[Federal Register Volume 60, Number 172 (Wednesday, September 6, 1995)]
[Rules and Regulations]
[Pages 46222-46228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21879]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[SD6-1-6947a and SD5-1-6191a; FRL-5279-3]


Clean Air Act Approval and Promulgation of State Implementation 
Plan for South Dakota; Revisions to the Air Pollution Control Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA approves the State implementation plan (SIP) revisions 
submitted by the State of South Dakota on November 12, 1993 and March 
7, 1995. EPA is replacing the existing rules approved in the SIP with 
the following chapters of the Administrative Rules of South Dakota 
(ARSD), as requested by the State: 74:36:01-74:36:04, 74:36:06; 
74:36:07, 74:36:10-74:36:13, and 74:36:15, as in effect on January 5, 
1995. The State's submittals included revisions to the State's 
definitions, minor source construction and federally enforceable state 
operating permit (FESOP) rules, source category emission limitations, 
sulfur dioxide (SO2) rules, new source performance standards 
(NSPS), new source review (NSR) requirements for new and modified major 
sources impacting nonattainment areas, and enhanced monitoring and 
compliance certification requirements.
    In addition, EPA is approving the State's construction and 
operating permit program under section 112(l) of the Clean Air Act 
(Act) for the purposes of creating federally enforceable permit 
conditions for sources of hazardous air pollutants (HAPs).

DATES: This final rule is effective on November 6, 1995 unless adverse 
comments are received by October 6, 1995. If the effective date is 
delayed, timely notice will be published in the Federal Register.

ADDRESSES: Copies of the State's submittal and other information are 
available for inspection during normal business hours at the following 
locations: Air Programs Branch, Environmental Protection Agency, Region 
VIII, 999 18th Street, suite 500, 

[[Page 46223]]
Denver, Colorado 80202-2405; South Dakota Department of Environment and 
Natural Resources, Division of Environmental Regulation, Joe Foss 
Building, Pierre, South Dakota 57501; and The Air and Radiation Docket 
and Information Center, 401 M Street, SW, Washington, D.C. 20460.
    Written comments should be addressed to Vicki Stamper, 8ART-AP, 
Environmental Protection Agency, Region VIII, 999 18th Street, suite 
500, Denver, Colorado.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, (303) 293-1765.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 12, 1993, the State of South Dakota submitted revisions 
to its SIP. Specifically, the State requested that the existing State 
rules approved in the SIP be replaced with the most recent codification 
of the ARSD, Chapters 74:36:01-04 and 74:36:06-13 inclusive. In 
addition to recodification, the State made numerous revisions to its 
air quality regulations, including definitions, minor source 
construction and operating permit rules, source category emission 
limitations, NSPS, national emission standards for hazardous air 
pollutants (NESHAPs), NSR requirements for new and modified sources 
impacting nonattainment areas, and other minor revisions.
    In a July 13, 1994 letter, EPA noted many deficiencies in the 
State's November 12, 1993 submittal and requested that the State 
correct the major deficiencies before EPA would proceed with approval. 
The State made those corrections to its rules and submitted the rule 
corrections to EPA on March 7, 1995. In that submittal, the State also 
addressed EPA's July 7, 1994 call for revision of the South Dakota SIP 
to comply with the enhanced monitoring and compliance certification 
program requirements of sections 110, 113, and 114 of the Act. In 
addition, the State adopted other revisions to its rules, including its 
acid rain rules and updates to its incorporation by reference of the 
Federal requirements for NSPS and HAPs.
    The March 7 submittal requested that the previous regulations 
approved in the SIP be replaced with ARSD Chapters 74:36:01-74:36:04, 
74:36:06; 74:36:07, 74:36:10-74:36:13, and 74:36:15, as in effect on 
January 5, 1995. The following State regulations were not included in 
the State's March 7 SIP submittal: ARSD 74:36:05 Operating Permits for 
Part 70 Sources, for which EPA granted interim approval on March 22, 
1995 (see 60 FR 15066-15069); ARSD 74:36:08 National Emission Standards 
for Hazardous Air Pollutants, which the State has taken out of the SIP 
and has instead requested delegation of authority for these standards; 
ARSD 74:36:09 Prevention of Significant Deterioration (PSD), which 
incorporates by reference the corresponding Federal rules at 40 CFR 
52.21 that EPA delegated authority to the State to implement on July 6, 
1994 (see September 15, 1994 Federal Register, 59 FR 47260); ARSD 
74:36:14 Variances, which the State did not include in the SIP because 
such a provision could not be approved as part of the SIP as it is 
inconsistent with section 110(i) of the amended Act; and ARSD 74:36:16 
Acid Rain Program, which will be acted on by EPA separate from this SIP 
approval.
    This document evaluates the State's submittal for conformity with 
the corresponding Federal regulations and the requirements of the Act.

