[Federal Register Volume 60, Number 183 (Thursday, September 21, 1995)]
[Proposed Rules]
[Pages 48942-48944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23437]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[SD-001; FRL-5300-8]


Clean Air Act Proposed Full Approval of Operating Permits 
Program; State of South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed full approval.

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SUMMARY: The EPA proposes to change the existing interim approval of 
the Operating Permits Program submitted by the State of South Dakota to 
a full approval for the purpose of complying with Federal requirements 
for an approvable State program to issue operating permits to all major 
stationary sources, and to certain other sources.

DATES: Comments on this proposed action must be received in writing by 
October 23, 1995.

ADDRESSES: Comments should be addressed to the contact indicated below. 
Copies of the State's submittal and other supporting information used 
in developing this proposed approval are available for inspection 
during normal business hours at the following location: U.S. 
Environmental Protection Agency, Region 8, 999 18th Street, suite 500, 
Denver, Colorado 80202.

FOR FURTHER INFORMATION CONTACT: Laura Farris, 8ART-AP, U.S. 
Environmental Protection Agency, Region 8, Air Programs Branch, 999 
18th Street, suite 500, Denver, Colorado 80202, (303) 294-7539.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    As required under title V of the 1990 Clean Air Act Amendments 
(sections 501-507 of the Clean Air Act (``the Act'')), EPA has 
promulgated rules which define the minimum elements of an approvable 
State operating permits program and the corresponding standards and 
procedures by which the EPA will approve, oversee, and withdraw 
approval of State operating permits programs (see 57 FR 32250 (July 21, 
1992)). These rules are codified at 40 Code of Federal Regulations 
(CFR) part 70 (part 70). Title V requires States to develop, and submit 
to EPA, programs for issuing these operating permits to all major 
stationary sources and to certain other sources.
    The Act requires that states develop and submit these programs to 
EPA by November 15, 1993, and that EPA act to 

[[Page 48943]]
approve or disapprove each program within 1 year after receiving the 
submittal. The EPA's program review occurs pursuant to section 502 of 
the Act and the part 70 regulations, which together outline criteria 
for approval or disapproval. Where a program substantially, but not 
fully, meets the requirements of part 70, EPA may grant the program 
interim approval for a period of up to 2 years. If EPA has not fully 
approved a program by 2 years after the November 15, 1993 date, or by 
the end of an interim program, it must establish and implement a 
Federal program.

II. Proposed Action and Implications

A. Analysis of State Submission

    The Governor of South Dakota's designee, Robert E. Roberts, 
Secretary of the Department of Environment and Natural Resources, 
submitted the State of South Dakota Title V Operating Permit Program 
(PROGRAM) to EPA on November 12, 1993. On March 22, 1995, EPA published 
a Federal Register notice promulgating final interim approval of the 
South Dakota PROGRAM. See 60 FR 15066. Full approval of the South 
Dakota PROGRAM was not possible at that time due to the following issue 
identified during EPA's PROGRAM review: The State's criminal 
enforcement statute only allowed for a maximum penalty of $1,000 for 
failure to obtain a permit and $500 for violation of a permit 
condition. The State was required to adopt legislation consistent with 
part 70.11, prior to receiving full PROGRAM approval, to allow for a 
maximum criminal fine of not less than $10,000 per day per violation 
for knowing violation of operating permit requirements, including 
making a false statement and tampering with a monitoring device. In a 
letter dated April 21, 1995, the State submitted evidence that this 
corrective action had been completed, which EPA has reviewed and has 
determined to be adequate to allow for full PROGRAM approval. This 
corrective action included the adoption of Senate Bill 36 by the South 
Dakota Legislature which contains the necessary language to allow for 
criminal penalties consistent with part 70.11.
    Requirements for approval, specified in 40 CFR 70.4(b), encompass 
section 112(l)(5) requirements for approval of a program for delegation 
of the provisions of 40 CFR part 63, Subpart A, and section 112 
standards promulgated by EPA. Section 112(l)(5) requires that the 
State's program contain adequate authorities, adequate resources for 
implementation, and an expeditious compliance schedule, which are also 
requirements under part 70. EPA granted approval of the State's 
PROGRAM, under section 112(l)(5) and 40 CFR part 63.91, for receiving 
delegation of section 112 standards that are unchanged from the Federal 
standards as promulgated for part 70 sources in the Federal Register 
notice promulgating final interim approval of the South Dakota PROGRAM. 
See 60 FR 15066. Based on a State request, EPA is proposing to expand 
this approval to include non-part 70 sources. EPA believes this is 
warranted because State law does not differentiate between part 70 and 
non-part 70 sources for purposes of implementation and enforcement of 
section 112 standards that the State adopts. This approval would not 
delegate authority to the State to enforce specific section 112 
standards, but instead would establish a basis for the State to request 
and receive future delegation of authority to implement and enforce, 
for non-part 70 sources, section 112 standards that the State adopts 
without change.
    The scope of the PROGRAM and all of the clarifications made in the 
Federal Register notice proposing interim approval of the South Dakota 
PROGRAM still apply. See 60 FR 2917.

