[Federal Register Volume 69, Number 90 (Monday, May 10, 2004)]
[Rules and Regulations]
[Pages 25839-25843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10339]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SIP NO. SD-001-0017a; FRL-7652-3]


Approval and Promulgation of Air Quality Implementation Plans; 
State of South Dakota; Revisions to the Administrative Rules of South 
Dakota and New Source Performance Standards Delegation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule and NSPS delegation.

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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 September 12, 2003. The September 12, 2003 submittal revises 
the Administrative Rules of South Dakota, Air Pollution Control 
Program, by modifying the chapters pertaining to definitions, operating 
permits for minor sources, new source review and performance testing. 
In addition, the State made revisions to the Prevention of Significant 
Deterioration program, which has been delegated to the State. The 
intended effect of this action is to make these revisions federally 
enforceable. We are also announcing that on October 31, 2003, we 
updated the delegation of authority for the implementation and 
enforcement of the New Source Performance Standards to the State of 
South Dakota. These actions are being taken under sections 110 and 111 
of the Clean Air Act.

DATES: This rule is effective on July 9, 2004 without further notice, 
unless EPA receives adverse comment by June 9, 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 (EPA), Region 8, 999 18th Street, Suite 
300, Denver, Colorado 80202-2466. 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-001-0017]. 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 Avenue, 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,

[[Page 25840]]

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 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-001-0017]'' 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-
0017]'' 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-001-0017]'' 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 Revisions

    On September 12, 2003, the State of South Dakota submitted 
revisions to its SIP. The specific revisions to the SIP contained in 
the September 12, 2003 submittal are explained below.

A. Administrative Rules of South Dakota (ARSD) 74:36:01--Definitions

    ARSD 74:36:01 was revised to correct a typographical error in the 
definition for ``volatile organic compound.'' ARSD 74:36:01 was also 
revised to include the definitions for two acronyms, SO2 
(sulfur dioxide) and NO2 (nitrogen dioxide), that are used 
in other chapters and not defined.

B. ARSD 74:36:04--Operating Permits for Minor Sources

    ARSD 74:36:04:06 was revised to clarify the number of days it takes 
to receive a new minor source air quality permit. Under 74:36:04:10, 
the State has up to 90 days to decide on a recommendation for a permit 
once a complete application has been submitted. After the State decides 
on its recommendation, the recommendation has to be published in the 
local newspaper to allow the public 30 days to comment on it. The State 
has revised ARSD 74:36:04:06 to clarify that it could take up to 120 
days for a new source to get a permit once a complete application has 
been submitted, but the State has not added additional time in the 
review process.
    The State has also revised ARSD 74:36:04 to provide clarification 
on general permits. Under South Dakota Law 34A-1-56, the State may 
issue a general permit for categories of air pollution sources that are 
similar in operation, have similar air pollution limits, and have 
similar reporting and record keeping requirements. The State has added 
two sections to ARSD

[[Page 25841]]

74:36:04 to specify who may obtain a general permit and also clarify 
that the Secretary has the authority to require a business that is 
eligible for a general permit to apply for and obtain a general permit.

C. ARSD 74:36:10--New Source Review (NSR)

    In order to maintain their NSR program, the State has made 
revisions to this chapter to make it equivalent to EPA's regulations. 
On December 31, 2002, EPA finalized revisions to the NSR program, which 
became effective on March 3, 2003 (see 67 FR 80186), including 
revisions to baseline emissions determinations, actual-to-future-actual 
methodology, plantwide applicability limitations, clean units, and 
pollution control projects. The State has revised ARSD 74:36:10 to 
incorporate these changes and make their NSR program equivalent to EPA 
regulations.

D. ARSD 74:36:11--Performance Testing

    On June 30, 2000, the State submitted revisions to ARSD 
74:36:11:01. On January 27, 2003, we proposed to approve the revisions 
to ARSD 74:36:11:01, except for the second sentence of this section, 
which we determined contained a director's discretion provision (see 68 
FR 3848). On April 7, 2003, we issued a final rule concerning the 
January 27, 2003 proposed rule (68 FR 16728) and inadvertently did not 
include the disapproval of the second sentence of ARSD 74:36:11:01, as 
was stated in the proposed rule. In its subsequent September 12, 2003 
submittal, the State has removed the director's discretion provision 
from ARSD 74:36:11:01 and we are approving this revision into their 
SIP.