II. This Action

A. Analysis of State Submissions

1. Procedural Background
    The Act requires States to observe certain procedural requirements 
in developing implementation plans and plan revisions for submission to 
EPA. Section 110(a)(2) of the Act provides that each implementation 
plan submitted by a State must be adopted after reasonable notice and 
public hearing. Section 110(l) of the Act similarly provides that each 
revision to an implementation plan submitted by a State under the Act 
must be adopted by such State after reasonable notice and public 
hearing.
    The EPA also must determine whether a submittal is complete and 
therefore warrants further EPA review and action [see section 110(k)(1) 
and 57 FR 13565, April 16, 1992]. The EPA's completeness criteria for 
SIP submittals are set out at 40 CFR part 51, appendix V. The EPA 
attempts to make completeness determinations within 60 days of 
receiving a submission. However, a submittal is deemed complete by 
operation of law under section 110(k)(a)(B) if a completeness 
determination is not made by EPA within six months after receipt of the 
submission.
    The State of South Dakota held public hearings on February 18, 1993 
and November 17, 1994 to entertain public comment on the SIP revisions, 
at which the rule revisions were adopted by the State. These rule 
revisions were formally submitted to EPA for approval in the SIP on 
November 12, 1993 and on March 7, 1995.
    The SIP revisions were reviewed by EPA to determine completeness 
shortly after their submittal, in accordance with the completeness 
criteria referenced above. The submittals were found to be complete, 
and letters dated January 12, 1994 and June 28, 1995 were forwarded to 
the Governor indicating the completeness of the submittals and the next 
steps to be taken in the processing of the SIP submittals.
2. Evaluation of State's Submittals
    The following summarizes the State's submittals and EPA's review 
for approvability:
a. ARSD 74:36:01  Definitions
    The State made numerous revisions to its definitions in ARSD 
74:36:01 in order to make the definitions consistent with other 
provisions in the State's rules and with the corresponding Federal 
regulations, including the State's recently adopted title V permitting 
program in ARSD 74:36:05 and the acid rain program in ARSD 74:36:16.
    EPA has reviewed the definitions included in this chapter against 
the corresponding Federal definitions in 40 CFR parts 51, 60, and 70 
and for conformity with the State's regulations. EPA believes the 
revised definitions are consistent with the corresponding Federal 
definitions, with the following clarifications.
    As discussed in EPA's January 12, 1995 Federal Register notice of 
proposed interim approval of South Dakota's title V program (see 60 FR 
2919), EPA believes clarification regarding two of the State's 
definitions is necessary to ensure that the provisions are interpreted 
consistently with the Federal regulations:
    (1) The definition of ``federally enforceable'' which appears at 
ARSD 74:36:01:01(28) reads as follows:

    ``Federally enforceable,'' all limits and conditions that are 
enforceable by the administrator of EPA pursuant to federal law. 
These limits and conditions include those requirements developed 
pursuant to this article, those appearing in 40 CFR 60 and 61 (July 
1, 1993), requirements within the state implementation plan and 
permit requirements established pursuant to this article or 40 CFR 
51 Subpart I (July 1, 1993). The use of this term does not impede 
the Department's authority under state law to enforce these limits 
and conditions.

