[Federal Register Volume 68, Number 17 (Monday, January 27, 2003)]
[Proposed Rules]
[Pages 3848-3852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1775]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52, 61 and 62

[SD-001-0013, SD-001-0014, SD-001-0015; FRL-7443-7]


Approval and Promulgation of Air Quality Implementation Plans; 
South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
State Implementation Plan (SIP) revisions submitted by the State of 
South Dakota on May 6, 1999 and June 30, 2000. The revisions modify the 
State's air quality rules so they are consistent with federal rules and 
clarify existing provisions. EPA is also proposing to remove from the 
SIP or not approve into the SIP, certain provisions of the State's air 
quality rules because they are not related to attainment or maintenance 
of the National Ambient Air Quality Standards (NAAQS) and are not 
appropriate for inclusion in the SIP. This action is being taken under 
section 110 of the Clean Air Act.

DATES: Written comments must be received on or before February 26, 
2003.

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, Environmental Protection Agency, Region VIII, 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 VIII, 
(303) 312-6144.

SUPPLEMENTARY INFORMATION: For the purpose of this document, we are 
giving meaning to certain words as follows: (a) The words ``EPA,'' 
``we,'' ``us'' or ``our'' mean or refer to the United States 
Environmental Protection Agency; (b) The words State or South Dakota 
mean the State of South Dakota unless the context indicates otherwise.
    In this document we are proposing to partially approve and 
partially disapprove SIP revisions submitted by the State of South 
Dakota on May 6, 1999 and June 30, 2000. These revisions modify the 
State's air quality rules so they are consistent with federal rules and 
clarify existing provisions. We have already acted on several portions 
of the State's May 6, 1999 submittal. Below is a discussion of the 
revisions to the State's air quality rules and whether or not they are 
being proposed for approval into the SIP. We also identify those 
provisions of the submittal that have already been acted on. The June 
30, 2000 submittal also revised the State's New Source Performance 
Standards (NSPS) in Chapter 74:36:07. We have addressed the majority of 
the NSPS revisions in Chapter 74:36:07 in a separate document (67 FR 
57520).

I. Summary of SIP Revision

A. Chapter 74:36:01, South Dakota Air Pollution Control Program 
(SDAPCP)

    The State's May 6, 1999 submittal made the following revisions to 
the Chapter 74:36:01--Definitions:
    1. Minor changes were made to the definitions of ``allowable 
emissions,'' ``final permit,'' ``permit modification,'' and ``reference 
method.''
    2. Two definitions were deleted, ``FAA'' and ``organized disposal 
system,'' because earlier rule revisions had deleted the sections that 
contained these words.
    3. Substantive changes were made to the following definitions: (a) 
``minor source'' was revised to indicate that a minor source will be 
based on its potential emissions of a criteria pollutant rather than 
any regulated pollutant; (b) ``particulate matter'' was revised to read 
``a broad class of chemically and physically diverse substances that 
exist as discrete particles, liquid droplets, or solids over a wide 
range of sizes''; (c) ``PM10'' was revised to indicate that an 
equivalent method, in addition to the applicable reference method, may 
be used to measure PM10; and (d) ``VOC'' was revised to exclude 
additional compounds of carbon from the definition.
    4. A definition for ``PM2.5'' was added.
    5. Minor changes were made in the sections ``Administrative permit 
amendment defined'' (section 74:36:01:03), ``Applicable requirements of 
Clean Air Act defined'' (74:36:01:05), and ``Significant defined'' 
(section 74:36:01:17).
    6. Imbedded in the State's prior definition of ``major modification 
defined'' (section 74:36:01:07) was a definition for ``physical change 
or change in the method of operation.'' The State has deleted the 
definition of ``physical change or change in the method of operation'' 
from the definition of ``major modification defined'' and added a 
separate definition for ``physical change or change in the method of 
operation'' at section 74:36:01:20.
    7. The definition of ``major source defined'' (section 74:36:01:08) 
was revised to indicate that controls are considered when determining 
whether a source is major under section 112 of the Clean Air Act.
    8. The definition of ``modification defined'' (section 74:36:01:10) 
was revised to delete the references to what is not considered a 
modification and the references to the permitting required upon 
modification.
    We have reviewed all the revisions identified above in (1) through 
(8). We believe the revisions are acceptable and are proposing to 
approve them into the SIP, or are deleting provisions from the SIP as 
appropriate.
    The definitions of PM10 and PM2.5 may appear to contain director 
discretion provisions; \1\ both definitions indicate that pollutants 
will be ``measured by an applicable reference or equivalent method.'' 
However, because of other provisions in the State's rules and/or our 
action on those other provisions, we do not believe the

