[Federal Register Volume 63, Number 201 (Monday, October 19, 1998)]
[Rules and Regulations]
[Pages 55804-55807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27838]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SD-001-0002a; FRL-6175-4]


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 is approving certain State implementation plan (SIP) 
revisions submitted by the designee of the Governor of South Dakota on 
May 2, 1997. The May 2, 1997 submittal included revisions to the 
Administrative Rules of South Dakota (ARSD) pertaining to the State's 
regulatory definitions, minor source operating permit regulations, open 
burning rules, stack testing rules, and new source performance 
standards (NSPS). This document pertains to the entire State SIP 
submittal with the exception of the revisions to the NSPS regulations 
and the new State provision regarding pretesting of new fuels or raw 
materials: EPA will act on those two regulations separately. EPA has 
found the remaining rule revisions to be consistent with the Clean Air 
Act (Act) and corresponding Federal regulations. Therefore, pursuant to 
section 110 of the Act, EPA is approving the SIP revisions discussed 
above.

DATES: This direct final rule is effective on December 18, 1998 without 
further notice, unless EPA receives adverse comment by November 18, 
1998. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Written comments may be mailed to Richard R. Long, 8P-AR, at 
the EPA Region VIII Office listed. Copies of the documents relative to 
this action are available for inspection during normal business hours 
at the Air and Radiation Program, Environmental Protection Agency, 
Region VIII, Mailcode 8P-AR, 999 18th Street, Suite 500, Denver, 
Colorado 80202-2466; and the Air and Radiation Docket and Information 
Center, Environmental Protection Agency, 401 M Street, SW, Washington, 
D.C. 20460. Copies of the State documents relevant to this action are 
available for public inspection at the Air Quality Program, Department 
of Environment and Natural Resources, Joe Foss Building, 523 East 
Capitol, Pierre, South Dakota 57501.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA Region VIII, (303) 
312-6445.

SUPPLEMENTARY INFORMATION:

I. Background

    On May 2, 1997, the designee of the Governor of South Dakota 
submitted, among other things, revisions to the SIP. Specifically, the 
State submitted revisions to the following chapters in the ARSD: 
74:36:01 Definitions, 74:36:04 Operating Permits for Minor Sources, 
74:36:06 Regulated Air Pollutant Emissions, 74:36:07 New Source 
Performance Standards, 74:36:11 Stack Performance Testing, and 74:36:15 
Open Burning. This document evaluates the State's submittal for 
conformance with the Act and corresponding Federal regulations. 
However, EPA is not, at this time, acting on the revisions to the NSPS 
regulations in ARSD 74:36:07 or the new provision regarding pretesting 
of new fuels or raw materials in ARSD 74:36:11:04. EPA will be acting 
on these two regulations in a separate action.
    The State's May 2, 1997 submittal also included the State's section 
111(d) plan for existing municipal solid waste (MSW) landfills and 
minor revisions to its title V operating permit program, which will 
also be acted on separately.

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)(1)(B) if a completeness 
determination is not made by EPA within six months after receipt of the 
submission.
    The State of South Dakota held a public hearing on November 20, 
1996 on the revisions to the ARSD, at which time the rule revisions 
were adopted by the State. The revised rules became effective on 
December 29, 1996. These rule revisions were formally submitted to EPA 
for approval on May 2, 1997. EPA did not issue a completeness or an 
incompleteness finding for this revision to the SIP. Thus, pursuant to 
section 110(k)(1)(B), the submittal was deemed complete by operation of 
law on November 12, 1997.
2. Evaluation of State's Submittal
    The following summarizes the State's SIP revisions made to the ARSD 
and EPA's review of those revisions for approvability:
    a. ARSD 74:36:01 Definitions. In ARSD 74:36:01:01(79), the State 
updated its definition of ``VOCs'' to reflect changes made to the 
Federal definition of VOCs in 40 CFR 51.100(s) on October 8, 1996 (61 
FR 52850). However, EPA has revised its definition of VOCs twice since 
October 8, 1996. Specifically, on August 25, 1997, EPA added sixteen 
compounds to the list of negligibly reactive VOCs in 40 CFR 
51.100(s)(1) (see 62 FR 44900). In addition, on April 9, 1998, EPA 
added an additional compound to the list of

[[Page 55805]]