    This definition is significant for determining whether a source is 
subject to preconstruction and operating permitting requirements as a 
major source or as a minor source, because it is used in defining the 
``potential to emit'' of a source. To be consistent with EPA's 
definition of ``federally 

[[Page 46224]]
enforceable,'' the second sentence of the above definition cannot and 
should not be read to expand on the first sentence of the definition. 
For example, requirements developed pursuant to ARSD Article 74:36 
might be, but would not necessarily be, federally enforceable. Such 
Federal enforceability would depend on whether such requirements had 
been included in a source's preconstruction or operating permit issued 
under an EPA-approved program, whether such requirements had been 
approved by EPA as part of the SIP, or whether such requirements were 
already considered Federal regulations (such as NSPS promulgated in 40 
CFR part 60 which South Dakota has incorporated by reference in ARSD 
74:36:07). EPA's interpretation is that the requirements delineated in 
the second sentence of the definition are only federally enforceable if 
they are enforceable by the administrator of EPA pursuant to Federal 
law.
    (2) The second sentence of the definition of ``major source'' in 
ARSD 74:36:01:08(1) reads as follows:

    Emissions from any oil exploration or production well and its 
associated equipment and emissions from any pipeline compressor or 
pump station may not be aggregated with emissions from other similar 
units, whether or not such units are in a contiguous area or under 
common control, to determine whether such units or stations are 
major sources.

    To be consistent with the Federal regulations, this sentence must 
be read as only being applicable to a determination of whether a source 
is major under section 112 of the Act. This language cannot be applied 
when determining whether a source is major under other sections of the 
Act.
    With these interpretations, EPA believes the definitions in ARSD 
74:36:01 are consistent with the corresponding Federal regulations. EPA 
is approving all of the definitions in ARSD 74:36:01, with the 
exception of two definitions related to the State's acid rain program 
which EPA will be acting on separately: ``acid rain permit'' and ``acid 
rain program'' in ARSD 74:36:01:01(2) and (3).
b. ARSD 74:36:02  Ambient Air Quality
    This chapter was revised to refer to the Federal regulations for 
the National Ambient Air Quality Standards (NAAQS), methods of sampling 
and analysis, air quality monitoring networks, and ambient air 
monitoring in 40 CFR parts 50, 53, and 58. The State's regulation is 
consistent with the relevant Federal requirements and is approvable.
c. ARSD 74:36:03  Air Quality Episodes
    This chapter was revised to refer to the Federal guidelines for 
emergency episode plans in 40 CFR 51.151-153 and appendix L. The 
State's regulation is consistent with the relevant Federal requirements 
and is approvable.
d. ARSD 74:36:04  Operating Permits for Minor Sources
    This chapter was revised extensively to combine the State's 
existing minor source construction permit and FESOP requirements into 
one permitting system and to ensure compliance with the Federal 
requirements for both construction permit programs and FESOP programs. 
This chapter only applies to sources which are not considered to be 40 
CFR part 70 sources (i.e., sources which are not required to obtain a 
title V operating permit). (Note that the State's construction 
permitting program for new and modified major sources is the State's 
PSD permitting program in ARSD 74:36:09.) Specifically, a new source in 
South Dakota must obtain an operating permit prior to construction, and 
an existing source must obtain a permit in order to operate the source. 