III. Revisions to Delegated Programs

A. ARSD 74:36:07--New Source Performance Standards (NSPS)

    The September 12, 2003 submittal by the State updated the effective 
date of the incorporated by reference NSPS to July 1, 2002. EPA is 
announcing that on October 31, 2003, we updated the delegation of 
authority for the implementation and enforcement of the NSPS to the 
State. The October 31, 2003 letter of delegation to the State follows:

Steven M. Pirner, Secretary, South Dakota Department of Environment 
and Natural Resources, 523 East Capitol, Pierre, SD 57501-3182.
Dear Mr. Pirner: On September 12, 2003, the State submitted a 
revision to the Air Pollution Control Program for South Dakota. 
Specifically, the State revised its rules to incorporate the July 1, 
2002 Code of Federal Regulations. This revision, in effect, updates 
the citation of the incorporated Federal New Source Performance 
Standards (NSPS) to July 1, 2002.
    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 Montana 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, E, Ea, Eb, Ec, F, I, K, Ka, Kb, O, 
Y, DD, GG, HH, LL, QQ, RR, VV, XX, AAA, JJJ, NNN, OOO, RRR, SSS, UUU 
and WWW in 40 CFR Part 60 as in effect on July 1, 2002.
    (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) The Department of Environment and Natural Resources (DENR) 
and EPA will continue a system of communication sufficient to 
guarantee that each office is always fully informed and current 
regarding compliance status of the subject sources and 
interpretation of the regulations.
    (D) Enforcement of the NSPS in the State will be the primary 
responsibility of the DENR. If the DENR determines that such 
enforcement is not feasible and so notifies EPA, or where the DENR 
acts in a manner inconsistent with the terms of this delegation, EPA 
may exercise its concurrent enforcement authority pursuant to 
section 113 of the Act, as amended, with respect to sources within 
the State of South Dakota subject to NSPS.
    (E) The State of South Dakota will at no time grant a variance 
or waiver from compliance with NSPS regulations. Should DENR grant 
such a variance or waiver, EPA will consider the source receiving 
such relief to be in violation of the applicable Federal regulation 
and initiate enforcement action against the source pursuant to 
section 113 of the Act. The granting of such relief by the DENR 
shall also constitute grounds for revocation of delegation by EPA.
    (F) If at anytime there is a conflict between a State regulation 
and a Federal regulation (40 CFR Part 60), the Federal regulation 
must be applied if it is more stringent than that of the State. If 
the State does not have the authority to enforce the more stringent 
Federal regulation, this portion of the delegation may be revoked.
    (G) If the Regional Administrator determines that a State 
procedure for enforcing or implementing the NSPS is inadequate, or 
is not being effectively carried out, this delegation may be revoked 
in whole or part. Any such revocation shall be effective as of the 
date specified in a Notice of Revocation to the DENR.
    (H) Acceptance of this delegation of presently promulgated NSPS 
does not commit the State of South Dakota to accept delegation of 
future standards and requirements. A new request for delegation will 
be required for any standards not included in the State's request of 
September 12, 2003.
    (I) Upon approval of the Regional Administrator of EPA Region 
VIII, the Secretary of DENR may subdelegate his authority to 
implement and enforce the NSPS to local air pollution control 
authorities in the State when such authorities have demonstrated 
that they have equivalent or more stringent programs in force.
    (J) The State of South Dakota must require reporting of all 
excess emissions from any NSPS source in accordance with 40 CFR 
60.7(c).
    (K) Performance tests shall be scheduled and conducted in 
accordance with the procedures set forth in 40 CFR Part 60 unless 
alternate methods or procedures are approved by the EPA 
Administrator. Although the Administrator retains the exclusive 
right to approve equivalent and alternate test methods as specified 
in 40 CFR 60.8(b)(2) and (3), the State may approve minor changes in 
methodology provided these changes are reported to EPA Region VIII. 
The Administrator also retains the right to change the opacity 
standard as specified in 40 CFR 60.11(e).
    (L) Determinations of applicability such as those specified in 
40 CFR 60.5 and 60.6 shall be consistent with those which have 
already been made by the EPA.
    (M) Alternatives to continuous monitoring procedures or 
reporting requirements, as outlined in 40 CFR 60.13(i), may be 
approved by the State with the prior concurrence of the Regional 
Administrator.
    (N) If a source proposes to modify its operation or facility 
which may cause the source to be subject to NSPS requirements, the 
State shall notify EPA Region VIII and obtain a determination on the 
applicability of the NSPS regulations.
    (O) Information shall be made available to the public in 
accordance with 40 CFR 60.9. Any records, reports, or information 
provided to, or otherwise obtained by, the State in accordance with 
the provisions of these regulations shall be made available to the 
designated representatives of EPA upon request.
    (P) All reports required pursuant to the delegated NSPS should 
not be submitted to the EPA Region VIII office, but rather to the 
DENR.
    (Q) As 40 CFR Part 60 is updated, South Dakota should revise its 
regulations