negligibly reactive VOCs in 40 CFR 51.100(s)(1) (see 63 FR 17333). EPA 
has informed the State of these revisions and has requested that future 
SIP revisions reflect the most recent Federal VOC definition. The 
State's definition of VOCs, by not excluding the above listed compounds 
from the definition of VOC, is considered to be more stringent than 
EPA's definition, which is acceptable.
    In ARSD 74:36:01:18 and 74:36:01:19, the State adopted definitions 
of ``MSW landfill'' and ``existing MSW landfill,'' respectively. EPA 
has reviewed those definitions and found the State's definitions to be 
consistent with the corresponding Federal definitions in 40 CFR part 
60, subpart Cc.
    Thus, EPA finds the State's revision to ARSD 74:36:01:01 to be 
consistent with the corresponding Federal regulations and, therefore, 
approvable.
    b. ARSD 74:36:04 Operating Permits for Minor Sources. In ARSD 
74:36:04:03, the State revised its list of exemptions from the minor 
source operating permit requirements to: (1) clarify that a source is 
not exempt from the minor source operating permit requirements if the 
source has requested Federally enforceable permit conditions to prevent 
that source from needing a title V operating permit or a prevention of 
significant deterioration (PSD) permit; (2) clarify that sources exempt 
from the minor source operating permit requirements are still required 
to meet the visible emissions requirements in ARSD 74:36:12:01; and (3) 
revise the exemption for emergency electrical generators to clarify 
that the exemption applies to emergency electrical generators fueled by 
all petroleum products (the State's rule previously only applied to 
diesel-fueled emergency electrical generators). EPA believes the first 
two clarifications mentioned above strengthen the existing regulation 
and are necessary clarifications. In addition, EPA sees no 
approvability issues with the revised exemption for emergency 
electrical generators in ARSD 74:36:04:03(7). If an emergency 
electrical generator is considered to be a major source based on its 
potential to emit, South Dakota's regulations would require the source 
either to obtain a construction/title V operating permit under the 
State's combined construction/title V operating permit regulations in 
ARSD 74:36:05 or to obtain permit conditions to prevent the source from 
needing a title V operating permit as discussed in ARSD 74:36:04:03. In 
addition, the State's new provision in ARSD 74:36:04:03 discussed 
above, which clarifies that exempted sources are still required to meet 
the visible emissions standard (i.e., 20% opacity limit), ensures that 
the emergency electrical generators will be operated adequately to 
minimize emissions.
    The State also repealed its provisions for general minor source 
operating permits in ARSD 74:36:04:25-26 because of changes in State 
legislation that provide the State with broad authority to issue 
general permits under the existing minor source operating permit 
requirements as well as the title V operating permit program. In 
addition, the State repealed ARSD 74:36:04:30 regarding the requirement 
to perform a stack performance test, as this was already required in 
ARSD 74:36:06:06. These revisions are considered minor in nature and 
are consistent with the corresponding Federal requirements.
    Therefore, because the revisions to ARSD 74:36:04 are consistent 
with the Act and corresponding regulations and guidance, EPA finds the 
revisions to be approvable.
    c. ARSD 74:36:06 Regulated Air Pollutant Emissions and Repeal of 
ARSD 74:36:15. The State repealed the open burning provisions of ARSD 
74:36:15 and transferred ARSD 74:36:15:01, which contained the list of 
materials that cannot be open-burned because of the excessive and 
potentially dangerous pollutants that can be generated from these 
materials, to ARSD 74:36:06:07. The State also added a statement to 
ARSD 74:36:06:07 clarifying that all open burning needed to be 
conducted in accordance with local and State ordinances, laws, and 
rules. The intent of these revisions was to consolidate similar rules 
into ARSD 74:36:06, as well as to clarify that other State agencies 
(i.e., the waste management program) and local governments are the 
primary authority for approving open burning. Because the State 
retained the list of items which could not be disposed of by open 
burning, EPA believes the transfer of open burning approval authority 
from the State Air Quality Program to other State agencies and local 
governments is acceptable and will not result in any less stringent 
application of the open burning requirements. Consequently, EPA is 
approving the revisions to ARSD 74:36:06:07 and 74:36:06:15.
    d. ARSD 74:36:11 Stack Performance Testing. The State revised the 
title of this chapter and revised ARSD 74:36:11:01 to incorporate 
Federal test methods for hazardous air pollutants. The State also made 
minor wording and clarifying changes to ARSD 74:36:11:01-03. EPA has 
reviewed the revisions to ARSD 74:36:11:01-03 and had found they are 
consistent with the Act and corresponding Federal regulations.

III. Final Action

    EPA is approving South Dakota's SIP revisions, as submitted by the 
designee of the Governor with a letter dated May 2, 1997, with the 
exception of the revisions to ARSD 74:36:07 (NSPS) and ARSD 74:36:11:04 
(regarding pretesting of new fuels or raw materials). EPA will be 
acting on ARSD 74:36:07 and 74:36:11:04 separately from this action.
    The State's SIP submittal requested that EPA replace the previous 
version of the ARSD approved into the SIP with the following chapters 
of the ARSD as in effect on December 29, 1996: 74:36:01 through 
74:36:03, 74:36:04 (with the exception of section 74:36:04:03.01), 
74:36:06, 74:36:07, 74:36:10-13, and 74:36:17. In this approval, EPA is 
specifically replacing all of the existing State regulations previously 
approved into the SIP (except for the NSPS rules in ARSD 74:36:07) with 
the following State regulations as in effect on December 29, 1996: ARSD 
74:36:01-03, 74:36:04 (with the exception of section 74:36:04:03.01), 
74:36:06, 74:36:10, 74:36:11 (with the exception of ARSD 74:36:11:04), 
74:36:12, and 74:36:13. ARSD 74:36:07 (NSPS rules), as in effect on 
January 5, 1995 and as approved by EPA at 40 CFR 52.2170(c)(16)(i)(A), 
will remain part of the SIP until EPA acts on the revised ARSD 74:36:07 
which will be done in a separate action. [Note that EPA is not 
incorporating ARSD 74:36:17, which includes the Rapid City street 
sanding and deicing provisions, into the approved SIP at this time 
because EPA has not yet acted on the original January 22, 1996 
submittal of ARSD 74:36:17. That chapter will be acted on separately in 
the near future.]
    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.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This rule will be effective December 18, 
1998 without further notice unless the Agency receives adverse comments 
by November 18, 1998.

