[Federal Register Volume 69, Number 12 (Tuesday, January 20, 2004)]
[Rules and Regulations]
[Pages 2671-2674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1035]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SIP NO. SD-001-0016a; FRL-7606-6]


Approval and Promulgation of Air Quality Implementation Plans; 
State of South Dakota; Regulations for State Facilities in Rapid City

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action approving State 
Implementation Plan (SIP) revisions submitted by the State of South 
Dakota on June 27, 2002. The June 27, 2002, submittal consists of 
revisions to the administrative rules of South Dakota. These revisions 
add a new chapter to regulate fugitive emissions of particulate matter 
from State facilities and State contractors that conduct a construction 
activity or continuous operation activity in the Rapid City air quality 
control zone. The intended effect of this action is to make the 
revisions to the administrative rules of South Dakota federally 
enforceable. This action is being taken under section 110 of the Clean 
Air Act.

DATES: This rule is effective on March 22, 2004, without further 
notice, unless EPA receives adverse comment by February 19, 2004. 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 submitted by mail to Richard R. 
Long, Director, Air and Radiation Program, Mailcode 8P-AR, 
Environmental Protection Agency, Region 8, 999 18th Street, Suite 300, 
Denver, Colorado, 80202. Comments may also be submitted electronically, 
or through hand delivery/courier. Please follow the detailed 
instructions described in sections (I)(B)(1)(i) through (iii) of the 
SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Laurel Dygowski, EPA, Region 8, 999 
18th Street, Suite 300, Mailcode 8P-AR, Denver, Colorado 80202, (303) 
312-6144, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information 
?

    1. The Regional Office has established an official public 
rulemaking file available for inspection at the Regional Office. EPA 
has established an official public rulemaking file for this action 
under (SD-001-0016). The official public file consists of the documents 
specifically referenced in this action, any public comments received, 
and other information related to this action. Although a part of the 
official docket, the public rulemaking file does not include 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. The official public rulemaking 
file is the collection of materials that is available for public 
viewing at the Air and Radiation Program, EPA Region 8, 999 18th 
Street, Suite 300, Denver, CO. EPA requests that if at all possible, 
you contact the contact listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. You may view the public rulemaking 
file at the Regional Office Monday through Friday, 8 a.m. to 4 p.m., 
excluding Federal holidays. Copies of the incorporation by reference 
material are also available at the Air and Radiation Docket and 
Information Center, U.S. Environmental Protection Agency, Room B-108 
(Mail Code 6102T), 1301 Constitution Ave., NW., Washington, DC 20460.
    2. Copies of the State submittal are also available for public 
inspection during normal business hours, by appointment at the State 
Air Agency. Copies of the State documents relevant to this action are 
also 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.
    3. Electronic Access. You may access this Federal Register document 
electronically through the Regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on, 
Federal rules that have been published in the Federal Register, the 
Government's legal newspaper, and are open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, CBI, or other

[[Page 2672]]

information whose disclosure is restricted by statute. When EPA 
identifies a comment containing copyrighted material, EPA will provide 
a reference to that material in the version of the comment that is 
placed in the official public rulemaking file. The entire printed 
comment, including the copyrighted material, will be available at the 
Regional Office for public inspection.

B. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number by including the text 
``Public comment on proposed rulemaking (SD-001-0016)'' in the subject 
line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA is not required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    i. E-mail. Comments may be sent by electronic mail (e-mail). Please 
send any comments to [email protected] and [email protected] 
and include the text ``Public comment on proposed rulemaking (SD-001-
0016)'' in the subject line. EPA's e-mail system is not an ``anonymous 
access'' system. If you send an e-mail comment directly without going 
through ``Regulations.gov'' (see below), EPA's e-mail system will 
automatically capture your e-mail address. E-mail addresses that are 
automatically captured by EPA's e-mail system are included as part of 
the comment that is placed in the official public docket.
    ii. Regulations.gov. Your use of Regulations.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to 
Regulations.gov at http://www.regulations.gov, then click on the button 
``TO SEARCH FOR REGULATIONS CLICK HERE,'' and select Environmental 
Protection Agency as the Agency name to search on. The list of current 
EPA actions available for comment will be listed. Please follow the 
online instructions for submitting comments. The system is an 
``anonymous access'' system, which means EPA will not know your 
identity, e-mail address, or other contact information unless you 
provide it in the body of your comment.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in section 2, directly 
below. These electronic submissions will be accepted in WordPerfect, 
Word or ASCII file format. Avoid the use of special characters and any 
form of encryption.
    2. By Mail. Send your comments 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-
2466. Please include the text ``Public comment on proposed rulemaking 
(SD-001-0016)'' in the subject line on the first page of your comment.
    3. By Hand Delivery or Courier. Deliver your comments 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 80202-2466. Such deliveries are only accepted 
Monday through Friday, 8 a.m. to 4:55 p.m., excluding Federal holidays.

C. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
as CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection without prior notice. If you have any questions about 
CBI or the procedures for claiming CBI, please consult the person 
identified in the For Further Information Contact section.

