[Federal Register Volume 67, Number 111 (Monday, June 10, 2002)]
[Rules and Regulations]
[Pages 39619-39621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14366]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SIP NO. SD-001-0012a; FRL-7216-1]


Approval of an Air Quality Implementation Plan Revision; South 
Dakota; Rapid City Street Sanding Regulations To Protect the National 
Ambient Air Quality Standards for PM-10

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving a revision of the 
Administrative Rules South Dakota (ARSD) Chapter 74 Section 36:17 
affecting South Dakota's Air Pollution Control Program for Rapid City, 
South Dakota. In particular, the revisions are regarding requirements 
for street sanding and deicing. These regulations were submitted to EPA 
on January 26, 1996. South Dakota submitted this revision to make the 
street sanding rules federally enforceable. EPA is approving the 
revision to Chapter 74 Section 36:17 of the ARSD as part of South 
Dakota's State Implementation Plan (SIP) under section 110 of the Clean 
Air Act (CAA).

DATES: This rule is effective on August 9, 2002, without further 
notice, unless EPA receives adverse comment by July 10, 2002. If 
adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register informing the public that 
the rule will not take effect.

ADDRESSES: Written comments may be mailed to Richard R. Long, Director, 
Air and Radiation Program, Mailcode 8P-AR, Environmental Protection 
Agency (EPA), Region VIII, 999 18th Street, Suite 300, Denver, 
Colorado, 80202. Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
and Radiation Program, U.S. Environmental Protection Agency, Region 
VIII, 999 18th Street, Suite 300, Denver, Colorado, 80202 and copies of 
the Incorporation by Reference material are available at the Air and 
Radiation Docket and Information Center, Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460. Copies of the State 
documents relevant to this action are available for public inspection 
at the South Dakota Department of Environmental and Natural Resources, 
Air Quality Program, Joe Foss Building, 523 East Capitol, Pierre, South 
Dakota 57501.

FOR FURTHER INFORMATION CONTACT: Mark Komp, EPA, Region VIII, (303) 
312-6022 or Laurel Dygowski, EPA, Region VIII, (303) 312-6144.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' are used, means Environmental Protection Agency.

Table of Contents

I. Background Information
A. Events Leading to this Action
B. What Action is EPA Taking?
C. What is the State Process for submitting materials to EPA?
D. What Was Included in South Dakota's Submittal?
E. Why is EPA Approving This Adoption of Administrative Rule Article 
74:36:17
II. Final Action
III. Administrative Requirements

I. Background Information

A. Events Leading to This Action

    Air quality monitoring for particulates in the Rapid City, South 
Dakota area in 1992 collected two samples that exceeded the 24-hour 
National Ambient Air Quality Standard (NAAQS) for particulates less 
than or equal to 10 microns in size (PM-10). The exceedances occurred 
on October 13 and 25, 1992 and were later documented to be the result 
of high winds blowing dust through the Rapid City, South Dakota area. 
An exceedance is a particulate concentration that is higher than 150 
fg/m3 calculated from a filter sample exposed to ambient air 
during a 24-hour period. An average of three exceedances over a 3-year 
period is considered a violation. Exceedances can include those that 
are expected, based on statistical analysis but not actually measured 
by the State. The two exceedances from filter samples taken in Rapid 
City, South Dakota were calculated to be a violation, based on 
statistical analysis involving the total number of filters exposed.
    In a March 25, 1994 letter, South Dakota requested that we grant 
exceptional event status to these two exceedances rather than declare 
the area nonattainment for the PM-10 NAAQS. The State asserted that the 
exceedances were from uncontrollable natural sources, that the Rapid 
City area had been in the midst of a long-term drought, and winds 
during the days of the exceedance were high enough to qualify as an 
``exceptional event''. EPA's exceptional event guidance, 40 CFR part 
50, appendix K, describes such events leading to exceedances as rare 
occurrences not likely to recur. EPA Region VIII concluded that the 
data could not be excluded from calculating exceedances of the PM-10 
NAAQS, and after applying 40 CFR part 50, appendix K, to the data, 
determined that Rapid City violated the 24-hour PM-10 standard in 1992.
    South Dakota's Department of Environment and Natural Resources 
(DENR) described in the March 25, 1994 letter certain corrective 
actions that had been taken by Pennington County, businesses, and 
industry to reduce particulate matter levels in Rapid City. DENR 
pointed out that these measures had been effective, as no further 
exceedances of the PM-10 standard had occurred in two and one-half 
years since the exceedances in 1992.
    In recognition of DENR's position, EPA requested, in a letter from 
William Yellowtail, Regional Administrator, dated July 19, 1995, that 
the State outline a course of action that would serve as justification 
for EPA to suspend any further consideration of a nonattainment 
designation for the area. The course of action was to provide assurance 
that the State would maintain an adequate air monitoring network in 
Rapid City and would fulfill a commitment to incorporate into the SIP 
enforceable regulations that would embody the control strategies 
currently being implemented in Rapid City for both point and fugitive 
dust sources.
    The State responded by adopting street sanding and deicing 
regulations for Rapid City and adding fugitive dust control 
requirements to industrial air quality permits. These permits were 
later incorporated into operating permits issued by the State under the 
CAA Title V permit program. South Dakota also expressed its continuing 
commitment to operate the Rapid City particulate matter monitoring 
network.
    In 1996, a change in our policy related to exceptional events 
broadened EPA's interpretation of high PM-10 concentrations that are 
not considered exceedances. The new policy, called the Natural Events 
Policy, was expressed in a May 30, 1996 memorandum from EPA's former 
Assistant Administrator for Air and Radiation, Mary Nichols. The 
Natural Events Policy identified high wind events as one of three 
categories that affect the PM-10 NAAQS. The policy provides that EPA 
will exercise its discretion under section 107 (d)(3) of the CAA not to 
redesignate areas as nonattainment if the State develops and implements 
a plan to

