[Federal Register Volume 67, Number 132 (Wednesday, July 10, 2002)]
[Proposed Rules]
[Pages 45684-45688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-17358]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 60

[SIP No. SD-001-0015; FRL-7243-8]


Approval and Promulgation of Air Quality Implementation Plans; 
State of South Dakota; New Source Performance Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and announcement of South Dakota NSPS delegation.

-----------------------------------------------------------------------

SUMMARY: On June 30, 2000, the State of South Dakota submitted a 
request for delegation of the New Source Performance Standards (NSPS) 
and requested that the NSPS be removed from the State Implementation 
Plan (SIP). Through this Federal Register notice, EPA is announcing 
that on April 2, 2002 we delegated to the State of South Dakota the 
authority to implement and enforce the NSPS program.
    Since the State has been delegated the authority to implement and 
enforce the NSPS program, we are proposing to remove the NSPS sections 
from the SIP. EPA is also proposing updates to the NSPS ``Delegation 
Status of New Source Performance Standards'' table.
    These actions are being taken under sections 110 and 111 of the 
Clean Air Act. Other parts of the June 30, 2000 submittal will be acted 
on in a separate notice.

DATES: Written comments must be received on or before August 9, 2002.

ADDRESSES: Written comments may be mailed to Richard R. Long, Director, 
Air and Radiation Program, Mailcode 8P-AR, Environmental Protection 
Agency (EPA), Region 8, 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, Environmental Protection Agency, Region 8, 999 18th 
Street, Suite 300, Denver, Colorado, 80202. 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: Laurel Dygowski , EPA, Region 8, (303) 
312-6144.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'' or 
``our'' is used means EPA.

I. Announcment of South Dakota NSPS Delegation

    EPA is announcing that on April 2, 2002, pursuant to section 111(c) 
of the Clean Air Act, the Agency delegated the authority to the State 
of South Dakota to implement and enforce the NSPS program for all areas 
within the State except for lands located within formal Indian 
reservations within or abutting the State of South Dakota, including 
the: Cheyenne River Indian Reservation, Crow Creek Indian Reservation, 
Flandreau Indian Reservation, Lower Brule Indian Reservation, Pine 
Ridge Indian Reservation, Rosebud Indian Reservation, Standing Rock 
Indian Reservation, Yankton Indian Reservation, any land held in trust 
by the United States for an Indian tribe; and any other areas which are 
``Indian Country'' within the meaning of 18 U.S.C. 1151.

A. January 25, 2002, Letter of Delegation

    Chapter 74:36:07 is the rule that the State uses to implement our 
NSPS promulgated at 40 CFR part 60. On January 25, 2002, we issued a 
letter delegating the authority to implement and enforce the NSPS. The 
categories of new stationary sources covered by this delegation are as 
follows: NSPS subparts A, D, Da, Db, Dc, Ea, XX, AAA, SSS and WWW in 40 
CFR part 60, as in effect on July 1, 1999; NSPS subparts Eb, Ec, Kb, 
and OOO in 40 CFR part 60, as in effect on July 1, 1998; NSPS subparts 
F, VV, NNN, and RRR, in 40 CFR part 60, as in effect on July 1, 1996; 
and NSPS subparts E, I, K, Ka, O, Y, DD, GG, HH, LL, QQ, RR, JJJ and 
UUU as in effect on July 1, 1995.
    The January 25, 2002 letter of delegation to the State follows:

