Rule2026-04649
Air Plan Approval; North Dakota; Approval of Air Quality Implementation Plans; Regional Haze State Implementation Plan; Regional Haze Five Year Progress Report and Nitrogen Oxides Best Available Retrofit Technology Determination for Coal Creek Station for the First Implementation Period
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 10, 2026
Effective
April 9, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is approving certain portions of State Implementation Plan (SIP) revisions submitted by the State of North Dakota (North Dakota) on January 12, 2015, and August 11, 2022, to address regional haze. Specifically, the EPA is approving North Dakota's nitrogen oxides (NO<INF>X</INF>) Best Available Retrofit Technology (BART) determination for Coal Creek Station power plant (Coal Creek) for the first implementation period of the regional haze program and North Dakota's five-year regional haze progress report. This action addresses the United States Court of Appeals for the Eighth Circuit's September 23, 2013, vacatur and remand of the portion of EPA's 2012 Regional Haze Federal Implementation Plan (FIP) that promulgated a BART emission limit of 0.13 pounds per million BTU (lb/ MMBtu) NO<INF>X</INF> (30-day rolling average) for Coal Creek. The EPA is taking this action pursuant to the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 91 Issue 46 (Tuesday, March 10, 2026)</title>
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[Federal Register Volume 91, Number 46 (Tuesday, March 10, 2026)]
[Rules and Regulations]
[Pages 11474-11477]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-04649]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2023-0641; FRL-12157-02-R8]
Air Plan Approval; North Dakota; Approval of Air Quality
Implementation Plans; Regional Haze State Implementation Plan; Regional
Haze Five Year Progress Report and Nitrogen Oxides Best Available
Retrofit Technology Determination for Coal Creek Station for the First
Implementation Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving certain
portions of State Implementation Plan (SIP) revisions submitted by the
State of North Dakota (North Dakota) on January 12, 2015, and August
11, 2022, to address regional haze. Specifically, the EPA is approving
North Dakota's nitrogen oxides (NO<INF>X</INF>) Best Available Retrofit
Technology (BART) determination for Coal Creek Station power plant
(Coal Creek) for the first implementation period of the regional haze
program and North Dakota's five-year regional haze progress report.
This action addresses the United States Court of Appeals for the Eighth
Circuit's September 23, 2013, vacatur and remand of the portion of
EPA's 2012 Regional Haze Federal Implementation Plan (FIP) that
promulgated a BART emission limit of 0.13 pounds per million BTU (lb/
MMBtu) NO<INF>X</INF> (30-day rolling average) for Coal Creek. The EPA
is taking this action pursuant to the Clean Air Act (CAA).
DATES: This rule is effective on April 9, 2026.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R08-OAR-2023-0641. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information.
FOR FURTHER INFORMATION CONTACT: Joe Stein, Air and Radiation Division,
EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, Colorado,
80202-1129, telephone number: (303) 312-7078, email address:
<a href="/cdn-cgi/l/email-protection#4e3d3a2b27206024213d2b3e260e2b3e2f60292138"><span class="__cf_email__" data-cfemail="f98a8d9c9097d793968a9c8991b99c8998d79e968f">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.
