[Federal Register Volume 76, Number 92 (Thursday, May 12, 2011)]
[Proposed Rules]
[Pages 27622-27629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11723]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0301; FRL-9304-7]


Approval and Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient 
Air Quality Standards; South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State Implementation Plan 
(SIP) submission from the State of South Dakota to demonstrate that the 
SIP meets the requirements of section 110(a)(1) and (2) of the Clean 
Air Act (CAA) for the National Ambient Air Quality Standards (NAAQS) 
promulgated for ozone on July 18, 1997. Section 110(a)(1) of the CAA 
requires that each state, after a new or revised NAAQS is promulgated, 
review their

[[Page 27623]]

SIPs to ensure that they meet the requirements of the ``infrastructure 
elements'' of section 110(a)(2). The State of South Dakota submitted a 
certification of their Infrastructure SIP for the 1997 ozone NAAQS, 
dated February 1, 2008, which was determined to be complete on March 
27, 2008 (73 FR 16205). EPA does not propose to act on the State's 
February 1, 2008 submission to meet the requirements of section 
110(a)(2)(D)(i) of the CAA, relating to interstate transport of air 
pollution, for the 1997 ozone NAAQS. EPA approved the State's 
interstate transport SIP submission on May 8, 2008 (73 FR 26019).

DATES: Written comments must be received on or before June 13, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2010-0301, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Director, Air Program, Environmental Protection 
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129.
     Hand Delivery: Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. Such deliveries are only accepted 
Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays. 
Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2010-0301. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA, without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. 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. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to section I, General Information, of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129. EPA requests that if at all possible, you 
contact the individual listed in the FOR FURTHER INFORMATION CONTACT 
section to view the hard copy of the docket. You may view the hard copy 
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kathy Dolan, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.

Table of Contents

I. General Information
II. Background
III. What Infrastructure elements are required under sections 
110(a)(1) and (2)?
IV. How did the State of South Dakota address the infrastructure 
elements of Sections 110(a)(1) and (2)?
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to EPA through http://www.regulations.gov or e-mail. Clearly 
mark the part or all of the information that you claim to be CBI. For 
CBI information on a disk or CD-ROM that you mail to EPA, 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 claimed as 
CBI. In addition to one complete version of the comment that includes 
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 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register, date, and page number);
    Follow directions and organize your comments;
    Explain why you agree or disagree;
    Suggest alternatives and substitute language for your requested 
changes;
    Describe any assumptions and provide any technical information and/
or data that you used;
    If you estimate potential costs or burdens, explain how you arrived 
at your estimate in sufficient detail to allow for it to be reproduced;
    Provide specific examples to illustrate your concerns, and suggest 
alternatives;
    Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats; and,
    Make sure to submit your comments by the comment period deadline 
identified.

[[Page 27624]]

II. Background

    On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the 
previous 1-hour averaging period, and the level of the NAAQS was 
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By 
statute, SIPs meeting the requirements of sections 110(a)(1) and (2) 
are to be submitted by states within three years after promulgation of 
a new or revised standard. Section 110(a)(2) provides basic 
requirements for SIPs, including emissions inventories, monitoring, and 
modeling, to assure attainment and maintenance of the standards. These 
requirements are set out in several ``infrastructure elements,'' listed 
in section 110(a)(2).
    Section 110(a) imposes the obligation upon states to make a SIP 
submission to EPA for a new or revised NAAQS, and the contents of that 
submission may vary depending upon the facts and circumstances. In 
particular, the data and analytical tools available at the time the 
state develops and submits the SIP for a new or revised NAAQS affects 
the content of the submission. The contents of such SIP submission may 
also vary depending upon what provisions the state's existing SIP 
already contains. In the case of the 1997 ozone NAAQS, states typically 
have met the basic program elements required in section 110(a)(2) 
through earlier SIP submissions in connection with previous NAAQS.
    In a guidance issued on October 2, 2007, EPA noted that, to the 
extent an existing SIP already meets the section 110(a)(2) 
requirements, states need only certify that fact via a letter to 
EPA.\1\
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    \1\ Memorandum from William T. Harnett, Director, Air Quality 
Policy Division, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards'' (Oct. 2, 2007).
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    On 3/27/08, EPA published a final rulemaking entitled, 
``Completeness Findings for section 110(a) State Implementation Plans; 
8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a finding for 
each state that it had submitted or failed to submit a complete SIP 
that provided the basic program elements of section 110(a)(2) necessary 
to implement the 1997 8-hour ozone NAAQS. In particular, EPA found that 
the State of South Dakota had submitted a complete SIP to meet these 
requirements.