Honorable Bill Janklow,
Governor of South Dakota, State Capitol, Pierre, South Dakota 57501
    Dear Governor Janklow: On June 30, 2000 the State submitted 
revisions to the New Source Performance Standards (NSPS) rules in 
the Administrative Rules of South Dakota (ARSD) 75:36:07. 
Specifically, the State revised its NSPS to update the citation of 
the incorporated Federal NSPS, as appropriate. In addition, the 
State requested that the NSPS chapter, ARSD 75:36:07, which had been 
approved into the South Dakota State Implementation Plan (SIP), be 
removed from the SIP and delegated to the State.
    Subsequent to States adopting NSPS regulations, EPA delegates 
the authority for the implementation and enforcement of those NSPS, 
so long as the State's regulations are equivalent to the Federal 
regulations. EPA reviewed the pertinent statutes and regulations of 
the State of South Dakota and determined that they provide an 
adequate and effective procedure for the implementation and 
enforcement of the NSPS by the State of South Dakota. Therefore, 
pursuant to section 111(c) of the Clean Air Act (Act), as amended, 
and 40 CFR part 60, EPA hereby delegates its authority for the 
implementation and enforcement of the NSPS to the State of South 
Dakota as follows:
    (A) Responsibility for all sources located, or to be located, in 
the State of South Dakota subject to the standards of performance 
for new stationary sources promulgated in 40 CFR part 60. The 
categories of new stationary sources covered by this delegation are 
NSPS subparts A, D, Da, Db, Dc, Ea, XX, AAA, SSS and WWW in 40 CFR 
part 60, as in effect on July 1, 1999; NSPS subparts Eb, Ec, Kb, and 
OOO in 40 CFR part 60, as in effect on July 1, 1998; NSPS subparts 
F, VV, NNN, and RRR, in 40 CFR part 60, as in effect on July 1, 
1996; and NSPS subparts E, I, K, Ka, O, Y, DD, GG, HH, LL, QQ, RR, 
JJJ and UUU as in effect on July 1, 1995.
    (B) Not all authorities of NSPS can be delegated to States under 
Section 111(c) of the Act, as amended. The EPA Administrator retains 
authority to implement those sections of the NSPS that require: (1) 
Approving equivalency determinations and alternative test methods, 
(2) decision making to ensure national consistency, and (3) EPA 
rulemaking to implement. Therefore, of the NSPS of 40 CFR part 60 
being delegated in this letter, the enclosure lists examples of 
sections in 40 CFR part 60 that cannot be delegated to the State of 
South Dakota.
    (C) As 40 CFR part 60 is updated, South Dakota should revise its 
regulations accordingly and in a timely manner and submit to EPA 
requests for updates to its delegation of authority.
    This delegation is based upon and is a continuation of the same 
conditions as those stated in EPA's original delegation letter of 
March 25, 1976, to the Honorable Richard F. Kneip, then Governor of 
South Dakota, except that condition 3, relating to Federal 
facilities, was voided by the Clean Air Act Amendments of 1977. 
Please also note that EPA retains concurrent enforcement authority 
as stated in condition 1. In addition, if at any time there is a 
conflict between a State and Federal NSPS regulation, the Federal 
regulation must be applied if it is more stringent than that of the 
State, as stated in condition 6. EPA published its March 25, 1976 
delegation letter in the notices section of the April 27, 1976 
Federal Register (41 FR 17500), along with an associated rulemaking 
notifying the public

[[Page 45685]]

that certain reports and applications required from operators of new 
or modified sources shall be submitted to the State of South Dakota 
(41 FR 17549). Copies of the Federal Register notices are enclosed 
for your convenience.
    EPA is approving South Dakota's request for NSPS delegation for 
all areas within the State except for land within formal Indian 
reservations located within or abutting the State of South Dakota, 
including the: Cheyenne River Indian Reservation, Crow Creek Indian 
Reservation, Flandreau Indian Reservation, Lower Brule Indian 
Reservation, Pine Ridge Indian Reservation, Rosebud Indian 
Reservation, Standing Rock Indian Reservation, Yankton Indian 
Reservation, any land held in trust by the United States for an 
Indian tribe; and any other areas which are ``Indian Country'' 
within the meaning of 18 U.S.C. 1151.
    Since this delegation is effective immediately, there is no need 
for the State to notify the EPA of its acceptance. Unless we receive 
written notice of objections from you within ten days of the date on 
which you receive this letter, the State of South Dakota will be 
deemed to accept all the terms of this delegation. EPA will publish 
an information notice in the Federal Register in the near future to 
inform the public of this delegation, in which this letter will 
appear in its entirety.
    If you have any questions on this matter, please contact me or 
have your staff contact Richard Long, Director of our Air and 
Radiation Program, at (303) 312-6005.
    Sincerely yours,