Such operating permits will be valid for five years and must be 
renewed.
    (1) Construction Permit Program.
    The minor source construction permit element of the State's 
permitting program must meet the corresponding Federal requirements in 
40 CFR 51.160-164, in order to be approved by EPA. As detailed in the 
Technical Support Document (TSD) accompanying this notice, EPA believes 
the State's construction permit requirements meet all of the 
corresponding Federal requirements in 40 CFR 51.160-164.
    (2) FESOP Program.
    On June 28, 1989, EPA published criteria for approving and 
incorporating into the SIP regulatory programs for the issuance of 
FESOPs (see 54 FR 27282). Permits issued pursuant to an operating 
permit program approved into the SIP as meeting these criteria may be 
considered federally enforceable. The EPA has encouraged States to 
develop such FESOP programs in conjunction with title V operating 
permit programs to enable sources to limit their potential to emit to 
below the title V applicability thresholds. (See the September 18, 1992 
guidance document entitled, ``Limitation of Potential to Emit with 
Respect to Title V Applicability Thresholds,'' from John Calcagni, 
Director, Air Quality Management Division, Office of Air Quality 
Planning and Standards (OAQPS), Office of Air and Radiation, U.S. EPA.) 
In addition, on November 3, 1993, EPA announced in a guidance document 
entitled, ``Approaches to Creating Federally Enforceable Emissions 
Limits,'' from John S. Seitz, Director, OAQPS, that this mechanism 
could be extended to create federally enforceable limits for emissions 
of HAPs if the program were approved pursuant to section 112(l) of the 
Act. (See Section III. below for further details on EPA's section 
112(l) approval of South Dakota's FESOP program.)
    As detailed in the TSD, EPA has reviewed the State's permitting 
program for conformity with the FESOP criteria outlined in the June 28, 
1989 Federal Register notice and believes the State's program 
adequately meets those requirements, although one clarification 
regarding their rules needs to be made:
    South Dakota's rules do not specifically provide for submittal of 
each proposed and final permit to EPA on a timely basis. However, EPA 
has established procedures in the annual State-EPA agreement requiring 
the State to submit to EPA proposed and final permits which would limit 
the potential to emit of a source so that it would not be considered 
major. EPA reiterates that requirement in this document. That is, for 
any operating permit issued by the State to be considered federally 
enforceable, the State must submit the proposed and final permit to EPA 
in a timely manner, as well as meet all of the other requirements of 
its program and the June 28, 1989 Federal Register.
    Thus, EPA is approving South Dakota's construction permit/FESOP 
program because it adequately meets the requirements of the June 28, 
1989 Federal Register and 40 CFR 51.160-164. Permits issued by the 
State that conform to the State's rules and corresponding Federal 
requirements will be considered federally enforceable. See the TSD 
accompanying this document for further details.
e. ARSD 74:36:06  Regulated Air Pollutants
    In this chapter, the State combined its Control of Particulate 
Emissions regulation previously codified in ARSD 74:26:06 and its 
Control of Sulfur Compound Emissions regulation previously codified in 
ARSD 74:26:07 into one chapter. The State made minor revisions to 
simplify its particulate matter emission regulations, which EPA 
believes are consistent with the Act and approvable.
    In addition, the State made revisions to its regulations 
controlling SO2 emissions in this chapter, as a result of EPA's 
nationwide effort to have SO2 enforceability deficiencies 
identified 