III. What infrastructure elements are required under Section 110(a)(1) 
and (2)?

    Section 110(a)(1) provides the procedural and timing requirements 
for SIP submissions after a new or revised NAAQS is promulgated. 
Section 110(a)(2) lists specific elements the SIP must contain or 
satisfy. These infrastructure elements include requirements such as 
modeling, monitoring, and emissions inventories, which are designed to 
assure attainment and maintenance of the NAAQS. The elements that are 
the subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D)(ii): Interstate and international pollution.
     110(a)(2)(E): Adequate resources and authority.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials; 
public notification; and prevention of significant deterioration (PSD) 
and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    A detailed discussion of each of these elements is contained in the 
next section.
    Two elements identified in section 110(a)(2) are not governed by 
the three- year submission deadline of section 110(a)(1) and are 
therefore not addressed in this action. These elements relate to part D 
of Title I of the CAA, and submissions to satisfy them are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are due at the same time nonattainment area plan requirements 
are due under section 172. The two elements are: (i) Section 
110(a)(2)(C) to the extent it refers to permit programs (known as 
``nonattainment new source review (NSR)'') required under part D, and 
(ii) section 110(a)(2)(I) pertaining to the nonattainment planning 
requirements of part D. As a result, this action does not address 
infrastructure elements related to the nonattainment NSR portion of 
section 110(a)(2)(C) or related to 110(a)(2)(I).
    This action also does not address the ``interstate transport'' 
requirements of element 110(a)(2)(D)(i). In a separate action, EPA 
approved the State's submission to meet the requirements of 110 
(a)(2)(D)(i) for the 1997 ozone NAAQS (73 FR 26019).

IV. How did the State of South Dakota address the elements of the 
infrastructure provisions of Section 110(a)(2)?

    1. Emission limits and other control measures: Section 110(a)(2)(A) 
requires SIPs to include enforceable emission limitations and other 
control measures, means, or techniques (including economic incentives 
such as fees, marketable permits, and auctions of emissions rights), as 
well as schedules and timetables for compliance as may be necessary or 
appropriate to meet the applicable requirements of this Act.
    a. South Dakota's response to this requirement: The rules in the 
Administrative Rules of South Dakota (ARSD) Chapter 74:36:04 (Operating 
permits for minor sources), 74:36:05 (Operating permits for part 70 
sources), 74:35:06 (Regulated air pollutant emissions), 74:36:07 (New 
source performance standards), 74:36:08 (National emission standards 
for hazardous air pollutants), 74:36:09 (Prevention of significant 
deterioration), and 74:36:10 (New source review) provide enforceable 
emission limits and other control measures, means or techniques, 
schedules for compliance and other related matters necessary to 
maintain South Dakota in attainment with the federal NAAQS. Authority 
to promulgate these rules is contained in South Dakota Codified Laws 
(SDCL) 34A-1-1, 34A-1-6, 34A-1-18, 34A-1-19.
    b. EPA analysis: South Dakota's SIP meets the requirements of CAA 
section 110(a)(2)(A) for the 1997 ozone NAAQS, subject to the following 
clarifications. First, this infrastructure element does not require the 
submittal of regulations or emission limitations developed specifically 
for attaining the 1997 ozone NAAQS. Furthermore, South Dakota has no 
areas designated as nonattainment for the 1997 ozone NAAQS. As a 
result, the South Dakota SIP contains no emissions limitations specific 
to ozone and/or its precursors. Instead, South Dakota regulates 
emissions of ozone and its precursors through its SIP-approved major 
and minor source permitting programs.\2\ This suffices, in the case of

[[Page 27625]]