[[Page 3849]]

definition of PM2.5 or PM10 will result in unacceptable director 
discretion provisions. Specifically, PM10 or PM2.5 will either be 
measured by ambient monitors or through stack performance testing 
specified in the federal rules. Section 74:36:02:03, Methods of 
sampling and analysis, discusses the methods to sample ambient 
concentrations of the NAAQS. This section reads, ``air pollutants of 
particulate matter, sulfur dioxide, carbon monoxide, ozone, nitrogen 
dioxide, and lead listed in 40 CFR Part 50 shall be measured by the 
reference method or methods stated in 40 CFR Part 50, Appendix A to N, 
inclusive (July 1, 1999) or an equivalent method designated in 
accordance with 40 CFR Part 53'' (emphasis added). 40 CFR part 53 
indicates that for a method to be an equivalent method, it must be 
designated under 40 CFR part 53; equivalent methods are approved by 
EPA, and the State department cannot approve an equivalent ambient 
monitoring method. Section 74:36:11:01 of the State regulations, Stack 
performance testing or other testing methods, reads ``all stack 
performance tests or other test methods must be made in accordance with 
the applicable method specified in 40 CFR 60.17; Part 60, Appendix A; 
Sec.  63.14; Part 63, Appendix A; and Part 51, Appendix M (all July 1, 
1999). To the extent that 40 CFR 60.17; Part 60, Appendix A; Sec.  
63.14; Part 63, Appendix A; or Part 51, Appendix M (July 1, 1999), is 
not applicable, methods shown to be capable of providing valid test 
results for the source in question may be used with prior department 
approval. The department may not accept a performance test conducted by 
unapproved methods.'' As discussed later, we are proposing to 
disapprove the second sentence of 74:36:11:01 because it contains a 
director discretion provision. We are proposing to approve the change 
in date for the reference to appendix M in the first sentence. 
Therefore, the approved SIP will not allow the State department to 
approve alternative stack performance test methods.
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    \1\ A director discretion provision would allow the State to 
revise portions of a SIP without completing a formal SIP revision. 
Because we believe the SIP can only be revised through a formal SIP 
revision, we usually do not approve SIPs, or parts of SIPs, that 
contain director discretion provisions.
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B. Chapter 74:36:02 SDAPCP--Ambient Air Quality