I. What is being addressed in this document?
The EPA is approving North Dakota's 2015 progress report and the
portion of North Dakota's 2022 SIP submission relating to the first
implementation period \1\ NO<INF>X</INF> BART determination for Coal
Creek. As required by section 169A of the CAA, the Regional Haze Rule
(RHR) calls for state and federal agencies to work together to improve
visibility in 156 national parks and wilderness areas, known as
mandatory Class I Federal areas.\2\ The rule requires states, in
coordination with the EPA, the National Park Service, the Fish and
Wildlife Service, the Forest Service, and other interested parties, to
develop and implement air quality protection plans to reduce the
pollution that causes visibility impairment in mandatory Class I
Federal areas. Visibility impairing pollutants include fine and coarse
particulate matter (PM) (e.g., sulfates, nitrates, organic carbon,
elemental carbon, and soil dust) and their precursors (e.g., sulfur
dioxide (SO<INF>2</INF>), NO<INF>X</INF>, and, in some cases, volatile
organic compounds (VOC) and ammonia (NH<INF>3</INF>)). As discussed in
further detail in our proposed rule, in this document, and in the
[[Page 11475]]
accompanying Response to Comments (RTC) document, the EPA finds that
North Dakota's 2015 progress report and the portion of North Dakota's
2022 SIP submission relating to the first implementation period
NO<INF>X</INF> BART determination for Coal Creek meets all the
statutory and regulatory requirements for the regional haze first
planning period. The State's submission, the proposed rule, and the RTC
document can be found in the docket for this action.
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\1\ EPA uses the terms ``implementation period'' and ``planning
period'' interchangeably.
\2\ See 40 CFR part 81, subpart D.
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II. Summary of the Proposed Action, Public Comments, and EPA's Reasons
for Final Action
On January 12, 2015, North Dakota submitted a SIP revision to
address the regional haze program requirements to submit periodic
progress reports under 40 CFR 51.308(g) and 40 CFR 51.308(h) (2015
progress report). On August 11, 2022, North Dakota submitted a SIP
revision to address regional haze for the second implementation period
and included a revised first implementation period NO<INF>X</INF> BART
determination for Coal Creek, pursuant to CAA section 169A, CAA section
169B, 40 CFR 51.308(e), and 40 CFR part 51, appendix Y (North Dakota's
2022 SIP submission).
On August 14, 2024, the EPA proposed to approve North Dakota's 2015
progress report and the portion of North Dakota's 2022 SIP submission
relating to the first implementation period NO<INF>X</INF> BART
determination for Coal Creek.\3\ Our public comment period closed on
September 13, 2024. The August 14, 2024, proposed rule provided
background on the requirements of the CAA and RHR, a summary of North
Dakota's regional haze SIP submittals and related EPA actions, and
EPA's rationale for its proposed action. That background and rationale
will not be restated in full here, although we briefly summarize the
reasons for our approval of North Dakota's 2015 progress report and the
portion of North Dakota's 2022 SIP submission relating to the first
implementation period NO<INF>X</INF> BART determination for Coal Creek
in the paragraphs that follow.
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\3\ 89 FR 66015 (August 14, 2024).
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The EPA proposed approval for the portion of North Dakota's 2022
SIP submission relating to the updated NO<INF>X</INF> BART
determination for Coal Creek Units 1 and 2, finding that LNC3+\4\ at
0.15 lb/MMBtu (30-day rolling average) constitutes BART for these
units. As an initial matter, we found that the State reasonably
characterized the five factors required in a BART analysis, including
the costs of compliance, energy and non-air quality environmental
impacts of compliance, pollution control equipment at the source, the
remaining useful life of any potentially affected sources, and
visibility improvement resulting from controls. The EPA also found that
North Dakota's revised cost calculation was appropriate, including: (1)
the use of LNC3 \5\ with DryFining\TM\ as a baseline control technology
in cost analysis; (2) the use of baseline NO<INF>X</INF> emission rates
of 0.18 lb/MMBtu for both units based on three-year annual average data
of LNC3 operation on Unit 1; (3) and the use of amortization periods of
20 and 30 years for selective non-catalytic reduction (SNCR) and
selective catalytic reduction (SCR), respectively. We proposed findings
that the State reasonably considered that information, as well as each
of the five BART factors,\6\ in reaching its revised NO<INF>X</INF>
BART determination. After consideration of all five of these factors
and in accordance with the CAA BART requirements in the BART Guidelines
contained within the RHR,\7\ we proposed to approve the State's
determination that LNC3+ at a rate of 0.15 lb/MMBtu (30-day rolling
average) constitutes NO<INF>X</INF> BART for Coal Creek Units 1 and 2.