South Dakota, to meet the requirements of section 110(a)(2)(A) for the 
1997 ozone NAAQS.
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    \2\ Certain rules cited by South Dakota--its title V program 
(ARSD 74:36:05), new source performance standards (ARSD 74:36:07), 
and national emissions standards for hazardous air pollutants (ARSD 
74:36:08)--are not required for inclusion into South Dakota's SIP 
and are therefore not considered by EPA in this action.
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    Second, in this action, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. A number of states have such 
provisions which are contrary to the CAA and existing EPA guidance (52 
FR 45109, Nov. 24, 1987), and the Agency plans to take action in the 
future to address such state regulations. In the meantime, EPA 
encourages any state having a director's discretion or variance 
provision which is contrary to the CAA and EPA guidance to take steps 
to correct the deficiency as soon as possible.
    Finally, in this action, EPA is also not proposing to approve or 
disapprove any existing SIP provisions with regard to excess emissions 
during startup, shutdown, or malfunction (SSM) of operations at a 
facility. A number of states have SSM provisions which are contrary to 
the CAA and existing EPA guidance \3\ and the Agency plans to address 
such state regulations in the future. In the meantime, EPA encourages 
any state having a deficient SSM provision to take steps to correct it 
as soon as possible.
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    \3\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, Memorandum to EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Excess 
Emissions During Malfunctions, Startup, and Shutdown.'' (Sept. 20, 
1999).
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    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) 
requires SIPs to provide for establishment and operation of appropriate 
devices, methods, systems, and procedures necessary to (i) monitor, 
compile, and analyze data on ambient air quality, and (ii) upon 
request, make such data available to the Administrator.
    a. South Dakota's response to this requirement: The rules in ARSD 
74:36:02 define the goals, NAAQS, air monitoring methods and monitoring 
requirements provided for establishment and operation of ambient air 
quality monitors, collecting and analyzing ambient air quality data and 
making these data available to EPA. Authority used to promulgate these 
rules is contained in SDCL 34A-1-6 and 34A-1-15.
    b. EPA analysis: South Dakota's air monitoring programs and data 
systems meet the requirements of CAA section 110(a)(2)(B) for the 1997 
ozone NAAQS. The South Dakota Department of Environment and Natural 
Resources (DENR) 2008 Ambient Air Monitoring Annual Network Plan was 
approved by EPA Region 8 on March 23, 2009.
    3. Program for enforcement of control measures: Section 
110(a)(2)(C) requires SIPs to include a program to provide for the 
enforcement of the measures described in subparagraph (A), and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to assure that 
NAAQS are achieved, including a permit program as required in parts C 
and D.
    a. South Dakota's response to this requirement: SDCL 34A-1-39 
through 34A-1-54 and 34A-1-62 provides DENR with the authority to 
provide enforcement of all South Dakota SIP measures and the 
regulations under ARSD Chapter 74:36:09 (Prevention of significant 
deterioration) and 74:36:10 (New source review).
    b. EPA analysis: As explained above, in this action EPA is not 
evaluating non-attainment related provisions, such as the nonattainment 
New Source Review (NSR) program required by part D of the Act. In 
addition, South Dakota has no nonattainment areas for the 1997 ozone 
NAAQS and is therefore not required at this point to have a 
corresponding nonattainment NSR program. In this action, EPA is 
evaluating the State's PSD program as required by part C of the Act, 
and the State's minor NSR program as required by 110(a)(2)(C).
    South Dakota's SIP-approved PSD program incorporates by reference 
(with certain exceptions) the federal PSD program in 40 CFR 52.21 as of 
July 1, 2005 (72 FR 72617). As described in our notice of approval of 
the program (72 FR 72617), South Dakota's PSD program met the general 
requirements of CAA section 110(a)(2)(C) as of that date.