[[Page 25842]]

accordingly and in a timely manner and submit to EPA requests for 
updates to its delegation of authority.
    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,

Robert E. Roberts,
Regional Administrator.
Enclosures
cc: Brian Gustafson, Administrator, South Dakota Air Quality 
Program.
Enclosure to Letter Delegating NSPS in 40 CFR Part 60, Effective 
Through July 1, 2002, 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(f).
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. ARSD 74:36:09--Prevention of Significant Deterioration (PSD)

    On July 6,1994, EPA delegated the authority to South Dakota to 
implement and enforce the Federal PSD permitting regulations (see 59 FR 
47260). In order to maintain their delegation for the implementation 
and enforcement of the PSD program, the State has made revisions to 
ARSD 74:36:09 to make it equivalent to EPA's regulations. On December 
31, 2002, EPA finalized revisions to the PSD portion of the NSR 
program, which became effective on March 3, 2003 (see 67 FR 80186), 
including revisions to baseline emissions determinations, actual-to-
future-actual methodology, plantwide applicability limitations, clean 
units, and pollution control projects. The State made revisions to 
74:36:09 to incorporate these changes and make it equivalent to EPA 
regulations. The delegation of the PSD program to the State still 
carries the same terms of delegation as outlined in the 1994 Federal 
Register notice (59 FR 47260). In delegating the PSD program to the 
State, the State agrees to follow EPA's interpretations of the 
regulations, as articulated in regulatory preambles, guidance, and 
other Agency statements.

IV. Final Action

    EPA is approving revisions to the South Dakota SIP submitted by the 
State on September 12, 2003. The revisions we are approving are 
revisions to ARSD 74:36:01, 74:36:04, 74:36:10, and 74:36:11. We are 
also announcing that on October 31, 2003, we updated the delegation of 
authority for the implementation and enforcement of the NSPS to the 
State of South Dakota.
    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 of the following: (1) 
The revisions to the SIP meet Federal requirements and allow the State 
to include the most recent version of Federal regulations; and (2) the 
NSPS delegation meets the requirements of section 111(c) of the CAA and 
40 CFR

[[Page 25843]]

part 60. 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. 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 July 9, 2004 without 
further notice unless the Agency receives adverse comments by June 9, 
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.

V. 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 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 July 9, 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: April 7, 2004.
Robert E. Roberts,
Regional Administrator, Region 8.

0
40 CFR part 52 is amended to read 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)(23) to read as 
follows:


Sec.  52.2170  Identification of plan.

* * * * *
    (c) * * *
    (23) On September 12, 2003, the designee of the Governor of South 
Dakota submitted revisions to the State Implementation Plan. The 
September 12, 2003 submittal revises the following chapters of the 
Administrative Rules of South Dakota: 74:36:01, 74:36:04, 74:36:10 and 
74:36:11.
    (i) Incorporation by reference.
    (A) Administrative Rules of South Dakota, Chapter 74:36:01, 
sections 74:36:01:01(77), 74:36:01:01(80), and 74:36:01:01(81); Chapter 
74:36:04, sections 74:36:04:06, 74:36:04:32 and 74:36:04:33; Chapter 
74:36:10, except section 74:36:10:01; and Chapter 74:36:11, section 
74:36:11:01, effective September 1, 2003.

[FR Doc. 04-10339 Filed 5-7-04; 8:45 am]
BILLING CODE 6560-50-P