We also proposed to approve North Dakota's 2015 progress report for
meeting the requirements of 40 CFR 51.308(g) and 40 CFR 51.308(h).
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\4\ LNC3+ is a combination of modified and additional separated
overfire air (SOFA), close-coupled overfire air (COFA), and low-
NO<INF>X</INF> burners (LNB).
\5\ LNC3 is a combination of closed-coupled overfire air (COFA),
separated overfire air (SOFA), and low-NO<INF>X</INF> burners (LNB).
\6\ Coal Creek is subject to 40 CFR part 51, appendix Y:
Guidelines for BART Determinations Under the Regional Haze Rule
because it is a power plant with a greater than 750 MW capacity.
\7\ 40 CFR part 51, appendix Y: Guidelines for BART
Determinations Under the Regional Haze Rule.
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During the public notice and comment period, we received seven
comments on our proposal. Some comments received were in support of
EPA's approval, while others argued in support of disapproval. Some
commenters claim that the EPA erred in finding North Dakota's BART
determination reasonable. Below, we provide a summary and response to
this issue, including commenters' claims that more stringent controls
of LNC3+ w/SNCR and LNC3+ w/SCR should not have been rejected.
In North Dakota's 2022 SIP submission, North Dakota determined that
based on cost of compliance and visibility improvement associated with
potential controls, it would not be reasonable to require SNCR or SCR
when determining a BART emission limit for Coal Creek Units 1 and 2.
Instead, North Dakota determined BART for Units 1 and 2 to be 0.15 lb/
MMBtu associated with the operation of LNC3+. Some commenters argue
that this limit for LNC3+ is less stringent than can be achieved at the
facility and is not approvable as the emission limit required under
BART. As further explained in section VII. of the RTC document, the EPA
finds that given variable unit load and the variable sodium content of
the fuel used by Coal Creek (North Dakota lignite), North Dakota's
selection of a 0.15 lb/MMBtu limit for NO<INF>X</INF> at Coal Creek
Units 1 and 2 is reasonable. Some commenters argue that North Dakota's
selection of LNC3+ for Coal Creek as BART is unreasonable; North Dakota
should have required a more stringent control technology, LNC3+ w/SNCR,
due to its cost effectiveness and visibility benefits; and the BART
example cited by the EPA to support North Dakota's selection of LNC3+
is inappropriate. As further explained in section V. of the RTC
document, the EPA disagrees with the commenters' claim that North
Dakota's determination conflicts with past examples of BART
determinations. Within the RTC, the EPA notes key fact-pattern
differences in the past determinations cited. The EPA also notes that
``each BART determination must be made on a case-by case basis
considering the relevant facts in each case.'' \8\ Ultimately, based on
the information in this document, the associated RTC document available
in the docket to this action, as well as our proposed approval, we find
that it is reasonable for North Dakota to reject a more stringent
emissions limit associated with operation of LNC3+ w/SNCR based on cost
of compliance and visibility improvement.
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\8\ 82 FR 15139, 15144 (March 27, 2017).
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Commenters also argue that North Dakota should have required a more
stringent emission limit associated with operation of LNC3+ w/SCR
because North Dakota improperly calculated cost of compliance and
improperly weighed technical feasibility concerns. As further explained
in the RTC document included in the docket to this action, The EPA
supports North Dakota's determination that LNC3+ w/SCR is not
reasonable due to a high cost of compliance. Further, the EPA finds
that North Dakota provided documentation supporting their concerns
about the technical feasibility of SCR at North Dakota lignite coal
facilities. Additionally, we point to court precedent in support of
North Dakota's arguments on technical feasibility of
[[Page 11476]]
SCR at North Dakota lignite facilities.\9\ The EPA finds that it is
reasonable for North Dakota to reject LNC3+ w/SCR based on concerns
about both cost of compliance and technical feasibility. Thus, the EPA
is finalizing approval of North Dakota's NO<INF>X</INF> BART
determination for Coal Creek Station Units 1 and 2 at a limit of 0.15
lb/MMBtu NO<INF>X</INF> associated with operation of LNC3+. The
comments received are summarized and addressed in full in a separate
RTC document. The full text of comments received is included in the
publicly posted docket associated with this action at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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\9\ ``Order Denying Plaintiff's Motion to Stay and Motion for
Dispute Resolution.'' United States v. Minnkota Power Cooperative,
Inc. (831 F.Supp.2d 1109, D.N.D. 2011).