[[Page 55806]]

    If EPA receives such comments, then EPA will publish a timely 
withdrawal of the final rule informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period on this rule. Any parties interested 
in commenting on this rule should do so at this time. If no such 
comments are received, the public is advised that this rule will be 
effective on December 18, 1998 and no further action will be taken on 
the proposed rule.

IV. Administrative Requirements

A. Executive Order 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review,'' review.
    The final rule is not subject to Executive Order 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks,'' because it is not an ``economically significant'' action under 
Executive Order 12866.

B. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a state, local, 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the OMB a 
description of the extent of EPA's prior consultation with 
representatives of affected state, local, and tribal governments, the 
nature of their concerns, copies of written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.

C. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. If the mandate is 
unfunded, EPA must provide to the OMB, in a separately identified 
section of the preamble to the rule, a description of the extent of 
EPA's prior consultation with representatives of affected tribal 
governments, a summary of the nature of their concerns, and a statement 
supporting the need to issue the regulation. In addition, 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
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 small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals 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 a substantial number of small entities. Moreover, 
due to the nature of the Federal-State relationship under the Clean Air 
Act, preparation of a 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. EPA, 427 U.S. 246, 256-66 (1976); 42 U.S.C. 
7410(a)(2).

E. 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 the approval action promulgated 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.

F. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that, before a rule may take effect, the 
agency promulgating the rule must submit a rule report, which includes 
a copy of the rule, to each House of Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. section 804(2).

G. Audit Privilege and Immunity Law

    Nothing in this action should be construed as making any 
determination or expressing any position regarding South Dakota's audit 
privilege and penalty immunity law (sections 1-40-33 through 1-40-37 of 
Chapter 1-40 of the South Dakota Codified Laws, effective July 1, 1996) 
or its impact upon any approved provision in the SIP,

[[Page 55807]]

including the revisions at issue here. The action taken herein does not 
express or imply any viewpoint on the question of whether there are 
legal deficiencies in this or any other Clean Air Act program resulting 
from the effect of South Dakota's audit privilege and immunity law. A 
State audit privilege and immunity law can affect only State 
enforcement and cannot have any impact on Federal enforcement 
authorities. EPA may at any time invoke its authority under the Clean 
Air Act, including, for example, sections 113, 114, 167, 205, 211 or 
213, to enforce the requirements or prohibitions of the SIP, 
independently of any State enforcement effort. In addition, citizen 
enforcement under section 304 of the Clean Air Act is likewise 
unaffected by a State audit privilege or immunity law.

H. Petitions for Judicial Review

    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 December 18, 1998. 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 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, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides, Volatile organic 
compounds.

    Dated: September 29, 1998.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.

    Part 52, 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 et seq.

Subpart QQ--South Dakota

    2. Section 52.2170 is amended by adding paragraph (c)(17) to read 
as follows:


Sec. 52.2170  Identification of plan.

* * * * *
    (c) * * *
    (17) On May 2, 1997, the designee of the Governor of South Dakota 
submitted revisions to the plan. The revisions pertain to revised 
regulations for definitions, minor source operating permits, open 
burning, and performance testing. The State's SIP submittal requested 
that EPA replace the previous version of the ARSD approved into the SIP 
with the following chapters of the ARSD as in effect on December 29, 
1996: 74:36:01 through 74:36:03, 74:36:04 (with the exception of 
section 74:36:04:03.01), 74:36:06, 74:36:07, 74:36:10-13, and 74:36:17. 
EPA is replacing all of the previously approved State regulations, 
except the NSPS rules in ARSD 74:36:07, with those regulations listed 
in paragraph (c)(17)(i)(A). ARSD 74:36:07, as in effect on January 5, 
1995 and as approved by EPA at 40 CFR 52.2170(c)(16)(i)(A), will remain 
part of the SIP. [Note that EPA is not incorporating the revised ARSD 
74:36:07, new ARSD 74:36:11:04, or new ARSD 74:36:17 in this action, as 
these chapters will be acted on separately by EPA.]
    (i) Incorporation by reference.
    (A) Revisions to the Administrative Rules of South Dakota, Air 
Pollution Control Program, Chapters 74:36:01-03; 74:36:04 (except 
section 74:36:04:03.1); 74:36:06; 74:36:10, 74:36:11 (with the 
exception of ARSD 74:36:11:04), 74:36:12, and 74:36:13, effective 
December 29, 1996.

[FR Doc. 98-27838 Filed 10-16-98; 8:45 am]
BILLING CODE 6560-50-P