Greenhouse Gas Regulation

    EPA notes a potential inconsistency between South Dakota's February 
1, 2008 infrastructure SIP certification and EPA's recently promulgated 
rule, ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in 
State Implementation Plans'' (``PSD SIP Narrowing Rule''), 75 FR 82536 
(Dec. 30, 2010). In the PSD SIP Narrowing Rule, EPA withdrew its 
previous approval of South Dakota's PSD program to the extent that it 
applied PSD permitting to greenhouse gas (GHG) emissions increases from 
GHG-emitting sources below thresholds set in EPA's June 3, 2010 
``Prevention of Significant Deterioration and Title V Greenhouse Gas 
Tailoring Rule'' (``Tailoring Rule''), 75 FR 31514. EPA withdrew its 
approval on the basis that the State lacked sufficient resources to 
issue PSD permits to such sources at the statutory thresholds in effect 
in the previously-approved PSD program. After the PSD SIP Narrowing 
Rule, the portion of South Dakota's PSD SIP from which EPA withdrew its 
approval had the status of having been submitted to EPA but not yet 
acted upon. In its February 1, 2008 certification, South Dakota relied 
on its PSD program as approved at that date--which was before December 
30, 2010, the effective date of the PSD SIP Narrowing Rule--to satisfy 
the requirements of infrastructure element 110(a)(2)(C). Given EPA's 
basis for the PSD SIP Narrowing Rule, EPA proposes approval of the 
South Dakota infrastructure SIP for infrastructure element (C) if 
either the State clarifies (or modifies) its certification to make 
clear that the State relies only on the portion of the PSD program that 
remains approved after the PSD SIP Narrowing Rule issued on December 
30, 2010, and for which the State has sufficient resources to 
implement, or the State acts to withdraw from EPA consideration the 
remaining portion of its PSD program submission that would have applied 
PSD permitting to GHG sources below the Tailoring Rule thresholds. In 
the alternative, if South Dakota does not take either action, EPA 
proposes to disapprove the infrastructure SIP to the extent it 
incorporates that portion of the previously-approved PSD program from 
which EPA withdrew its approval in the PSD SIP Narrowing Rule, which is 
the portion which would have applied PSD permitting requirements to GHG 
emissions increases from GHG-emitting sources below the Tailoring Rule 
thresholds. Such disapproval, if finalized, would not result in a need 
for South Dakota to resubmit a SIP revision, sanctions, or a federal 
implementation plan (FIP).

Regulation of Ozone Precursors

    In order for South Dakota's SIP-approved PSD program to satisfy the 
requirements of section 110(a)(2)(C) for the 1997 ozone NAAQS, the 
program must also properly regulate ozone precursors. On November 29, 
2005, EPA promulgated the phase 2 implementation rule for the 1997 
ozone NAAQS, which includes requirements for PSD programs to treat 
nitrogen oxides as a precursor for ozone (72 FR 71612). The phase 2 
implementation rule accordingly updated the federal program at 40 CFR 
52.21 to meet these requirements, effective January 30, 2006. This 
effective date is after the July 1, 2005 date of incorporation of 40 
CFR 52.21 by the currently approved South

[[Page 27626]]

Dakota SIP. In other words, South Dakota's current SIP-approved PSD 
program does not meet the requirements of the phase 2 ozone 
implementation rule.
    On June 14, 2010, the State submitted to EPA a SIP revision that 
(among other things) revises ARSD 74:36:09 (Prevention of significant 
deterioration) to incorporate by reference the federal PSD program in 
40 CFR 52.21 as of July 1, 2009. As a result of the revised 
incorporation date, the submitted PSD program meets the requirements of 
the phase 2 ozone implementation rule. EPA therefore proposes to 
concurrently approve the portion of the June 14, 2010 submission 
revising ARSD 74:36:09, with the following exception.
    Consistent with the Tailoring Rule, the SIP PSD Narrowing Rule, and 
the discussion above, EPA proposes to disapprove the revision of ARSD 
74:36:09 in the June 14, 2010 submission to the extent that the 
revision applies PSD permitting to GHG emissions increases from GHG-
emitting sources below Tailoring Rule thresholds. The Tailoring Rule 
modified the federal PSD program at 40 CFR 52.21, effective August 2, 
2010, to incorporate the Tailoring Rule thresholds.\4\ 75 FR at 31606-
07. This effective date is after July 1, 2009, the date of 
incorporation of 40 CFR 52.21 in South Dakota's June 14, 2010 
submission. Therefore, in order to ensure consistency with the 
Tailoring Rule and the PSD SIP Narrowing Rule, it is necessary for EPA 
to propose to disapprove the revision to the extent it applies PSD 
permitting to GHG emissions increases from GHG-emitting sources below 
Tailoring Rule thresholds. As mentioned above, this disapproval will 
not result in a need for South Dakota to submit a SIP revision, 
sanctions, or a FIP.
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    \4\ Note that this is the effective date of the modification of 
52.21, not the initial date of applicability of the thresholds, 
which was January 2, 2011.
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Minor New Source Review