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III. Final Action
For the reasons stated in the proposed rule, in the RTC document,
and in this document, we are approving North Dakota's 2015 progress
report and the portion of North Dakota's 2022 SIP submission relating
to the first implementation period NO<INF>X</INF> BART determination
for Coal Creek Units 1 and 2. This approval establishes a BART limit of
0.15 lb/MMBtu NO<INF>X</INF> (30-day rolling average) for Coal Creek
Units 1 and 2.
IV. Incorporation by Reference
In this document, the EPA is finalizing regulatory text that
includes incorporation by reference. In accordance with requirements of
1 CFR 51.5, the EPA is finalizing the incorporation by reference of the
SIP amendments described in the amendments to 40 CFR part 52. These
amendments are contained within the Permit to Construct for Coal Creek
Station: ``PTC21001.'' In Sec. 52.1820, the table in paragraph (d) is
amended under the center heading ``Coal Creek Station Units 1 and 2.''
by removing entry ``PTC1005'' and adding the entry ``PTC21001'' in its
place (state effective date: 7/27/2022). The EPA is incorporating the
NO<INF>X</INF> BART emissions limits for Coal Creek Units 1 and 2 (0.15
lb/MMBtu NO<INF>X</INF>) and corresponding monitoring, recordkeeping,
and reporting requirements contained within ``PTC21001.'' The EPA has
made, and will continue to make, these materials generally available
through <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
State Implementation Plan, 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 in the next
update to the SIP compilation.\10\
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\10\ 62 FR 27968 (May 22, 1997).
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V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
<bullet> Is not subject to Executive Order 14192 (90 FR 9065,
February 6, 2025) because it is exempt from review under Executive
Order 12866;
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it disapproves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian Tribe
has demonstrated that a Tribe has jurisdiction. In those areas of
Indian country, the rule does not have Tribal implications and will not
impose substantial direct costs on Tribal governments or preempt Tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
This action is subject to the Congressional Review Act (CRA), and
the EPA will submit a rule report to each House of the Congress and to
the Comptroller General of the United States. This action is not a
``major rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 11, 2026. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Greenhouse gases, Incorporation by reference, Intergovernmental
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 5, 2026.
Cyrus M. Western,
Regional Administrator, Region 8.
For the reasons stated in the preamble, the Environmental
Protection Agency is amending 40 CFR part 52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart JJ-North Dakota
0
2. In Sec. 52.1820, the table in paragraph (d) is amended under the
center heading ``Coal Creek Station Units 1 and 2.'' by removing the
entry ``PTC10005'' and adding the entry ``PTC21001'' in its place to
read as follows:
[[Page 11477]]
Sec. 52.1820 Identification of plan.
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(d) * * *
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State EPA effective Final rule
Rule No. Rule title effective date date citation/date Comments
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Coal Creek Station Units 1 and 2.
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PTC21001..................... Air Pollution 7/27/2022 4/9/2026 91 FR [insert Only: NOX BART
Control Permit Federal emissions
to Construct Register page limits for
for Best where the Units 1 and 2
Available document and
Retrofit begins], 3/10/ corresponding
Technology 2026. monitoring,
(BART). recordkeeping,
and reporting
requirements.
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[FR Doc. 2026-04649 Filed 3-9-26; 8:45 am]
BILLING CODE 6560-50-P
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