II. Summary of SIP Revision

A. Background

    In 1980, the Rapid City Area Air Quality Board (Air Quality Board) 
was created to address non-point source air pollution in Rapid City 
after Rapid City was designated nonattainment by EPA for violation of 
the National Ambient Air Quality Standards (NAAQS) for total suspended 
particulates (TSP). The Air Quality Board addresses non-industrial 
sources of fugitive emissions through the Rapid City Municipal Code 
Chapters 8:34 through 8:44 and Pennington County Ordinance No. 12, 
including the application of reasonable controls and permit 
requirements for dust producing activities, such as general 
construction and road construction.
    When EPA changed the TSP standard to the PM10 standard, Rapid City 
was no longer considered nonattainment for TSP and was designated as 
unclassifiable for PM10. Subsequent to this, South Dakota determined 
that under South Dakota law, SDCL 34A-1-36, the Air Quality Board does 
not have the authority to regulate the State or State contractors since 
the area is not in violation of the PM10 standard. In addition, the 
Department of Environment and Natural Resources only addresses point 
source emissions and fugitive emissions from industrial sources, which 
means that there are no regulations for controlling fugitive emissions 
from State agencies and State contractors who conduct a construction 
activity or continuous operation activity. In addition, State agencies 
or State contractors who emit fugitive dust have less stringent 
requirements than contractors conducting non-State business.
    To address this, the State of South Dakota developed new State air 
quality rules for the Rapid City area that establish a State permitting 
process for State facilities and State contractors that conduct a 
construction activity or continuous operation activity in the Rapid 
City air quality control zone. This would address the concern that 
State

[[Page 2673]]

contractors and State agencies would be contributing excessive amounts 
of fugitive dust that could lead to violations of the PM-10 NAAQS.

B. June 27, 2002, Submittal

    On June 27, 2002, the State of South Dakota submitted a revision to 
the State Implementation Plan (SIP). The June 27, 2002, submittal 
consists of a revision to the Administrative Rules of South Dakota 
(ARSD). This revision adds chapter 74:36:18. Chapter 74:36:18, titled 
Regulations for State Facilities, applies to State contractors and 
State agencies that conduct a construction activity or continuous 
operation activity in the Rapid City air quality control zone. The 
Rapid City air quality control zone is defined as a 10-mile by 14-mile 
area within the following boundaries: (a) Commencing at the northwest 
corner of Section 15, Township 2 north, Range 6 east; (b) east to the 
northeast corner of Section 14, Township 2 north, Range 8 east; (c) 
south to the southeast corner of Section 35, Township 1 north, Range 8 
east; (d) west to the southwest corner of Section 34, Township 1 north, 
Range 6 east; and (e) north to the point of beginning.
    Chapter 74:36:18 was written to closely follow the existing Air 
Quality Board permitting requirements. Chapter 74:36:18 requires State 
contractors and State agencies that conduct a construction activity or 
continuous operation activity in the Rapid City air quality control 
zone that may cause fugitive emissions of particulate matter (PM) to be 
released into the ambient air to obtain a permit issued by the State 
prior to beginning the activity and to apply reasonably available 
control technology (RACT). RACT must be implemented to prevent fugitive 
emissions of PM from exceeding the visible emission limit of 20 percent 
opacity. The opacity limit of 20 percent does not apply if the 
following three meteorological conditions exist: (a) Five consecutive 
days of 0.02 inches or less of precipitation each day excluding dry 
snow; (b) forecasted peak wind gusts greater than 40 miles per hour; 
and (c) forecasted average hourly wind speed greater than 20 miles per 
hour.

III. Final Action

    EPA is taking direct final action approving a State Implementation 
Plan (SIP) revision submitted by the State of South Dakota on June 27, 
2002. The June 27, 2002, submittal consists of a revision to the 
administrative rules of South Dakota. This revision adds a new chapter 
that regulates fugitive emissions of PM from State facilities and State 
contractors that conduct a construction activity or continuous 
operation activity in the Rapid City air quality control zone. The 
intended effect of this action is to make the revision to the 
administrative rules of South Dakota federally enforceable.
    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 today's 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision if adverse 
comments are filed. This rule will be effective March 22, 2004, without 
further notice unless the Agency receives adverse comments by February 
19, 2004. 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. 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.

IV. Statutory and Executive Order Review

    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 (Pub. L. 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

[[Page 2674]]

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 March 22, 2004. 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: December 19, 2003.
Kerrigan G. Clough,
Acting Regional Administrator, Region 8.

0
40 CFR part 52, subpart QQ is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart QQ--South Dakota

0
2. Section 52.2170 is amended by adding paragraph (c)(22) to read as 
follows:


Sec.  52.2170  Identification of plan.

* * * * *
    (c) * * *
    (22) On June 27, 2002, the designee of the Governor of South Dakota 
submitted revisions to the State Implementation Plan. The June 27, 2002 
submittal consists of revisions to the Administrative Rules of South 
Dakota. These revisions add a new chapter 74:36:18, ``Regulations for 
State Facilities in the Rapid City Area''. Chapter 74:36:18 regulates 
fugitive emissions of particulate matter from state facilities and 
state contractors that conduct a construction activity or continuous 
operation activity within the Rapid City air quality control zone.
    (i) Incorporation by reference.
    (A) Chapter 74:36:18 of the Administrative Rules of South Dakota, 
effective July 1, 2002.

[FR Doc. 04-1035 Filed 1-16-04; 8:45 am]
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