    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act, which regulates emissions of ozone and 
its precursors. On September 6, 1995, EPA approved extensive changes to 
the State's minor NSR program for incorporation into the SIP, and there 
was at the time no objection to the provisions of this program (60 FR 
46222). Since then, the State and EPA have relied on the existing State 
minor NSR program to assure that new and modified sources not captured 
by the major NSR permitting programs do not interfere with attainment 
and maintenance of the NAAQS.
    In this action, EPA is proposing to approve South Dakota's 
infrastructure SIP for the 1997 ozone NAAQS with respect to the general 
requirement in section 110(a)(2)(C) to include a program in the SIP 
that regulates the modification and construction of any stationary 
source as necessary to assure that the NAAQS are achieved. EPA is not 
proposing to approve or disapprove the State's existing minor NSR 
program itself to the extent that it is inconsistent with EPA's 
regulations governing this program. A number of states may have minor 
NSR provisions that are contrary to the existing EPA regulations for 
this program. EPA intends to work with states to reconcile state minor 
NSR programs with EPA's regulatory provisions for the program. The 
statutory requirements of section 110(a)(2)(C) provide for considerable 
flexibility in designing minor NSR programs, and it may be time to 
revisit the regulatory requirements for this program to give the states 
an appropriate level of flexibility to design a program that meets 
their particular air quality concerns, while assuring reasonable 
consistency across the country in protecting the NAAQS with respect to 
new and modified minor sources.
    4. Interstate transport: Section 110(a)(2)(D)(i) requires SIPs to 
contain adequate provisions prohibiting, consistent with the provisions 
of this title, any source or other type of emissions activity within 
the state from emitting any air pollutant in amounts which will (I) 
contribute significantly to nonattainment in, or interfere with 
maintenance by, any other state, with respect to any such national 
primary or secondary ambient air quality standard, or (II) interfere 
with measures required to be included in the applicable implementation 
plan for any other state under part C to prevent significant 
deterioration of air quality or to protect visibility.
    a. South Dakota's response to this requirement: South Dakota 
submitted its Interstate Transport SIP to EPA on May 25, 2007.
    b. EPA Analysis: EPA approved the State's Interstate Transport 
provisions for the 1997 ozone NAAQS on May 8, 2008 (73 FR 26019). EPA 
is taking no action relevant to section 110(a)(2)(D)(i) in this 
proposal.
    5. Interstate and International transport provisions: Section 
110(a)(2)(D)(ii) requires that each SIP shall contain adequate 
provisions insuring compliance with applicable requirements of sections 
126 and 115 (relating to interstate and international pollution 
abatement).
    a. South Dakota's response to this requirement: South Dakota 
submitted its Interstate Transport SIP to EPA on May 25, 2007.
    b. EPA Analysis: Section 126(a) of the CAA requires notification to 
affected, nearby states of major proposed new (or modified) sources. 
Sections 126(b) and (c) pertain to petitions by affected states to the 
Administrator regarding sources violating the ``interstate transport'' 
provisions of section 110(a)(2)(D)(i). Section 115 of the CAA similarly 
pertains to international transport of air pollution.
    South Dakota's SIP-approved PSD program incorporates by reference 
the Federal PSD program at 40 CFR 52.21. However, South Dakota 
separately implements public notice requirements by incorporating by 
reference (with certain modifications) 40 CFR 51.166(q). In particular, 
the SIP's incorporation of 51.166(q)(2)(iii), which requires notice to 
states whose lands may be affected by the emissions of sources subject 
to PSD, satisfies the notice requirement of section 126(a).
    South Dakota has no pending obligations under sections 126(c) or 
115(b); therefore, its SIP currently meets the requirements of those 
sections. The SIP therefore meets the requirements of 110(a)(2)(D)(ii) 
for the 1997 ozone NAAQS.
    6. Adequate resources and authority: Section 110(a)(2)(E) requires 
states to provide (i) necessary assurances that the state will have 
adequate personnel, funding, and authority under state law to carry out 
the SIP (and is not prohibited by any provision of federal or state law 
from carrying out the SIP or portion thereof), (ii) requires that the 
state comply with the requirements respecting state boards under 
section 128, and (iii) necessary assurances that, where the state has 
relied on a local or regional government, agency, or instrumentality 
for the implementation of any SIP provision, the state has 
responsibility for ensuring adequate implementation of such SIP 
provision.
    a. South Dakota's response to this requirement: SDCL 34A-1-4, 34A-
1-7 through 34A-1-10 provides DENR with adequate personnel to carry out 
South Dakota's SIP and related issues. SDCL 34A-1-57 through 34A-1-60, 
and DENR's agreement with EPA for 103 and 105 grants and associated 
matching state funds provides DENR with the funding necessary to carry 
out South Dakota's SIP and related issues. SDCL 34A-1 provides DENR 
with the legal authority