[[Page 39620]]

respond to the health impacts of natural events.
    Specifically the guiding principles followed in this policy are:
    1. The protection of public health has the highest priority;
    2. The public must be informed whenever the air quality in the area 
is unhealthy;
    3. All valid ambient air quality data should be submitted to EPA 
and made available for public review;
    4. State and local agencies must take appropriate and reasonable 
measures to safeguard public health regardless of the source of 
emisssions;
    5. Emission controls should be applied to sources that contribute 
to exceedances of the PM-10 NAAQS when those controls will result in 
fewer violations of the standards.
    Despite the adoption of street sweeping and deicing regulations and 
controls on fugitive dust from industrial sources, the Rapid City area 
monitored PM-10 exceedances in 1996 and 1997. On July 14, 1997, the 
State sent information to EPA to support a finding that these 
exceedances were covered by the Natural Events Policy. We reviewed the 
data and agreed with the State's interpretation.
    The State of South Dakota responded to the guiding principles set 
forth in the Natural Events Policy by developing a Natural Events 
Action Plan (NEAP). In the plan, the State committed to a public 
education program, developed Best Available Control Measures (BACM) for 
sources in the industrial complex in west Rapid City and committed to 
document all high wind events that occur and send the information to 
EPA. BACM measures were required to be implemented prior to the end of 
May 2000, with one exception. Fisher Sand and Gravel had been granted 
an extension until September 30, 2000, to implement emission controls 
for the rock crusher. All BACM measures are now in place in the Rapid 
City area.
    Natural events in the future that lead to exceedances must be 
documented according to the State's NEAP. Sanding and deicing 
regulations and fugitive dust control measures will become federally 
enforceable upon EPA approval of the SIP revision and through permits 
issued under the State's Title V operating permit program respectively.

B. What Action Is EPA Taking?

    EPA is approving South Dakota's revision to its SIP regarding the 
application and removal of street sanding and the application of 
deicing materials within the city limits of Rapid City. The revision 
was submitted on January 22, 1996 and appears in South Dakota's 
Administrative Rule Chapter 74:36:17.

C. What Is the State Process for Submitting These Materials to EPA?

    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 admitted by a State must be adopted after reasonable notice and 
public hearing. Section 110(1) 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.
    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). EPA's completeness criteria are set out at 40 CFR 
part 51, appendix V. EPA attempts to make completeness determinations 
within 60 days of receiving a submission. However, a submittal is 
deemed complete by operation of law if a completeness determination is 
not made by EPA six months after receipt of submission. This submittal 
became complete by operation of law on July 22, 1996 in accordance with 
section 110(k)(1)(B) of the Act.
    The South Dakota Board of Minerals and Environments held a public 
hearing and adopted the Rapid City sanding and deicing regulations on 
December 21, 1995. The rules became effective at the State level on 
February 12, 1996.