[[Page 46225]]
and corrected in SIPs before title V operating permit programs become 
effective. Because the title V operating permits will initially 
incorporate underlying SIP requirements, it is important that the 
underlying SIP is enforceable so that the permits themselves will be 
enforceable. Thus, on March 8, 1991, EPA provided a list of 
enforceability deficiencies in South Dakota's SO2 emission control 
rules. The Region used the ``SO2 SIP Enforceability Checklist'' 
when reviewing South Dakota's SO2 rules for enforceability 
deficiencies. This checklist was included as an attachment to the 
November 28, 1990 memorandum from Robert Bauman and Rich Biondi to the 
Air Branch Chiefs, and it focused on the following topics:
    (1) Clarity;
    (2) Averaging times consistent with protection of the SO2 
NAAQS;
    (3) Clear compliance determinations;
    (4) Continuous emission monitoring;
    (5) Adequate reporting and recordkeeping requirements;
    (6) Director's discretion issues; and
    (7) Stack height issues.
    The State of South Dakota subsequently adopted revisions to address 
the deficiencies outlined in EPA's March 8, 1991 letter. Those 
revisions include: clarifying the applicability of this chapter to 
include units required to be permitted under article 74:36; specifying 
a 3-hour rolling averaging time, consistent with the SO2 NAAQS, 
for the SO2 emission limitations of this chapter; and referring to 
test methods listed in chapter 74:36:11 and including appropriate 
reference methods in that chapter. Recordkeeping and reporting 
requirements are addressed through the operating permit rules in ARSD 
74:36:05:16.
    EPA believes the State has adequately addressed the SO2 
deficiencies identified in EPA's March 8, 1991 letter. Therefore, EPA 
is approving the State's SO2 regulations.
f. ARSD 74:36:07  New Source Performance Standards
    In this chapter, the State has adopted new NSPS by incorporating by 
reference the Federal NSPS for subparts Dc, QQ, RR, VV, XX, AAA, JJJ, 
NNN, and SSS of 40 CFR part 60, as in effect on July 1, 1993. Also, the 
State updated the incorporation by reference citations of its existing 
NSPS to reflect the July 1, 1993 version of 40 CFR part 60. In 
addition, the State added a provision clarifying that the term 
``administrator,'' as used in the Federal regulations incorporated into 
the State's regulations, means the State except for those authorities 
which cannot be delegated to the State, in which case ``administrator'' 
means both EPA and the State. Since this chapter incorporates by 
reference the Federal NSPS in 40 CFR part 60, it is consistent with 
Federal requirements and approvable.
g. ARSD 74:36:10  New Source Review
    In this chapter, the State adopted provisions for new and modified 
major stationary sources proposing to locate in attainment/unclassified 
areas but which cause or contribute to a violation of the NAAQS, in 
accordance with the requirements in 40 CFR 51.165(b). The State 
currently has no areas designated nonattainment for the NAAQS, so the 
State is currently not required to adopt nonattainment NSR provisions. 
EPA has reviewed the provisions in this chapter against the 
corresponding Federal requirements in 40 CFR 51.165 and found it to be 
consistent and therefore approvable.
h. ARSD 74:36:11  Stack Performance Testing
    This chapter was revised to refer to the Federal test methods in 40 
CFR part 51, appendix M, and 40 CFR part 60 as the test methods 
required to be used by sources and to make other minor revisions. EPA 
has reviewed the revisions to this chapter and has found they are 
consistent with the corresponding Federal requirements and approvable.
i. ARSD 74:36:12  Control of Visible Emissions
    Minor revisions were made to this chapter, mainly to update the 
incorporation by reference of 40 CFR part 60, appendix A to reflect the 
July 1, 1993 version. EPA has reviewed the revisions to this chapter 
and has found they are consistent with the corresponding Federal 
requirements.
j. ARSD 74:36:13  Continuous Emission Monitoring Systems
    (1) Continuous Emission Monitoring Requirements.
    This new chapter was added to authorize the State to require major 
sources to install continuous emission monitors (CEMs) and to require 
that such CEMs meet the Federal performance specifications in 40 CFR 
part 60. EPA has reviewed these requirements adopted in ARSD 
74:36:13:01-05 and has found these rules to be consistent with the 
corresponding Federal requirements and approvable.
    (2) Enhanced Monitoring and Compliance Certification.
    This regulation also address EPA's nationwide SIP call regarding 
the new enhanced monitoring and compliance certification requirements 
of the amended Act. On October 22, 1993, EPA announced in the Federal 
Register that SIP calls pursuant to section 110(k)(5) of the Act would 
be issued in order to implement the enhanced monitoring requirements of 
section 114(a)(3) of the Act and the periodic monitoring requirements 
for operating permits under sections 502(b)(2) and 504 of the Act (see 
58 FR 54677). This SIP call is required because existing SIPs are 
inadequate in that they may be interpreted to limit the types of 
testing or monitoring data that may be used for determining compliance 
and establishing violations.
    On July 7, 1994, the EPA notified the Governor of South Dakota that 
a SIP revision was necessary to meet the aforementioned requirements of 
the Act. EPA's letter provided the States with two options for 
regulatory language that, if adopted by the State and submitted to EPA 
for approval in the SIP, would satisfy the requirements of this SIP 
call. In Sections 74:36:13:06-07 of the ARSD, the State has adopted 
provisions which are essentially identical to the regulatory language 
provided in option 2 of the attachment to EPA's July 7, 1994 letter, as 
follows:
    (a) In ARSD 74:36:13:06, the State has added a provision stating 
that, when submitting compliance certifications, an owner or operator 
of a source may use monitoring as required under 40 CFR 70.6(a)(3) in 
addition to any specified compliance methods. The practical effect of 
this provision is that the SIP is now more flexible and inclusive and 
does not preclude the use of enhanced monitoring.
    (b) In ARSD 74:36:13:07, the State has added provisions stating 
that any credible evidence may be used to determine if a violation has 
occurred at a source. The rule provides that information from 
monitoring methods approved in a federally enforceable operating permit 
or in the SIP, as well as from any other federally enforceable 
monitoring and testing methods (including those in 40 CFR Parts 51, 60, 
61, and 75), may be used by the State as credible evidence to determine 
compliance.
    EPA believes the State has adequately satisfied the requirements of 
that SIP call letter and, therefore, is approving Sections 74:36:13:06-
07 regarding enhanced monitoring and compliance certifications. 