Jack W. McGraw,
Acting Regional Administrator.
    Enclosures.
    cc: Steve Pirner, Secretary, Department of Environment and 
Natural Resources.
Enclosure to Letter Delegating NSPS in 40 CFR part 60, to the State of 
South Dakota

   Examples of Authorities in 40 CFR Part 60 Which Cannot Be Delegated
------------------------------------------------------------------------
       40 CFR Subparts                         Section(s)
------------------------------------------------------------------------
A............................  60.8(b)(2) and (b)(3), and those sections
                                throughout the standards that reference
                                60.8(b)(2) and (b)(3); 60.11(b) and (e).
Da...........................  60.45a.
Db...........................  60.44b(f), 60.44b(g) and 60.49b(a)(4).
Dc...........................  60.48c(a)(4).
Ec...........................  60.56c(i), 60.8
J............................  60.105(a)(13)(iii) and 60.106(i)(12).
Ka...........................  60.114a.
Kb...........................  60.111b(f)(4), 60.114b,
                                60.116b(e)(3)(iii), 60.116b(e)(3)(iv),
                                and 60.116b(f)(2)(iii).
O............................  60.153(e).
S............................  60.195(b).
DD...........................  60.302(d)(3).
GG...........................  60.332(a)(3) and 60.335(a).
VV...........................  60.482-1(c)(2) and 60.484.
WW...........................  60.493(b)(2)(i)(A) and 60.496(a)(1).
XX...........................  60.502(e)(6)
AAA..........................  60.531, 60.533, 60.534, 60.535,
                                60.536(i)(2), 60.537, 60.538(e) and
                                60.539.
BBB..........................  60.543(c)(2)(ii)(B).
DDD..........................  60.562-2(c).
GGG..........................  60.592(c).
III..........................  60.613(e).
JJJ..........................  60.623.
KKK..........................  60.634.
NNN..........................  60.663(e).
QQQ..........................  60.694.
RRR..........................  60.703(e).
SSS..........................  60.711(a)(16), 60.713(b)(1)(i) and (ii),
                                60.713(b)(5)(i), 60.713(d), 60.715(a)
                                and 60.716.
TTT..........................  60.723(b)(1), 60.723(b)(2)(i)(C),
                                60.723(b)(2)(iv), 60.724(e) and
                                60.725(b).
VVV..........................  60.743(a)(3)(v)(A) and (B), 60.743(e),
                                60.745(a) and 60.746.
WWW..........................  60.754(a)(5).
------------------------------------------------------------------------

B. State's Response to January 25, 2002 Letter

    On February 5, 2002, Charles McGuigan, South Dakota Assistant 
Attorney General, sent a letter to EPA regarding our January 25, 2002 
NSPS delegation letter. The February 5, 2002 letter, sent on behalf of 
the Office of the Attorney General and the Department of Environment 
and Natural Resources, objected to EPA's approval of South Dakota's 
NSPS delegation for all areas within the State except for land within 
formal Indian reservations, ``any land held in trust by the United 
States for an Indian tribe'' and any other areas which are ``Indian 
Country'' defined by 18 U.S.C. 1151.'' Specifically, the State 
disagreed that all tribal trust lands in South Dakota are within the 
definition of Indian country. Additionally, the State's February 5, 
2002 letter indicated that ``to the extent that your letter exceeds the 
definition of Indian country as determined by the Eighth Circuit Court 
of Appeals, South Dakota objects to your delegation letter.''

C. EPA's Response to the State's February 5, 2002 letter

    On February 25, 2002, we responded to the State's February 5, 2002 
letter indicating that since the State's February 5, 2002 letter was an 
objection to the NSPS delegation, the State was not delegated the 
authority to implement and enforce the NSPS regulations at that time 
and that EPA would address the delegation in a future letter.
    In an April 2, 2002 letter to the State, EPA explained that tribal 
trust lands are Indian country as defined at 18 U.S.C. 1151 under the 
Clear Air Act and federal Indian law and that we properly excluded 
tribal trust and other Indian country lands from the delegation. In the 
April 2, 2002 letter, EPA again delegated the NSPS program to the 
State. The April 2, 2002 letter is as follows:

Mr. Steven M. Pirner
Secretary, Department of Environment and Natural Resources, Joe Foss 
Building, 523 East Capitol, Pierre, South Dakota 57501,

[[Page 45686]]

    Re: South Dakota New Source Performance Standards
    Dear Secretary Pirner: On June 30, 2000 the State of South 
Dakota requested delegation of new New Source Performance Standards 
(NSPS) rules under the Clean Air Act (``CAA'' or ``Act''). On 
January 25, 2002, EPA delegated authority to the State, pursuant to 
section 111(c) of the Act, to implement and enforce the NSPS program 
for all areas within the State except for formal Indian 
reservations, any land held in trust by the United States for an 
Indian tribe and any other areas which are Indian country within the 
meaning of 18 U.S.C. 1151. The State's Office of the Attorney 
General sent a letter to EPA on February 5, 2002 objecting to the 
Agency's decision to exclude from the State's program ``any land 
held in trust by the United States for an Indian tribe.'' EPA 
responded on February 25, 2002 that due to the State's objection, 
the authority to implement and enforce the NSPS regulations was not 
currently delegated and that EPA would address the State's concern 
in future correspondence.
    EPA has determined that it is appropriate to maintain the 
exclusionary language cited in the January 25, 2002 delegation of 
the South Dakota NSPS program because tribal trust lands are 
reservations under the CAA and Indian country under 18 U.S.C. 1151 
and are thus properly excluded from the Section 111(c) delegation. 
The following is a discussion of the legal basis for EPA's position 
that lands held in trust for a tribe which are located outside the 
boundaries of a formally-designated Indian reservation are within 
the definition of ``reservation'' under the CAA and are Indian 
country under 18 U.S.C. 1151.

I. The Court of Appeals for the District of Columbia Has Upheld EPA's 
Position That Tribal Trust Lands are Within the Definition of 
``Reservation'' Under the CAA.

    On February 12, 1998, EPA promulgated a rule entitled, ``Indian 
Tribes: Air Quality Planning and Management'' (``Tribal Authority 
Rule'' or ``TAR''), 63 FR 7254 (Feb. 12, 1998). The Tribal Authority 
Rule set forth EPA's position that for purposes of Clean Air Act 
programs, the term ``reservation,'' in addition to formally 
designated Indian reservations, also includes trust lands that have 
been validly set apart for the use of a tribe even though the land 
has not been formally designated as a reservation. 63 FR at 7257-58. 
Under Section 307(b)(1) of the CAA, parties challenging the Tribal 
Authority Rule were required to raise their objections to the U.S. 
Court of Appeals for the DC Circuit within sixty days of EPA's final 
rulemaking decision.\1\
---------------------------------------------------------------------------

    \1\ EPA notes that South Dakota did in fact comment on the 
Tribal Authority Rule on November 22, 1994. While the State objected 
to the Agency's position that the CAA is a delegation of federal 
authority to tribes approved by EPA to administer CAA programs over 
all air resources within a reservation, the State did not object to 
EPA's position that the definition of ``reservation'' includes 
tribal trust lands which have not been formally designated as a 
reservation. Having failed to petition for review of this issue in 
the manner required by section 307(b)(1) of the Act, South Dakota 
may not now challenge EPA's position that the definition of 
``reservation'' includes trust lands that have been validly set 
apart for the use of a tribe even though the land has not been 
formally designated as a reservation.
---------------------------------------------------------------------------

    Several industry groups and the State of Michigan challenged 
EPA's Tribal Authority Rule in the U.S. Court of Appeals for the 
District of Columbia. Arizona Public Service Company v. EPA, 211 
F.3d 1280 (D.C. Cir. 2000), cert. denied sub nom., Michigan v. EPA, 
532 U.S. 970 (2001). One of the issues addressed by the D.C. Circuit 
was whether EPA properly construed the term ``reservation'' to 
include tribal trust lands and Pueblos.\2\ The Court described both 
EPA's position that ``reservation'' includes tribal trust lands and 
Pueblos and EPA's decision that case-by-case determinations of 
whether lands fall within the Act's definition of ``reservation'' 
will be reserved for types of lands other than tribal trust lands 
and Pueblos. Id. at 1285,1294.
---------------------------------------------------------------------------