[[Page 27627]]

to carry out South Dakota's SIP and related issues.
    b. EPA Analysis: South Dakota's SIP meets the requirements of 
section 110(a)(2)(E) for the 1997 ozone NAAQS. SDCL 34A-1-57 through 
34A-1-60 provides adequate authority for the State of South Dakota and 
the DENR to carry out its SIP obligations with respect to the 1997 
ozone NAAQS. The State receives sections 103 and 105 grant funds 
through its Performance Partnership Grant along with required state 
matching funds to provide funding necessary to carry out South Dakota's 
SIP requirements. South Dakota's resources meet the requirements of CAA 
section 110(a)(2)(E). Finally, SDCL 1-40-25.1 requires the Board of 
Minerals and Environment to be composed in accordance with section 128 
of the CAA.
    7. Stationary source monitoring and reporting: Section 110(a)(2)(F) 
requires (i) the installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources to monitor emissions from such 
sources, (ii) period reports on the nature and amounts of emissions and 
emissions-related data from such sources, and (iii) correlation of such 
reports by the state agency with any emission limitations or standards 
established pursuant to the Act, which reports shall be available at 
reasonable times for public inspection.
    a. South Dakota's response to this requirement: The rules in ARSD 
Chapter 74:36:04 (Operating permits for minor sources), 74:35:05 
(Operating permits for part 70 sources), 74:37:11 (Performance testing) 
and 74:36:13 (Continuous emission monitoring systems) establish a 
system to monitor emissions from stationary sources and periodic 
emissions reports. Authority to promulgate these rules is contained in 
SDCL 34A-a-6 and SDCL 34A-1-12.
    b. EPA Analysis: South Dakota's SIP provides for monitoring, 
recordkeeping, and reporting requirements for sources subject to minor 
and major source permitting. As mentioned above, the SIP contains no 
other, specific emissions limitations on ozone or its precursors. South 
Dakota's SIP therefore meets the requirements of section 110(a)(2)(F) 
for the 1997 ozone NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) requires states to 
provide for authority to address activities causing imminent and 
substantial endangerment to public health, including contingency plans 
to implement the emergency episode provisions in their SIPs.
    a. South Dakota's response to this requirement: The rules in ARSD 
Chapter 74:36:03 (Air quality episodes) adopt by reference the criteria 
in 40 CFR 51.151 as the air quality episode plan to address activities 
causing imminent and substantial endangerment to public health, 
including contingency plans to implement the emergency episode 
provisions of the South Dakota SIP. Authority to promulgate these rules 
is contained in SDCL 34A-1-6, 34A-1-15, and 34A-1-45. The episode 
criteria specified in this chapter for ozone are based on an 8-hour 
average ozone level at a monitoring site. These criteria have 
previously been approved by EPA as adequate to address ozone emergency 
episodes.
    b. EPA analysis: SDCL 34A-1-45 provides DENR with general emergency 
authority comparable to that in section 303 of the Act. The SIP also 
requires DENR to follow criteria in 40 CFR 51.151 in proclaiming an 
emergency episode and to develop a contingency plan. The contingency 
plan, though, has not itself been incorporated into the SIP. However, 
South Dakota has not monitored any values above the priority cut point 
for ozone. See 40 CFR 51.150(b)(5). The SIP therefore meets the 