[[Page 46226]]

k. ARSD 74:36:15  Open Burning
    The State made revisions to this chapter by further detailing those 
items that could not be disposed of by open burning, and by providing 
ability for small municipalities to burn solid wastes. Other minor 
revisions were also made. EPA has reviewed the revisions and believes 
they are consistent with the requirements of the Act and approvable.

III. Approval of South Dakota's Construction and Operating Permit 
Program Under Section 112(l) of the Act.

    In this action, EPA is also approving South Dakota's combined 
construction/FESOP permit program in ARSD 74:36:04 under section 112(l) 
of the Act for the purpose of creating federally enforceable limits on 
the potential to emit of HAPs listed pursuant to section 112(b) of the 
Act. Approval under section 112(l) is necessary to allow the State to 
create federally enforceable limits on the potential to emit of HAPs, 
because SIP approval of this permitting program only extends to the 
control of HAPs which are photochemically reactive organic compounds or 
particulate matter. Federally enforceable limits on photochemically 
reactive organic compounds or particulate matter may have the 
incidental effect of limiting certain HAPs.1 As a legal matter, no 
additional program approval by EPA is required in order for these 
``criteria'' pollutant limits to be recognized as federally 
enforceable. However, section 112 of the Act provides the underlying 
authority for controlling all HAP emissions.