    \2\ The Tribal Authority Rule set forth EPA's position that for 
CAA programs there are at least two categories of lands which, 
although not formally designated as reservations, nonetheless 
qualify as ``reservation'' lands: Pueblos and tribal trust lands. 
EPA also stated that it will consider on a case-by-case basis 
whether types of lands ``other than Pueblos and tribal trust lands 
may be considered `reservations' under Federal Indian law even 
though they are not formally designated as such.'' 63 FR at 7258. In 
other words, EPA's position as set forth in the TAR, is that Pueblos 
and tribal trust lands outside of formally designated reservations 
are validly set apart for the use of tribes and fall within the 
definition of ``reservation'' under the CAA; thus the Agency will 
not engage in a case-by-case analysis to determine the status of 
these lands.
---------------------------------------------------------------------------

    The D.C. Circuit noted that the CAA does not define 
``reservation'' for the purposes of tribal regulation. In 
determining that the statute itself is ambiguous, the Court found 
support for EPA's position in both the plain meaning of the word 
``reservation'' and the context in which the term is used.\3\ The 
Court then held that EPA reasonably interpreted the term 
``reservation'' to include formal reservations, Pueblos and tribal 
trust lands:
---------------------------------------------------------------------------

    \3\ With regard to the plain meaning of the term, the Court 
stated, ``[t]he dictionary defines `reservation' to be a `tract of 
public land set aside for a particular purpose (as schools, forest, 
or the use of Indians).' WEBSTER'S THIRD NEW INTERNATIONAL 
DICTIONARY 1930 (1993). This definition surely encompasses both 
trust lands and formally designated reservations.'' Id. at 1293. The 
Court also noted that a different statutory definition of 
``reservation'' found at 25 U.S.C. 465 (1994) is not an exclusive 
definition and that ``if Congress had wanted to limit the term 
``reservation'' as petitioners suggest, Congress could have done so. 
Indeed, Congress on many occasions has defined `reservation' in 
terms of other statutes.'' Id.
---------------------------------------------------------------------------

    In light of the ample precedent treating trust land as 
reservation land in other contexts, and the canon of statutory 
interpretation calling for statutes to be interpreted favorably 
towards Native American nations, we cannot condemn as unreasonable 
EPA's interpretation of ``reservations'' to include Pueblos and 
tribal trust land.
    Id. at 1294.
    The D.C. Circuit, which is the Court with the exclusive 
jurisdiction to review the Agency's national Tribal Authority 
Rulemaking, upheld EPA's position that the term ``reservation'' 
under the CAA includes tribal trust lands outside of formal 
reservations. The United States Supreme Court denied the petition 
for certiorari, thus leaving the D.C. Circuit decision intact. The 
State of South Dakota is bound to follow the decision of the Court 
in this matter and may not now challenge the very issue which has 
already been litigated on the merits in the D.C. Circuit and upon 
which EPA has already prevailed.

II. Federal Indian Law Supports EPA's Position That Lands Held in Trust 
by the United States for an Indian Tribe are Indian Country