    The State's May 6, 1999 and June 30, 2000 submittals made the 
following revisions to Chapter 74:36:02--Ambient Air Quality:
    1. With the May 6, 1999 submittal, the State revised its Ambient 
Air Quality rule to incorporate a more recent version of the Code of 
Federal Regulations (CFR) and the revisions to the NAAQS promulgated by 
EPA in 1997. The changes to the NAAQS involve revisions to the 24-hour 
and annual standard for PM10, revisions to the ozone standard, and the 
addition of 24-hour and annual standards for PM2.5. The following 
sections of the State rules were revised: 74:36:02:02--Ambient air 
quality standards; 74:36:02:03--Method of sampling and analysis; 
74:36:02:04--Air quality monitoring network; and 74:36:02:05--Ambient 
air monitoring requirements.
    2. Because of the challenge to EPA's revised NAAQS decision, with 
the June 30, 2000 submittal the State is revising part of what it 
submitted on May 6, 1999 and incorporating into the ambient air quality 
rule in section 74:36:02:02 the following EPA NAAQS: (a) Sulfur oxides 
referenced in 40 CFR 50.4 and 50.5, as in effect July 1, 1999; (b) PM10 
referenced in 40 CFR 50.6, as in effect July 1, 1997; (c) PM2.5 
referenced in 40 CFR 50.7(a)(1), (b), and (c), as in effect July 1, 
1999; (d) carbon monoxide referenced in 40 CFR 50.8, as in effect July 
1, 1999; (e) ozone referenced in 50 CFR 50.10, as in effect July 1, 
1999; (f) nitrogen oxides referenced in 40 CFR 50.11, as in effect July 
1, 1999; and (g) lead referenced in 40 CFR 50.12, as in effect July 1, 
1999.\2\
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    \2\ The 1997 revised NAAQS for ozone and PM10 and new NAAQS for 
PM2.5 were challenged by industry groups and several States. As a 
result, the United States Court of Appeals for the District of 
Columbia Circuit vacated the 1997 NAAQS and remanded them to EPA. 
See, American Trucking Ass'ns, Inc. v. U.S. EPA, 173 F.3d 1027 
(D.C.Cir 1999). EPA petitioned for review in the United States 
Supreme Court, which reversed significant portions of the decision 
below, but affirmed on the issue of implementation of the revised 
NAAQS, holding EPA's implementation policy unlawful and remanding 
the case to the Court of Appeals for further proceedings. See, 
Whitman v. American Trucking Ass'ns Inc., 531 U.S. 457, 121 S.Ct. 
903, 149 L.Ed. 2d 1 (February 27, 2001). The revised ozone and PM-10 
NAAQS are not being implemented at present. On May 18, 1999, the 
United States Court of Appeals for the D.C. Circuit; American 
Trucking Association, Inc., et al. v. United States Environmental 
Protection Agency vacated the 1997 PM10 standard. Because of the 
Court ruling, we continue to implement the pre-existing PM10 
standard.
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    The overall result is that the State is reincorporating our old 
PM10 NAAQS (originally promulgated on July 1, 1987 (52 FR 24663) and 
contained in the July 1, 1997 edition of the CFR) into the SIP, 
incorporating the new PM2.5 and 8-hour ozone NAAQS (promulgated on July 
18, 1997, 62 FR 38711 and 62 FR 38894, respectively) into the SIP, and 
not incorporating the new PM10 NAAQS (promulgated on July 18, 1997, 62 
FR 38711) or the prior 1-hour ozone NAAQS (reinstated on July 20, 2000, 
65 FR 45200) into the SIP. Even though the State's rule does not 
include the 1-hour ozone NAAQS, which was reinstated on July 20, 2000 
(65 FR 45200), the federal 1-hour ozone NAAQS still applies in South 
Dakota. In the future, the State should revise its SIP to include the 
1-hour ozone NAAQS.
    In addition, the State revised its ambient air quality rule to 
incorporate a more recent version of the CFR. The following sections of 
the rule were revised: 74:36:02:03--Method of sampling and analysis; 
74:36:02:04--Air quality monitoring network; and 74:36:02:05--Ambient 
air monitoring requirements.
    We have reviewed the revisions identified in (1) and (2). We 
believe the revisions are acceptable and are proposing to approve them 
into the SIP.

C. Chapter 74:36:04 SDAPCP--Operating Permits for Minor Sources

    The State's May 6, 1999 submittal made the following revisions to 
Chapter 74:36:04--Operating Permits for Minor Sources:
    (1) Substantive changes were made to section 74:36:04:03, Operating 
permit exemptions. This section lists the types of facilities and units 
that are exempt from the requirement to obtain a minor air quality 
permit. An additional subsection is included that exempts units with 
the potential to emit two tons or less per year of any criteria 
pollutant before the application of control equipment. However, the 
criteria pollutant emissions from the unit must be included in 
determining if the source is a minor or major source. The State also 
revised some subsections of this rule to add the word ``unit'' in 
appropriate places. This will help clarify that this section also 
exempts certain units, not just facilities.
    (2) Substantive changes were made to section 74:36:04:09, Permit 
application--Completeness review. This section identifies relevant 
deadlines for review of an application to determine if it is complete. 
This section is being revised to indicate that a facility has 20 
working days (or longer if approved by the Department) to submit 
additional information if the application is determined to be 
incomplete or if additional information is necessary to evaluate the 
application.
    (3) Substantive changes were made to sections 74:36:04:11 through 
74:36:04:14--Permitting process. Sections 74:36:04:11 through 
74:36:04:14 outline how the applicant and the public are involved in 
the permitting process. These revisions allow the applicant or public 
the choice of either commenting on or contesting the department's draft 
permit during the 30-day public notice period. If the department 
receives comments, the

