The Environmental Protection Agency is proposing to repeal its own 2024 decision rejecting parts of North Dakota's regional haze plan, and the justification rests on an agency policy that did not exist when that decision was made. The proposed rule from EPA Region 8 was published in the Federal Register on Wednesday. Comments must be received on or before October 9.

If finalized, the action would fully approve North Dakota's 2022 state implementation plan for the second regional haze planning period, which runs through 2028. That means no additional emission limits, compliance schedules or control measures at the ten facilities the state reviewed. The agency states plainly in the filing that the action would relieve certain obligations for North Dakota.

The practical stake for the public is visibility at two federally protected areas and the narrow window to weigh in. Haze at Theodore Roosevelt National Park is the difference between seeing the far wall of the badlands and seeing a gray smear where it should be. Anyone who wants that view is considered to have one month.

A Reversal Built on a Policy That Postdates the Denial

In December 2024, EPA partially approved and partially disapproved North Dakota's plan. The agency disapproved three elements: the long-term strategy, the reasonable progress goals and the state's consultation with federal land managers. EPA concluded at the time that North Dakota had improperly relied on the visibility impact of controls to reject them at Coyote Station and Antelope Valley Station, had rejected controls without adequate justification at Coal Creek Station and Leland Olds Station, and had not adequately considered the time needed for compliance at Coal Creek.

The state and several energy companies petitioned for reconsideration in late January and early February of 2025, and filed petitions for review in the Eighth Circuit Court of Appeals. EPA granted reconsideration on April 30, 2025, and the court placed the litigation in abeyance on June 4 while the administrative process ran.

What changed in the interim was agency policy rather than the underlying plan. EPA has since adopted a position that so long as the Class I areas a state affects are projected to be below the uniform rate of progress and the state considered the four statutory factors, that state has presumptively demonstrated reasonable progress for this planning period. In its own words, that policy "was not in place at the time" of the 2024 action.

The uniform rate of progress, usually shortened to URP, is the straight line from measured visibility conditions in the 2000 to 2004 baseline period to natural conditions in 2064. It is a tracking metric, not an enforceable target.

EPA acknowledges the tension directly. When it wrote the current visibility rule in 2017, the agency explicitly rejected commenters' requests to treat the line as a safe harbor that would excuse states from analyzing further controls. The new filing quotes that history, then argues the presumption is still lawful because states must consider the four factors regardless, and cites the Supreme Court's decision in FCC v. Fox Television Stations for the proposition that an agency may change a prior policy. EPA also argues the Clean Air Act calls for reasonable progress, not maximal progress. The proposal was signed by Cyrus M. Western, the Region 8 administrator.

Two Protected Areas and the Numbers Behind Them

North Dakota contains two mandatory Class I federal areas: Theodore Roosevelt National Park and the Lostwood Wilderness Area. Visibility at both is measured in deciviews, a scale built so that a change of one unit looks about the same to the eye whether the sky is clear or hazy.

The state projected a 2028 reasonable progress goal of 13.56 deciviews of impairment at Theodore Roosevelt National Park, against an adjusted uniform rate of progress line of 14.43 deciviews. At Lostwood, the projection is 15.78 deciviews against an adjusted line of 16.00 deciviews. Both sit below the line, which is what triggers the new presumption. Those adjusted figures account for wildland prescribed fire and international anthropogenic impacts, and the underlying measurements come from the IMPROVE visibility monitoring network, whose data are hosted with Colorado State University.

The margin at Lostwood is 0.22 deciviews, and the plan projects conditions in 2028 rather than measuring them.

Ten Facilities Named in the Source Review

North Dakota selected sources for analysis using a screening metric that divides a facility's average annual emissions of nitrogen oxides and sulfur dioxide from 2012 through 2016, in tons, by its distance in kilometers to the nearest Class I area. The state applied a threshold of 10.

That screen produced ten facilities: Coyote Station, operated by Otter Tail Power; Antelope Valley Station and Leland Olds Station, both Basin Electric Power Cooperative; the Milton R. Young Station, operated by Minnkota; Coal Creek Station; the Heskett Station, operated by Montana-Dakota Utilities; the Little Knife Gas Plant, operated by Petro-Hunt; the Tioga Gas Plant, operated by Hess; Northern Border Compressor Station No. 4; and the Great Plains Synfuels Plant, operated by Dakota Gasification.

After evaluating cost of compliance, time for compliance, energy and non-air impacts, and remaining useful life, the state concluded existing measures were sufficient at all ten. EPA is now proposing to agree. The agency separately found North Dakota adequately addressed compliance timing at Coal Creek because the selected combustion controls were installed at Unit 2 in 2007 and at Unit 1 in 2020.

Comment Window, Court Case and Unsettled Questions

Comments go to the federal rulemaking portal under the docket identified in the notice. Readers should note a discrepancy worth checking before filing: the document header lists docket EPA-R08-OAR-2023-0495 while the addresses section directs comments to EPA-R08-OAR-2024-0001. EPA is also specifically inviting comment on its statutory authority to reconsider and repeal the rule it now proposes to undo.

Several outcomes remain unknown. This is a proposal, not a final rule, so nothing is settled. EPA has not indicated when it will act on comments. The Eighth Circuit litigation remains in abeyance and could resume depending on the outcome. It is also unclear whether the National Park Service or the Forest Service, both of which commented on the state plan in 2021, will weigh in during this round. The Fish and Wildlife Service did not comment on the original submission.

For readers who care about park visibility, the useful step now is to read the proposal and file a comment during the 30-day window rather than after. Background on the program is available through EPA's visibility and regional haze page, and current and historical visibility measurements for both areas are public through the IMPROVE monitoring system.

The bottom line is that EPA is proposing to undo a decision it made less than two years ago, on the strength of a policy written after that decision, and the practical effect would be no new pollution controls at ten North Dakota facilities. The scientific record on what causes regional haze is not in dispute here. What is in dispute is how much further progress the law requires when a park is already tracking ahead of a planning line.

What Readers Want to Know

What is EPA actually proposing? To repeal its December 2024 rule that partially disapproved North Dakota's regional haze plan, and instead approve the plan in full. That would mean no additional emission controls at ten facilities.

Which places are affected? Theodore Roosevelt National Park and the Lostwood Wilderness Area in North Dakota, plus Class I areas in other states that North Dakota emissions reach.

Is this a final decision? No. It is a proposed rule open to public comment, with comments due on or before October 9.

How can I comment? Through the federal rulemaking portal at Regulations.gov, using the docket number listed in the notice. Comments cannot be edited or removed once submitted.

What is the uniform rate of progress? A straight line from measured visibility in the 2000 to 2004 baseline to natural conditions in 2064. It is used to track progress and is not an enforceable target.

Does this change any air quality standard that protects health? No. Regional haze rules address visibility in protected federal areas. Health-based national ambient air quality standards are a separate program.

What happens to the court case? Petitions for review filed by North Dakota and several companies remain held in abeyance in the Eighth Circuit while EPA completes reconsideration.