    \1\ EPA issued guidance addressing the technical aspects of how 
these criteria pollutant limits may be recognized for purposes of 
limiting a source's potential to emit of HAPs to below section 112 
major source levels. Please refer to the January 25, 1995 EPA policy 
from John Seitz and Robert Van Heuvelen entitled ``Options for 
Limiting the Potential to Emit of a Stationary Source under Section 
110 and Title V of the Clean Air Act,'' available at the EPA office 
listed at the beginning of this document.
    As discussed above and in the TSD, the criteria which are used in 
approving minor source construction permit programs are located in 40 
CFR 51.160-164. EPA believes the most significant criteria in 40 CFR 
part 51 for creating federally enforceable limits through construction 
permits are those in 40 CFR 51.160-162. Further, as discussed in EPA's 
January 25, 1995 memorandum from John S. Seitz, Director of the Office 
of Air Quality Planning and Standards, and Robert I. Van Heuvelen, 
Director of the Office of Regulatory Enforcement, entitled ``Options 
for Limiting the Potential to Emit of a Stationary Source Under Section 
112 and Title V of the Clean Air Act,'' in order for EPA to consider 
any construction permit terms federally enforceable, such permit 
conditions must be enforceable as a practical matter. South Dakota's 
permitting program will allow the State to issue permits that are 
enforceable as a practical matter. Thus, any permits issued in 
accordance with South Dakota's construction permit program and which 
are practically enforceable would be considered federally enforceable.
    EPA believes that the five approval criteria for approving FESOP 
programs into the SIP, as specified in the June 28, 1989 Federal 
Register notice, are also appropriate for evaluating and approving such 
programs under section 112(l). The requirements outlined in the June 
28, 1989 notice need not be unique to criteria pollutants since the 
reason that the notice does not address HAPs is simply that it was 
written prior to the 1990 Amendments to section 112.
    In addition to meeting the criteria in 40 CFR 51.160-164 for 
construction permits and the criteria in the June 28, 1989 Federal 
Register notice for FESOPs, a permitting program that addresses HAPs 
must meet the statutory criteria for approval under section 112(l)(5). 
Section 112(l) allows EPA to approve a program only if it: (1) Contains 
adequate authority to assure compliance with any section 112 standards 
or requirements; (2) provides for adequate resources; (3) provides for 
an expeditious schedule for assuring compliance with section 112 
requirements; and (4) is otherwise likely to satisfy the objectives of 
the Act.
    EPA plans to codify the approval criteria for programs limiting 
potential to emit of HAPs through amendments to subpart E of 40 CFR 
part 63, the regulations promulgated to implement section 112(l) of the 
Act. (See 58 FR 62262, November 26, 1993.) EPA believes it has the 
authority under section 112(l) to approve programs to limit the 
potential to emit of HAPs directly under section 112(l) prior to this 
revision to subpart E of 40 CFR part 63. Given the timing problems 
posed by impending deadlines under section 112 and title V, EPA 
believes it is reasonable to read section 112(l) to allow for approval 
of programs to limit potential to emit prior to promulgation of a rule 
specifically addressing this issue. EPA is therefore approving South 
Dakota's combined construction permit/FESOP program now so that South 
Dakota may begin to issue federally enforceable synthetic minor permits 
as soon as possible. EPA also plans to codify programs approved under 
section 112(l) without further rulemaking once the revisions to subpart 
E are promulgated.
    As discussed in Section II.A.2.d. above and in the TSD, EPA 
believes South Dakota's combined construction permit/FESOP program 
meets the applicable Federal criteria for approval of such programs in 
the SIP. In addition, South Dakota's construction and operating permit 
program meets the statutory criteria for approval under section 
112(l)(5), as follows:
    Regarding the statutory criteria of section 112(l)(5), EPA believes 
South Dakota's permitting program contains adequate authority to assure 
compliance with section 112 requirements since the third criterion of 
the June 28, 1989 notice is met, i.e., since the State's program does 
not provide for waiving any section 112 requirement. Sources that 
become minor through a permit issued pursuant to these programs would 
still be required to meet section 112 requirements applicable to non-
major sources.
    Regarding the requirement for adequate resources, the State has 
committed to provide for adequate resources to implement and enforce 
the program. EPA will monitor the State's implementation of the program 
to assure that adequate resources continue to be available.
    EPA also believes that South Dakota's construction and operating 
permit program provides for an expeditious schedule for assuring 
compliance with section 112 requirements. This program will be used to 
allow a source to establish a voluntary limit on potential to emit so 
as to avoid being subject to a Federal requirement applicable on a 
particular date. Nothing in the State's program would allow a source to 
avoid or delay compliance with the Federal requirement if it fails to 
obtain the appropriate federally enforceable limit by the relevant 
deadline.
    Finally, EPA believes it is consistent with the intent of the 
section 112 and the Act for States to provide a mechanism through which 
sources may avoid classification as a major source by obtaining a 
federally enforceable limit on potential to emit.
    Accordingly, EPA finds that South Dakota's construction permit/
FESOP program satisfies the applicable criteria for establishing 
federally enforceable limitations on potential to emit both criteria 
and hazardous air pollutants. Thus, EPA is approving South Dakota's 
construction permit/FESOP program in ARSD 74:36:04 under section 112(l) 
of the Act. 

[[Page 46227]]