[[Page 3850]]

department will work with the applicant and the person who submitted 
comments, if other than the applicant, to resolve the concern. If the 
applicant or the other person who commented is not satisfied with the 
results of the negotiations, the commentor will be given 30 days from 
receiving the department's final permit decision to request a contested 
case hearing on the final permit decision.
    (4) Substantive changes were made to section 74:36:04:18, Operating 
permit revision. This section allows a facility to revise an existing 
permit. The changes modify this section to clarify what is necessary to 
revise an existing facility permit.
    (5) Substantive changes were made to section 74:36:04:19 and 
74:36:04:20. These sections identify permit revisions that are eligible 
for an administrative permit amendment. The State has revised these 
sections: to clarify what the facility needs to submit to revise a 
permit through the administrative permit amendment process; delete 
repetition in the rules; allow facilities to implement a proposed 
revision that is considered an administrative permit amendment 
immediately upon notifying the department; and require the department 
to determine if an administrative permit amendment is applicable to the 
proposed revision within 15 days of receiving a request for a permit 
revision.
    (6) Substantive changes were made to section 74:36:04:20.01, Minor 
permit amendment required. This section identifies permit revisions 
that are eligible for a minor permit amendment. The State is revising 
this section to clarify that a source may request a minor permit 
amendment, through the administrative permit amendment processed 
discussed above, for a change that does not constitute a modification 
and is not prohibited under any applicable requirement under Title I of 
the Clean Air Act.
    (7) Substantive changes were made to section 74:36:04:20.04, 
Department deadline to approve minor permit amendment. This section 
outlines the time line for reviewing a proposed permit revision to 
determine if it is a minor permit amendment. This section has been 
revised to explain that a minor permit amendment is issued by the 
secretary without the procedural requirements applicable to obtain an 
operating permit. Additionally, this section has been revised to allow 
a facility to make the proposed minor change seven days after notifying 
the Department.
    (8) Minor changes were made to section 74:36:04:22, Source status 
change--New permit required. The State has revised a reference in this 
section.
    We have reviewed the revisions identified in (1) through (8) above. 
We believe the revisions are acceptable and are proposing to approve 
them into the SIP.

D. Chapter 74:36:05 SDAPCP--Operating Permits for Part 70 Sources

    The State's May 6, 1999 submittal made revisions to Chapter 
74:36:05--Operating Permits for Part 70 Sources. We believe we have no 
legal basis in the Act for approving any provisions of the operating 
permit program into the SIP. Therefore, we are not taking action to 
incorporate Chapter 74:36:05--Operating Permits for Part 70 Sources, or 
the revisions submitted on May 6, 1999, into the SIP. However, we fully 
approved South Dakota's Title V program on January 29, 1996 (61 FR 
2720). We will take appropriate action on the revisions to South Dakota 
Title V program at a later date.

E. Chapter 74:36:06 SDAPCP--Regulated Air Pollutant Emissions

    The State's May 6, 1999 submittal made the following revisions to 
Chapter 74:36:06--Regulated Air Pollutant Emissions:
    1. Minor changes were made to the following sections: Allowable 
emissions for fuel burning units (section 74:36:06:02) and Allowable 
emissions for process industry units (section 74:36:06:03).
    2. Substantive changes were made to Open burning practices 
prohibited (section 74:36:06:07). Specifically, the State added a 
sentence to section 74:36:06:07(1) that reads, ``an exception for crude 
oil is allowed as a remediation alternative for soils contaminated with 
crude oil if a person submits the information requested in Sec.  
74:10:05:11.04 and the secretary approves the alternative remediation 
process; * * *'' We believe that this is not a relaxation of the open 
burning rules. The State's open burning rules were revised in 1996. 
Prior to the 1996 revisions, the open burning rules were written 
broadly and listed what could be burned. In December 1996, the State 
revised and condensed the open burning rules. The rules were written to 
indicate what could not be burned. We approved the December 1996 rules 
on October 19, 1998 (63 FR 55804). The State believes it inadvertently 
failed to incorporate the exemption for soils contaminated with crude 
oil when it revised the rules in Dcember 1996. Therefore, adding the 
exemption for soil contaminated with crude oil should not be considered 
a relaxation. Additionally, the State has indicated that the burning of 
spilled crude oil has occurred infrequently. They recall only one time 
when crude contaminated soil was burned in the oil fields in 
northwestern South Dakota.
    We have reviewed the revisions identified in (1) and (2). We 
believe the revisions are acceptable and are proposing to approve them 
into the SIP.