B. Proposed Action

    EPA is proposing to change the existing interim approval of the 
operating permits program submitted to EPA by the State of South Dakota 
on November 12, 1993 to a full approval. Among other things, South 
Dakota has demonstrated that the PROGRAM will be adequate to meet the 
minimum elements of a State operating permits program as specified in 
40 CFR part 70. EPA is also proposing to expand approval of South 
Dakota's PROGRAM for receiving delegation of section 112 standards to 
include non-part 70 sources.
    Today's proposal to give full approval to the State's part 70 
PROGRAM does not extend to ``Indian Country,'' as defined in 18 U.S.C. 
1151, including the following ``existing or former'' Indian 
reservations in the State: 1. Cheyenne River; 2. Crow Creek; 3. 
Flandreau; 4. Lower Brule; 5. Pine Ridge; 6. Rosebud; 7. Sisseton; 8. 
Standing Rock; and 9. Yankton.
    The State has asserted it has jurisdiction to enforce a part 70 
PROGRAM within some or all of these ``existing or former'' Indian 
reservations and has provided an analysis of such jurisdiction. EPA is 
in the process of evaluating the State's analysis and will issue a 
supplemental notice regarding this issue in the future. Before EPA 
would approve the State's part 70 PROGRAM for any portion of ``Indian 
Country,'' EPA would have to be satisfied that the State has authority, 
either pursuant to explicit Congressional authorization or applicable 
principles of Federal Indian law, to enforce its laws against existing 
and potential pollution sources within any geographical area for which 
it seeks program approval and that such approval would constitute sound 
administrative practice. This is a complex and controversial issue, and 
EPA does not wish to delay full approval of the State's part 70 PROGRAM 
with respect to undisputed sources while EPA resolves this question.
    In deferring final action on program approval for sources located 
in ``Indian Country,'' EPA is not making a determination that the State 
either has adequate jurisdiction or lacks such jurisdiction. Instead, 
EPA is deferring judgment regarding this issue pending EPA's evaluation 
of the State's analysis.

III. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of this proposed full 
approval. Copies of the State's submittal and other information relied 
upon for this proposed approval are contained in a docket maintained at 
the EPA Regional Office. The docket is an organized and complete file 
of all the information submitted to, or otherwise considered by, EPA in 
the development of these proposed approvals. The principal purposes of 
the docket are:
    (1) to allow interested parties a means to identify and locate 
documents so that they can effectively participate in the approval 
process, and
    (2) to serve as the record in case of judicial review. The EPA will 
consider any comments received by October 23, 1995.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

C. Regulatory Flexibility Act

    EPA's actions under section 502 of the Act do not create any new 
requirements, but simply address operating permits programs submitted 
to satisfy the requirements of 40 CFR part 70. Because this action does 
not impose any new requirements, it does not have a significant impact 
on a substantial number of small entities.

[[Page 48944]]


D. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(Unfunded Mandates Act), signed into law on March 22, 1995, EPA must 
prepare a budgetary impact statement to accompany any proposed or final 
rule that includes a Federal mandate that may result in estimated costs 
to state, local, or tribal governments in the aggregate; or to the 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that this proposed approval does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either state, local, or tribal governments in the aggregate, or 
to the private sector. This Federal action approves pre-existing 
requirements under state or local law, and imposes no new Federal 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.


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

    Dated: September 11, 1995.
Jack W. McGraw,
Acting Regional Administrator.
[FR Doc. 95-23437 Filed 9-20-95; 8:45 am]
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