D. What Was Included in South Dakota's Submittal?

    On January 22, 1996, the State of South Dakota submitted a revision 
to its SIP. The SIP revision consists of street sanding and deicing 
requirements that apply within the city limits of Rapid City, South 
Dakota. Sanding materials that do not break down into smaller particles 
under road traffic are specified for use within Rapid City. In 
addition, deicing chemicals are to be used to lessen the need for 
sanding the roads and will be used to the greatest extent possible. The 
January 22, 1996 submittal includes a letter from Nettie H. Myers, 
Secretary of the Department of South Dakota's Environment and Natural 
Resources. The letter makes commitments to requirements described in 
EPA's letter dated July 19, 1995. These commitments are to maintain a 
monitoring network for PM-10 in the Rapid City area, and include 
fugitive dust control plans in Title V permits for major man-made 
sources of dust in the Rapid City area.

E. Why Is EPA Approving This Adoption of Administrative Rule Article 
74:36:17

    We are approving the revision to South Dakota's SIP because the 
revision is consistent with all requirements of the CAA and with EPA 
guidance. Specifically, we are approving ARSD Chapter 74:36:17 as part 
of the SIP section 110 (K) (3) of the CAA.
    The effect of this approval is that ARSD Chapter 74:36:17 will be 
federally enforceable.

II. Final Action

    EPA is approving South Dakota's revision to its SIP regarding the 
application and the removal of street sanding and deicing materials 
within the city limits of Rapid City, submitted on January 26, 1996. 
The revision appears in ARSD Chapter 74:36:17.
    Section 110(l) of the Clean Air Act states that a SIP revision 
cannot be approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
towards attainment of the NAAQS or any other applicable requirements of 
the Act. The South Dakota SIP revisions that are the subject of this 
document do not interfere with the maintenance of the NAAQS or any 
other applicable requirement of the Act because the State of South 
Dakota's street sanding rule is more stringent than what currently 
exists and this rule will enhance the State's efforts in implementing 
the Clean Air Act. Therefore, section 110(l) requirements are 
satisfied.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. South Dakota has had the rulemaking in place for 
several years with no adverse reaction. However, in the ``Proposed 
Rules'' section of today's Federal Register publication, EPA is 
publishing a separate document that will serve as the proposed rule to 
approve the SIP revision if adverse comments are filed. This rule will 
be effective August 9, 2002, without further notice unless the Agency 
receives adverse comments by July 10, 2002. If the EPA receives adverse 
comments, EPA will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. EPA will 
address all public comments in a subsequent final rule based on the 
proposed rule. The EPA will not institute a second comment period on 
this action. Any parties interested in commenting must do so at this 
time.

[[Page 39621]]

Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 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 the 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 U.S. House of Representatives, and the Comptroller 
General of the United States prior to publication of the rule in the 
Federal Register. A major rule cannot take effect until 60 days after 
it is published in the Federal Register. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    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 August 9, 2002. 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.

    Dated: May 13, 2002.
Robert E. Roberts,
Regional Administrator, Region VIII.


    40 CFR part 52, subpart QQ of chapter I, title 40 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)(20) to read 
as follows:


Sec. 52.2170  Identification of plan.

* * * * *
    (c) * * *
    (20) On January 22, 1996, the designee of the Governor of South 
Dakota submitted provisions in Section 74:36:17 of the Administrative 
rules of South Dakota. The provisions consist of street sanding 
requirements that apply within the city limits of Rapid City, South 
Dakota.
    (i) Incorporation by reference.
    (A) Administrative Rules of South Dakota, Air Pollution Control 
Program, Chapter 74:36:17.
    (ii) Additional materials.
    (A) Letter of March 25, 1994 from South Dakota Department of 
Environment and Natural Resources discussing whether EPA should 
designate Rapid City as nonattainment for the PM-10 standard.
    (B) Letter of July 19, 1995 from EPA Region VIII discussing with 
the South Dakota Department of Environment and Natural Resources the 
exceedances of the PM-10 standard measured in the Rapid City.
    (C) Letter of November 16, 1995 from the South Dakota Department of 
Environment and Natural Resources describing the commitment the State 
of South Dakota has toward permit exceedances of the PM-10 standard in 
the future.
    (D) Letter of January 22, 1996 from the South Dakota Department of 
Environment and Natural Resources transmitting Rapid City street 
sanding requirements.

[FR Doc. 02-14366 Filed 6-7-02; 8:45 am]
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