F. Chapter 74:36:07 SDAPCP--New Source Performance Standards

    The State's May 6, 1999 and June 30, 2000 submittals made the 
following revisions to Chapter 74:36:07--New Source Performance 
Standards:
    1. The May 6, 1999 submittal added provisions for hospital/medical/
infectious waste incinerators constructed on or before June 20, 1996 
(74:36:07:06.1) and for those on which construction commenced after 
June 20, 1996 (74:36:07:06.2); modified previously adopted provisions 
for municipal combustors constructed after September 20, 1994 
(74:36:07:07.1); modified previously adopted provisions for existing 
municipal solid waste landfills (74:36:07:34-42) and for new municipal 
solid waste landfills (74:36:07:43); and deleted a permitting provision 
for asphalt plants (section 74:36:07:11). Except for the provisions for 
hospital/medical/ infectious waste incinerators constructed on or 
before June 20, 1996 (section 74:36:07:06.01) and municipal solid waste 
landfills (section 74:36:07:34-42), which we discuss below, we already 
approved these as SIP revisions on May 22, 2000 (65 FR 32033).
    2. The June 30, 2000 submittal requested that new source 
performance standards (NSPS) regulations currently in the SIP be 
removed from the SIP and delegated to the State. In addition, the June 
30, 2000 submittal references more recent versions of the Code of 
Federal Regulations (CFR). Except for the revisions to sections 
74:36:07:34-42 and 74:36:07:06.1, we already addressed the June 30, 
2000 revisions in the Federal Register on September 11, 2002 (67 FR 
57520). The revisions to sections 74:36:07:34-42 and 74:36:07:06.1 are 
discussed below.
    With respect to the rules added and modified for hospital/medical/
infectious waste incinerators constructed on or before June 20, 1996 
(section 74:36:07:06.01), we believe we have no legal basis in the Act 
for approving these rules into the SIP because these rules are not 
generally related to attainment or maintenance of the NAAQS. Therefore, 
we are not taking action to incorporate section

[[Page 3851]]

74:36:07:06.01 into the SIP. However, on June 22, 2000 (65 FR 38732), 
we did approve this section as meeting section 111(d) of the Act. See 
40 CFR 62.10360-10362. Also, the June 30, 2000 revision to section 
74:36:07:06.1 updates the incorporation by reference to 40 CFR part 60 
as of July 1, 1998. We are proposing to approve the update to the 
incorporation by reference and identify this change in 40 CFR 62.10360.
    With respect to the rules added and modified for existing municipal 
solid waste landfills (sections 74:36:07:39-42), we believe we have no 
legal basis in the Act for approving these rules into the SIP because 
these rules are not generally related to attainment or maintenance of 
the NAAQS. Therefore, we are not taking action to incorporate sections 
74:36:07:39-42 into the SIP. However, on June 3, 1999 (64 FR 29796), we 
did approve these rules as meeting section 111(d) of the Act. See 40 
CFR 62.10350-10352. Also, the June 30, 2000 revision to sections 
74:36:07:34-42.01 updates the incorporation by reference to 40 CFR 60, 
as of July 1, 1999. We are proposing to approve the update to the 
incorporation by reference and identify this change in 40 CFR 62.10350.