    The body of federal Indian law provides overwhelming support for 
EPA's position that tribal trust lands located outside of the 
boundaries of formal reservations are Indian country as defined at 
18 U.S.C. 1151. The United States Supreme Court has addressed this 
issue on several occasions, consistently finding that tribal trust 
lands are Indian country. See, Oklahoma Tax Commission v. Sac and 
Fox Nation, 508 U.S. 114, 123 (1993) (Oklahoma argued that while it 
did not have authority to tax tribal members on the reservation, the 
State had jurisdiction to tax a tribal store located on trust land 
outside the reservation. The Court rejected the State's argument, 
stating, ``we have never drawn the distinction Oklahoma urged.'' The 
Court also noted, ``Congress has defined Indian country broadly to 
include formal and informal reservations * * *'' (emphasis added)); 
Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of 
Oklahoma, 498 U.S. 505, 511 (1991) (the Court held that tribal trust 
land ``is validly set apart and thus qualifies as reservation for 
tribal immunity purposes.''); United States v. John, 437 U.S. 634, 
649 (1978) (finding ``no apparent reason'' why lands held in trust 
should not be considered a ``reservation'' under 18 U.S.C. 1151(a)). 
See also, United States v. McGowan, 302 U.S. 535 (1938).
    Aside from the D.C. Circuit Arizona Public Service case, there 
are numerous other Circuit Court decisions confirming that tribal 
trust lands located outside of formal reservations are Indian 
country under 18 U.S.C. 1151(a) or (b). See, HRI, Inc. v. EPA, 198 
F.3d 1224, 1249-54 (10th Cir. 2000) (tribal trust land is Indian 
country under 18 U.S.C. 1151(a) and may qualify under 1151(b) as 
well); United States v. Roberts, 185 F.3d 1125, 1131 (10th Cir. 
1999), cert. denied, 529 U.S. 1108 (2000) (``official 
``reservation'' status is not dispositive and lands owned by the 
federal government in trust for Indian tribes are Indian country 
pursuant to 18 U.S.C. 1151''); Buzzard v. Oklahoma Tax Commission, 
992 F.2d 1073, 1076 (10th Cir. 1993) (lands held in trust by the 
federal government for a tribe are Indian country); United States v. 
Azure, 801 F.2d 336, 339 (8th Cir. 1986) (tribal trust land is 
Indian country under either Sec. 1151(a) as a ``de facto'' 
reservation or Sec. 1151 (b) as a dependent Indian community); 
United States v. Sohappy, 770 F.2d 816, 822-23 (9th Cir. 1985) 
(tribal trust land is ``reservation'' land under Sec. 1151(a)); 
Cheyenne-Arapaho Tribe of Oklahoma v. Oklahoma, 618 F.2d 665, 668

[[Page 45687]]

(10th Cir. 1980) (``lands held in trust by the United States for the 
Tribes are Indian country within the meaning of Sec. 1151(a)''); 
Santa Rosa Band of Indians v. Kings County, 532, F.2d 655, 666 (9th 
Cir. 1975) (tribal trust lands held to be Indian country).
    South Dakota relies on United States v. Stands, 105 F.3d 1565, 
1572 (8th Cir. 1997), cert. denied, 522 U.S. 841 (1997) to support 
its proposition that, ``[i]n the Eighth Circuit trust lands are 
Indian country only when they are within the boundaries of an Indian 
Reservation, qualify as a dependent Indian community, or are an 
allotment, the Indian title to which has not been extinguished. If 
trust lands do not fall within one of these three categories, it is 
not Indian country.''
    The Stands Court itself rejects this argument, noting, ``[i]n 
some circumstances, off-reservation tribal trust land may be 
considered Indian country. See, e.g., United Stated v. Azure, 801 
F.2d 336, 338-39 (8th Cir. 1986) (tribal trust land could be 
considered de facto reservation or dependent Indian community).'' 
Id. at 1571 n. 3. In the Azure case, the Court held that the tribal 
trust lands located outside of the boundaries of the Turtle Mountain 
Indian Reservation were de facto reservation lands and Indian 
country under 1151(a). The Court noted that the lands could also be 
considered dependent Indian community under 1151(b).
    Furthermore, the Stands case involved individual allotted lands 
and the issue of whether the allotted lands were Indian country 
under 18 U.S.C. 1151(c). The Court specifically stated that the case 
did not involve the issue of whether tribal trust lands are Indian 
country under 18 U.S.C. 1151 (a) or (b). ``The government has not 
argued that Azure or similar cases apply here.'' Id. Thus, the 
Court's statement that ``tribal trust land beyond the boundaries of 
a reservation is ordinarily not Indian country'' is dicta with 
regard to 18 U.S.C. 1151 (a) and (b) since the issue was not 
directly before the Court.
    Thus, the overwhelming Supreme Court and Circuit Court precedent 
supports EPA's position that tribal trust lands located outside of 
formal reservations are Indian country as defined at 18 U.S.C. 1151, 
and the holding in Stands, which did not involve an analysis of 
whether tribal trust lands are Indian country under sections 1151(a) 
or (b) is not to the contrary.
    In conclusion, pursuant to section 111(c) of the Clean Air Act, 
EPA hereby delegates its authority to the State of South Dakota to 
implement and enforce the NSPS program as described in our January 
25, 2002 approval with regard to all areas within the State except 
for lands located within formal Indian reservations within or 
abutting the State of South Dakota, including the: Cheyenne River 
Indian Reservation, Crow Creek Indian Reservation, Flandreau Indian 
Reservation, Lower Brule Indian Reservation, Pine Ridge Indian 
Reservation, Rosebud Indian Reservation, Standing Rock Indian 
Reservation, Yankton Indian Reservation; any land held in trust by 
the United States for an Indian tribe; and any other areas which are 
Indian country within the meaning of 18 U.S.C. 1151.
    Sincerely,
Jack W. McGraw
Acting Regional Administrator.
    cc: Mr. Charles D. McGuigan, Assistant Attorney General