requirements of 110(a)(2)(G) for the 1997 ozone NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan (i) from time to time as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard, and (ii), 
except as provided in paragraph (3)(C), whenever the Administrator 
finds on the basis of information available to the Administrator that 
the SIP is substantially inadequate to attain the NAAQS which it 
implements or to otherwise comply with any additional requirements 
under this Act.
    a. South Dakota's response to this requirement: SDCL 34A-1-6 
provides DENR with the authority to revise South Dakota's SIP in 
response to changes to the federal NAAQS, availability of improved 
methods for attaining the federal standards, or in response to an EPA 
finding that the SIP is substantially inadequate.
    b. EPA analysis: South Dakota's statutory provision at SDCL 34A-1-6 
gives DENR sufficient authority to meet the requirements of 
110(a)(2)(H).
    10. Nonattainment Area Plan or Plan Revision under Part D: Section 
110(a)(2)(I) requires that a SIP or SIP revision for an area designated 
as a nonattainment area must meet the applicable requirements of part D 
of this subchapter (relating to nonattainment areas).
    a. EPA analysis for Section 110(a)(2)(I): As noted above, the 
specific nonattainment area plan requirements of section 110(a)(2)(I) 
are subject to the timing requirement of section 172, not the timing 
requirement of section 110(a)(1). This element is therefore not 
applicable to this action. EPA will take action on part D attainment 
plans through a separate process.
    11. Consultation with government officials, public notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires that each 
SIP meet the applicable requirements of section 121 of this title 
(relating to consultation), section 127 of this title (relating to 
public notification), and part C of this subchapter (relating to 
prevention of significant deterioration of air quality and visibility 
protection).
    a. South Dakota's response to this requirement: SDCL 34A-1-1 and 
34-1-10 provide DENR with the authority to consult with local 
governments, other states, federal government, etc. SDCL 1-40-31 and 
34A-1-9 provide DENR with the authority to collect and disseminate 
information and provide full public inspection and disclosure of all 
non-confidential public records related to DENR and those activities 
within its jurisdiction. The public is notified of any concentrations 
that exceed the NAAQS through DENR's Air Quality program website that 
contains the daily concentrations updated hourly from five sites 
covering 17 parameters from continuous analyzers and monitors located 
throughout the state. Four of these sites report hourly ozone levels to 
the website and to the AirNow EPA database. Through this site, the 
public is notified of high concentration periods. The rules in ARSD 
Chapter 74:36:09 (Prevention of significant deterioration) adopt by 
reference federal regulations under 40 CFR parts 51 and 52 and provide 
DENR with regulations necessary to meet the applicable requirements of 
part C of the federal CAA related to PSD and visibility protection. 
South Dakota's PSD rules were approved in South Dakota's SIP on January 
22, 2008. Authority to promulgate these rules is contained in SDCL 34A-
1-6.
    b. EPA Analysis: The State has demonstrated that it has the 
authority and rules in place to provide a process of consultation with 
general purpose local governments, designated organizations of elected 
officials of local governments and any Federal Land Manager having 
authority over federal land to which the SIP applies,