G. Chapter 74:36:08 SDAPCP--National Emission Standards for Hazardous 
Air Pollutants

    The State's May 6, 1999 and June 30, 2000 submittals made revisions 
to Chapter 74:36:08, National Emission Standards for Hazardous Air 
Pollutants, by adding new standards as well as revising existing 
provisions. We believe we have no legal basis in the Act for approving 
these rules into the SIP. In addition, on May 16, 2000, we issued a 
letter indicating that we were delegating the authority of 40 CFR parts 
61 and 63 to the State. Given that the State now has delegation of 
authority for the NESHAPs in 40 CFR part 61 and for the Maximum 
Achievable Control Technology (MACT) standards, in 40 CFR part 63, 
pursuant to 110(k)(6) of the Act, we are proposing to remove Chapter 
74:36:08--National Emission Standards for Hazardous Air Pollutants from 
the SIP and not proposing to approve into the SIP any new or revised 
provisions adopted by the State to meet 40 CFR parts 61 and 63. We are 
proposing to update the table in 40 CFR 61.04(c)(8) to indicate that 
the 40 CFR part 61 NESHAPs are now delegated to the State.

H. Chapter 74:36:11 SDAPCP--Performance Testing

    The State's May 6, 1999 and June 30, 2000 submittals made the 
following revisions to Chapter 74:36:11--Performance Testing:
    1. The State's May 6, 1999 SIP revision modified the requirements 
in section 74:36:11:04, Testing new fuels or raw materials. We already 
approved the May 6, 1999 revisions to the rule on February 3, 2000 (65 
FR 5264).
    2. The State's June 30, 2000 submittal incorporates a more recent 
version of the CFR referenced in section 74:36:11:01, Testing new fuels 
or raw materials. We believe this revision makes the State's rule 
consistent with ours and are proposing to approve it into the SIP.
    However, section 74:36:11:01 of the State regulations, Stack 
performance testing or other testing methods, reads ``all stack 
performance tests or other test methods must be made in accordance with 
the applicable method specified in 40 CFR 60.17; part 60, Appendix A; 
Sec.  63.14; part 63, appendix A; and part 51, appendix M (all July 1, 
1999). To the extent that 40 CFR 60.17; part 60, appendix A; Sec.  
63.14; part 63, appendix A; or part 51, appendix M (July 1, 1999), is 
not applicable, methods shown to be capable of providing valid test 
results for the source in question may be used with prior department 
approval. The department may not accept a performance test conducted by 
unapproved methods.''
    The above rule is problematic because the second sentence contains 
a director discretion provision (see footnote 1). Specifically, this 
rule allows the State to determine acceptable performance tests when 
Federal guidelines do not apply, without EPA approval and without the 
opportunity for public notice and comment. Our concern is that the 
State may determine that a required test method is not applicable when 
it really should be. Additionally, the State may determine a test 
method is applicable, when under federal law it would not be 
applicable. Under section 110(i) of the CAA, we interpret that director 
discretion provisions are prohibited. Therefore, we are proposing to 
disapprove the second sentence of section 74:36:11:01. To make the 
second sentence of section 74:36:11:01 an approvable SIP revision, it 
should be revised to read ``to the extent that 40 CFR 60.17; part 60, 
appendix A; Sec.  63.14; part 63, appendix A; or part 51, appendix M 
(July 1, 1999), is not applicable, methods shown to be capable of 
providing valid test results for the source in question may be used 
with prior department and EPA approval.''

I. Chapter 74:36:12 SDAPCP--Control of Visible Emissions

    The State's May 6, 1999 and June 30, 2000 submittals made the 
following revisions to Chapter 74:36:12--Control of Visible Emissions:
    1. Section 74:36:12:01, Restrictions on visible emissions, limits 
visible emissions from permitted units to less than 20 percent opacity. 
This section lists an exception to the 20 percent limits as specified 
in chapter 74:36:15. However, chapter 74:36:15 was previously repealed. 
Therefore the State is deleting the exception and reference to chapter 
74:36:15 with the May 6, 1999 submittal.
    2. The June 30, 2000 submittal incorporates a more recent version 
of the CFR referenced in section 74:36:12:01, Restrictions on visible 
emissions.
    We have reviewed the revisions identified in (1) and (2). We 
believe the revisions are acceptable and are proposing to approve them 
into the SIP.