II. Proposed Rule

    EPA is proposing to update the table in 40 CFR 60.4(c), entitled 
``Delegation Status of New Source Performance Standards [(NSPS for 
Region VIII]'', to indicate that the 40 CFR part 60 NSPS are now 
delegated to the State of South Dakota.
    In addition, EPA is proposing to remove the NSPS from the SIP. In 
its January 30, 2000 submittal, the State requested that the NSPS be 
removed from the SIP. Since the State has been delegated the authority 
for the implementation and enforcement of the NSPS in 40 CFR part 60, 
we are proposing to remove the following sections from the South Dakota 
SIP: 74:36:07:01, 74:36:07:02, 74:36:07:03, 74:36:07:04, 74:36:07:05, 
74:36:07:06, 74:36:07:07, 74:36:07:07.01, 74:36:07:09, 74:36:07:10, 
74:36:07:12, 74:36:07:13, 74:36:07:14, 74:36:07:15, 74:36:07:16, 
74:36:07:17, 74:36:07:18, 74:36:07:19, 74:36:07:20, 74:36:07:21, 
74:36:07:22, 74:36:07:23, 74:36:07:24, 74:36:07:25, 74:36:07:26, 
74:36:07:27, 74:36:07:28, 74:36:07:31, 74:36:07:32, 74:36:07:33, and 
74:36:07:43.
    EPA is soliciting public comments on the proposed revisions to 40 
CFR 60.4(c) table and the removal of the NSPS from the South Dakota 
SIP. These comments will be considered before taking final action. 
Interested parties may participate in the Federal rulemaking process by 
submitting written comments within thirty (30) days of publication of 
this notice to the EPA Regional office listed in the ADDRESSES section 
of this document.

A. Administrative Requirements for Proposed Rule

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed rule is not a ``significant regulatory action'' and therefore 
is not subject to review by the Office of Management and Budget. For 
this reason, the proposed rule 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 
proposed rule merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed 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 proposes to approve 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 proposed 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 proposes to approve 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 proposed 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.).

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead,

[[Page 45688]]

Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

40 CFR Part 60

    Environmental protection, Air pollution control, Aluminum, Ammonium 
sulfate plants, Beverages, Carbon monoxide, Cement industry, Coal, 
Copper, Dry cleaners, Electric power plants, Fertilizers, Fluoride, 
Gasoline, Glass and glass products, Graphic arts industry, Household 
appliances, Insulation, Intergovernmental relations, Iron, Lead, Lime, 
Metallic and nonmetallic mineral processing plants, Metals, Motor 
vehicles, Natural gas, Nitric acid plants, Nitrogen dioxide, Paper and 
paper products industry, Particulate matter, Paving and roofing 
materials, Petroleum, Phosphate, Plastics materials and synthetics, 
Reporting and recordkeeping requirements, Sewage disposal, Steel, 
Sulfur oxides, Tires, Urethane, Vinyl, Waste treatment and disposal, 
Zinc.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: July 1, 2002.
Robert E. Roberts,
Regional Administrator, Region 8.
[FR Doc. 02-17358 Filed 7-9-02; 8:45 am]
BILLING CODE 6560-50-P