. Because North Dakota evaluated and determined the emission reduction measures that are necessary to make reasonable progress by considering the four statutory factors, and the projected 2028 visibility conditions for Class I areas both in North Dakota and those areas influenced by emissions from North Dakota sources, are all below the 2028 URP, the EPA finds that North Dakota's long-term strategy contains the enforceable emission limitations, compliance schedules, and other measures that are necessary to make reasonable progress. Therefore, since the EPA has determined that North Dakota's long-term strategy meets CAA and RHR requirements, and the SIP meets all of the FLM consultation requirements, the EPA is proposing to approve the FLM consultation component of North Dakota's 2022 SIP submission in this action. --------------------------------------------------------------------------- \86\ 89 FR 95127 (Dec. 2, 2024). ---------------------------------------------------------------------------