J. Chapter 74:36:13 SDAPCP--Continuous Emission Monitoring Systems

    The State's May 6, 1999 and June 30, 2000 submittals made the 
following revisions to Chapter 74:36:13--Continuous Emission Monitoring 
Systems:
    1. With the May 6, 1999 submittal, the State added section 
74:36:13:08, Compliance assurance monitoring. This section requires 
that the owner or operator of a unit that is subject to 50 CFR 64.2 
must comply with 40 CFR 64.1 and 64.3 to 64.10, inclusive, as published 
in 62 FR 54940-54946 (October 22, 1997).
    2. With the June 30, 2000 submittal, the State incorporates a more 
recent version of the CFR referenced in the following sections: 
74:36:13:02, Minimum performance specifications for all continuous 
emission monitoring; 74:36:13:03, Reporting requirements; 74:36:13:04, 
Notice to department of exceedance; and 74:36:13:07, credible evidence. 
In addition, the State has deleted the reference to the Federal 
Register in section 74:36:13:08, Compliance assurance monitoring, and 
instead references the July 1, 1999 CFR.
    We have reviewed the revisions identified in (1) and (2). We 
believe we have no legal basis in the Act for approving the Compliance 
Assurance Monitoring rule in section 74:36:13:08 into the SIP. 
Therefore, we are not proposing to approve the revision identified in 
(1) above into the SIP. We believe the revisions identified in (2) 
above are acceptable and are proposing

[[Page 3852]]

to approve them into the SIP, except for the revisions to section 
74:36:13:08, which we indicated cannot be approved into the SIP.

K. Chapter 74:36:16 SDAPCP--Acid Rain Program

    The State's May 6, 1999 and June 30, 2000 submittals revise 
provisions of the State's acid rain rules. We have not previously 
included the State's acid rain provisions in the SIP. We believe we 
have no legal basis in the Act for approving these rules into the SIP. 
Therefore, we are not proposing to incorporate the May 6, 1999 or June 
30, 2000 revisions to the acid rain rules into the SIP.

II. Final Action

    We are proposing to partially approve and partially disapprove 
portions of the revisions to South Dakota's Air Pollution Control 
Regulations submitted by the Governor's designee on May 6, 1999 and 
June 30, 2000, except for the following provisions that we are not 
acting on, or have acted on previously. The sections of the rules that 
we are proposing to approve will replace the same numbered sections 
that have been previously approved into the SIP. We are not acting on 
the following as SIP revisions because they are not appropriate to be 
included in the SIP: sections 74:36:07:06.01; 74:36:07:34-42.01; and 
74:36:13:08; and chapters 74:36:05, 74:36:08, and 74:36:16.
    The SIP provisions that we previously acted on: 74:36:07:06.2, 
74:36:07:07.01, 74:36:07:11 (repealed), 74:36:07:43, and 74:36:11:04.
    Also, the State made revisions to previously approved 111(d) plans. 
Specifically, section 74:36:07:06.01 was updated to incorporate by 
reference 40 CFR part 60, as of July 1, 1998 and sections 74:36:07:34-
42:01 were updated to incorporate by reference 40 CFR part 60, as of 
July 1, 1999. We are proposing to approve these revisions to the 111(d) 
plans.
    We are proposing to approve the removal of chapter 74:36:08 from 
the SIP and updating the table in 40 CFR 61.04(c)(8) to indicate that 
the 40 CFR part 61 NESHAPS are now delegated to the State.
    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. We believe the South Dakota SIP revisions that are the subject 
of this document will not interfere with any applicable requirement 
concerning attainment and reasonable further progress towards 
attainment of the NAAQS or any other applicable requirements of the Act 
because the State's revisions are as no less stringent than 
requirements currently contained in their SIP. Additionally, currently 
there are no nonattainment areas in South Dakota.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 
proposed action 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 
proposed 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

40 CFR Part 61

    Environmental protection, Air pollution control, Arsenic, Asbestos, 
Benzene, Beryllium, Hazardous substances, Mercury, Vinyl chloride.

40 CFR Part 62

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

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

    Dated: January 13, 2003.
Robert E. Roberts,
Regional Administrator, Region VIII.
[FR Doc. 03-1775 Filed 1-24-03; 8:45 am]
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