[[Page 27628]]

consistent with the requirements of CAA section 121. Furthermore, EPA 
previously addressed the requirements of CAA section 127 for the South 
Dakota SIP. (45 FR 58528, Sept. 4, 1980.)
    As discussed above, the State has a SIP-approved PSD program that 
incorporates by reference the federal program at 40 CFR 52.21. EPA has 
further evaluated South Dakota's SIP-approved PSD program in this 
proposed action under IV.3, element 110(a)(2)(C).
    Finally, with regard to the applicable requirements for visibility 
protection, EPA recognizes that states are subject to visibility and 
regional haze program requirements under part C of the act. In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus we 
find that there are no applicable visibility requirements under section 
110(a)(2)(J) when a new NAAQS becomes effective. In conclusion, the 
South Dakota SIP meets the requirements of section 110(a)(2)(J) for the 
1997 ozone NAAQS.
    12. Air quality and modeling/data: Section 110(a)(2)(K) requires 
that each SIP provide for (i) the performance of such air quality 
modeling as the Administrator may prescribe for the purpose of 
predicting the effect on ambient air quality of any emissions of any 
air pollutant for which the Administrator has established a NAAQS, and 
(ii) the submission, upon request, of data related to such air quality 
modeling to the Administrator.
    a. South Dakota's response to this requirement: The rules in ARSD 
Chapter 74:36:04 (Operating permit for minor sources), 74:36:05 
(Operating permit for part 70 sources), 74:36:09 (Prevention of 
significant deterioration), and 74:36:10 (New source review) provide 
DENR with the authority to perform air quality modeling for predicting 
effects on air quality of emissions of any NAAQS pollutant and 
submission of such data to EPA upon request. Authority to promulgate 
these rules is contained in SDCL 34A-1-6 and 34A-1-9.
    b. EPA Analysis: South Dakota's SIP meets the requirements of CAA 
section 110(a)(2)(K) for the 1997 ozone NAAQS. In particular, South 
Dakota's PSD program incorporates by reference the federal program at 
40 CFR 52.21, including the provision at 40 CFR 52.21(l)(1) requiring 
that estimates of ambient air concentrations be based on applicable air 
quality models specified in Appendix W of 40 CFR part 51, and the 
provision at 40 CFR 52.21(l)(2) requiring that modification or 
substitution of a model specified in Appendix W must be approved by the 
Administrator. As a result, the SIP provides for such air quality 
modeling as the Administrator has prescribed.
    13. Permitting fees: Section 110(a)(2)(L) requires SIPs to require 
the owner or operator of each major stationary source to pay to the 
permitting authority, as a condition of any permit required under this 
act, a fee sufficient to cover (i) the reasonable costs of reviewing 
and acting upon any application for such a permit, and (ii) if the 
owner or operator receives a permit for such source, the reasonable 
costs of implementing and enforcing the terms and conditions of any 
such permit (not including any court costs or other costs associated 
with any enforcement action), until such fee requirement is superseded 
with respect to such sources by the Administrator's approval of a fee 
program under title V.
    a. South Dakota's response to this requirement: The DENR has an 
approved title V operating permit program (61 FR 2720, Jan. 29, 1996) 
that requires major stationary sources to pay permitting fees to cover 
the cost of reviewing, approving, implementing and enforcing the title 
V permit.
    b. EPA Analysis: South Dakota's approved title V operating permit 
program meets the requirements of CAA section 110(a)(2)(L) for the 1997 
ozone NAAQS. Final approval of the title V operating permit program 
became effective February 28, 1996. (See 61 FR 2720, Jan. 29, 1996.) As 
discussed in the notice proposing approval of the title V program (60 
FR 2917, Jan. 12, 1995), the State demonstrated that the fees collected 
were sufficient to administer the program.
    14. Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP.
    a. South Dakota's response to this requirement: SDCL 34A-1-1, 34A-
1-10 provides DENR with the authority to provide for consultation and 
participation in South Dakota's SIP development by local political 
subdivision affected by the SIP. Cooperation by DENR with other 
agencies provides for the consultation, advise, and cooperation with 
other state, local, industries, other states, interstate or inter local 
agencies, and the federal government, and with interested persons or 
groups on air pollution control issues.
    b. EPA Analysis: South Dakota's submittal meets the requirements of 
CAA section 110(a)(2)(M) for the 1997 ozone NAAQS.

V. What action is EPA taking?

    In this action, EPA is proposing to approve in full the following 
section 110(a)(2) infrastructure elements for South Dakota for the 1997 
ozone NAAQS: (A), (B), (D)(ii), (E), (F), (G), (H), (J), (K), (L), (M). 
EPA proposes to approve the section 110(a)(2)(C) infrastructure element 
in full in the event that South Dakota takes one of the actions 
described in the discussion of that element; in the alternative, EPA 
proposes to disapprove the section 110(a)(2)(C) element to the extent 
described and to otherwise approve this element. EPA is taking no 
action on infrastructure elements (D)(i) and (I) for the 1997 ozone 
NAAQS. EPA also proposes to approve the portion of South Dakota's June 
14, 2010 SIP submission that revises South Dakota's PSD program to 
incorporate by reference the federal program at 40 CFR 52.21 as of July 
1, 2009, except to the extent that revision applies PSD permitting to 
GHG emissions increases from GHG-emitting sources below the thresholds 
set out in the Tailoring Rule, 75 FR 31514.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves some state law as meeting Federal 
requirements and disapproves other state law because it does not meet 
Federal requirements; this proposed action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive

[[Page 27629]]

Order 13132 (64 FR 43255, August 10, 1999); is not an economically 
significant regulatory action based on health or safety risks subject 
to Executive Order 13045 (62 FR 19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and,
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: May 4, 2011.
Judith Wong,
Acting Regional Administrator, Region 8.
[FR Doc. 2011-11723 Filed 5-11-11; 8:45 am]
BILLING CODE 6560-50-P