IV. Final Action

    EPA is approving the revisions to the South Dakota SIP which were 
submitted by the State on March 7, 1995 and on November 12, 1993. 
Specifically, EPA is replacing the existing State regulations approved 
in the SIP with the following chapters of the ARSD, effective on 
January 5, 1995: 74:36:01-74:36:04, 74:36:06; 74:36:07, 74:36:10-
74:36:13, and 74:36:15. However, EPA is not taking action at this time 
on two definitions in ARSD 74:36:01 related to the State's acid rain 
program which EPA will be acting on separately: ``acid rain permit'' 
and ``acid rain program'' in ARSD 74:36:01:01(2) and (3).
    In addition to approving South Dakota's construction permit/FESOP 
program in ARSD 74:36:04 as part of the SIP, EPA is also approving this 
program under section 112(l) of the Act for the purposes of creating 
federally enforceable permit conditions on HAPs. Note that in order for 
EPA to consider operating permits issued under ARSD 74:36:04 to be 
federally enforceable, the State must submit the proposed and final 
permits to EPA in a timely manner, as well as meet the other 
requirements of its program and the June 28, 1989 Federal Register.
    This approval provides the State with the authority for 
implementation and enforcement of the following subparts of 40 CFR part 
60: A, D, Da, Db, Dc, E, Ea, F, I, K, Ka, Kb, O, Y, DD, GG, HH, LL, QQ, 
RR, VV, XX, AAA, JJJ, NNN, OOO, and SSS, effective July 1, 1993. 
However, the State's NSPS authorities do not include those authorities 
which cannot be delegated to the states, as defined in 40 CFR part 60.
    EPA is publishing this action without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. Under the procedures 
established in the May 10, 1994 Federal Register (59 FR 24054), this 
action will be effective November 6, 1995 unless, by October 6, 1995, 
adverse or critical comments are received.
    If such comments are received, this action will be withdrawn before 
the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. EPA will not institute a second comment period on this 
action. Any parties interested in commenting on this action should do 
so at this time. If no such comments are received, the public is 
advised that this action will be effective on November 6, 1995.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to a SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    Approvals of SIP submittals under section 110 and subchapter I, 
part D of the Clean Air Act do not create any new requirements, but 
simply approve requirements that the State is already imposing. 
Therefore, because the Federal SIP-approval does not impose any new 
requirements, I certify that it does not have a significant impact on 
small entities affected. Moreover, due to the nature of the Federal-
state relationship under the Clean Air Act, preparation of a regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).
    Under Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
State, local, or tribal governments in the aggregate.
    Through submission of this state implementation plan or plan 
revision, the State and any affected local or tribal governments have 
elected to adopt the program provided for under Section 110 of the 
Clean Air Act. These rules may bind State, local and tribal governments 
to perform certain actions and also require the private sector to 
perform certain duties. The rules being approved by this action will 
impose no new requirements; such sources are already subject to these 
regulations under State law. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action. EPA has also determined that this final action does not 
include a mandate that may result in estimated costs of $100 million or 
more to State, local, or tribal governments in the aggregate or to the 
private sector.
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 6, 1995. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review must 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)).
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.
List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: August 10, 1995.
Jack W. McGraw,
Acting Regional Administrator.

    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart QQ--South Dakota

    2. Section 52.2170 is amended by adding paragraph (c)(16) to read 
as follows:


Sec. 52.2170  Identification of plan.

* * * * *
    (c) * * *

[[Page 46228]]

    (16) On November 12, 1993 and March 7, 1995, the designee of the 
Governor of South Dakota submitted revisions to the plan, which 
included revised regulations for definitions, minor source construction 
and federally enforceable state operating permit (FESOP) rules, source 
category emission limitations, sulfur dioxide rule corrections, new 
source performance standards (NSPS), new source review (NSR) 
requirements for new and modified major sources impacting nonattainment 
areas, and enhanced monitoring and compliance certification 
requirements. The State also requested that the existing State 
regulations approved in the South Dakota SIP be replaced with the 
following chapters of the recently recodified Administrative Rules of 
South Dakota (ARSD): 74:36:01-74:36:04, 74:36:06; 74:36:07, 74:36:10-
74:36:13, and 74:36:15, as in effect on January 5, 1995.

    (i) Incorporation by reference.

    (A) Revisions to the Administrative Rules of South Dakota, Air 
Pollution Control Program, Chapters 74:36:01 (except 74:36:01:01(2) and 
(3)); 74:36:02-74:36:04, 74:36:06; 74:36:07, 74:36:10-74:36:13, and 
74:36:15, effective April 22, 1993 and January 5, 1995.

    3. A new section 52.2184 is added to read as follows:

Sec. 52.2184  Operating permits for minor sources.

    Emission limitations and related provisions established in South 
Dakota minor source operating permits, which are issued in accordance 
with ARSD 74:36:04 and which are submitted to EPA in a timely manner in 
both proposed and final form, shall be enforceable by EPA. EPA reserves 
the right to deem permit conditions not federally enforceable. Such a 
determination will be made according to appropriate procedures and will 
be based upon the permit, permit approval procedures, or permit 
requirements which do not conform with the operating permit program 
requirements of EPA's underlying regulations.

[FR Doc. 95-21879 Filed 9-5-95; 8:45 am]

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