[Federal Register Volume 79, Number 73 (Wednesday, April 16, 2014)]
[Proposed Rules]
[Pages 21424-21429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-08500]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2014-0241; FRL-9909-49-Region 8]


Partial Approval and Partial Disapproval and Promulgation of Air 
Quality Implementation Plans; South Dakota; Revisions to South Dakota 
Administrative Code; Permit: New and Modified Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
partially approve and partially disapprove State Implementation Plan 
(SIP) revisions submitted by the State of South Dakota on June 14, 
2010, June 20, 2011, and July 29, 2013. All three SIP revisions revise 
the Administrative Rules of South Dakota (ARSD) that pertain to the 
issuance of South Dakota air quality permits; in addition the June 14, 
2010 submittal revises certain definitions and dates of incorporation 
by reference. The June 14, 2010 revisions contain new, amended and 
renumbered rules; the June 20, 2011 revisions contain new rules, and 
the July 29, 2013 revisions contain amended rules. In this proposed 
rulemaking, we are taking action on the entire June 14, 2010 submittal, 
except for those portions of the submittal which do not belong in the 
SIP. We are also taking action on portions of the June 20, 2011 
submittal that were not acted on in other rulemaking regarding 
greenhouse gases and the State's Prevention of Significant 
Deterioration (PSD) program. We are taking action on portions of the 
July 29, 2013 submittal that supersede portions of the two previous 
submittals; the remainder of the July 29, 2013 submittal will be acted 
on at a later date. This action is being taken under section 110 of the 
Clean Air Act (CAA).

DATES: Comments must be received on or before May 16, 2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2014-0241, by one of the following methods:
     www.regulations.gov. Follow the on-line instructions for 
submitting comments.
     Email: [email protected]
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Carl Daly, Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.
     Hand Delivery: Carl Daly, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only 
accepted Monday through Friday, 8:00 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-
2014-0241. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or email. The 
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 email comment 
directly to EPA, without going through www.regulations.gov, your email 
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 
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

[[Page 21425]]

available only in hard copy. Publicly-available docket materials are 
available either electronically in 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, 8:00 a.m. 
to 4:00 p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, Mailcode 8P-
AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6227, or [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. General Information
II. Background
III. What action is EPA taking?
IV. What authorities apply to EPA's proposed action?
V. Summary
VI. Statutory and Executive Orders Review

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 initials ARSD mean or refer to the Administrative Rules of 
South Dakota.
    (iii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iv) The initials NAAQS mean or refer to National Ambient Air 
Quality Standard.
    (v) The initials NESHAP mean or refer to National Emission 
Standards for Hazardous Air Pollutant.
    (vi) The initials NSPS mean or refer to New Source Performance 
Standard.
    (vii) The initials NSR mean or refer to New Source Review.
    (viii) The initials PSD mean or refer to prevention of significant 
deterioration.
    (ix) The initials SIP mean or refer to State Implementation Plan.
    (x) The words State or South Dakota mean the State of South Dakota, 
unless the context indicates otherwise.

 I. General Information

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

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in 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:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. Background

    South Dakota's June 14, 2010, submittal consists of four groups of 
rule changes: (1) Revisions to the definitions associated with the Air 
Pollution Control Program to ensure the definitions are current and 
consistent with other chapters in the regulations. These revisions 
include: grammatical changes, renumbering, modified definitions, new 
definitions and deleted definitions; (2) Revisions to the date of 
federal regulations referenced throughout ARSD Article 74:36; (3) 
Addition of a construction permit program for new minor sources and 
minor modifications to existing sources, created by adding new Chapter 
74:36:20 (Construction Permits for New Sources or Modifications); and 
(4) Revisions to the minor source operating permit programs to 
incorporate the changes associated with the new proposed construction 
permit program.\1\
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    \1\ Under a proposed consent decree, by May 30, 2014, EPA is 
required to sign a notice of final action to approve, disapprove, 
approve in part and disapprove in part, or conditionally approve 
this June 14, 2010 SIP submittal. WildEarth Guardians v. EPA, Civil 
Action No. 1:12-cv-03307 (D. Colo.).
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    In South Dakota's current regulations in ARSD Article 74:36, the 
minor source construction permit and operating permit programs are 
combined so, in practice, a source receives one permit from the State 
which serves as both a construction and operating permit.\2\ The 
revisions in the June 14, 2010 submittal separate the two programs into 
a new minor source construction permit program and a minor source 
operating permit program. Under the new revisions, a source would first 
apply for a construction permit before applying for an operating 
permit. A cross-walk table, which discusses the rule revisions in 
Article 74:36 individually, and the action we are proposing, is 
included in the docket for this rulemaking.
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    \2\ For major sources and major modifications, the State already 
has two SIP-approved construction permit programs (PSD and 
nonattainment NSR) and, separately for major sources, a title V 
operating permit program that has been approved through the title V 
(not the SIP) process.
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    South Dakota's June 14, 2010, submittal also contains rule 
revisions that are generally not included in SIPs. These rules, which 
we are not taking action on here (i.e. New Source Performance Standards 
(NSPS), operating permits for part 70 sources, etc.), are outlined in 
the cross-walk table located in the docket for this rulemaking.
    South Dakota's June 20, 2011, submittal includes the following rule 
revisions: (1) Revises Sections 74:36:01:01, 74:36:01:08, 74:36:01:15 
and 74:36:09:02 to comply with EPA's Greenhouse Gas Tailoring Rule. 
Revisions to Sections 74:36:01:08, 74:36:01:15 and 74:36:09:02 have 
been proposed; \3\ EPA is proposing action on 74:36:01:01 in this 
rulemaking; (2) Revises Chapter 74:36:20 by revising Section 
74:36:20:02 (Construction Permits Required); and (3) Adds new Section 
74:36:20:02.01 (Initiating Construction Prior to Permit Issuance). 
Section 74:36:20:02.01 allows sources who meet certain conditions to 
start construction prior to receiving a permit provided they meet the 
requirements in that section. EPA is proposing action on

[[Page 21426]]

74:36:20:02 and 74:36:20:02.01 in this rulemaking.\4\
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    \3\ On February 11, 2014 (79 FR 8130) EPA proposed action on 
these provisions. EPA signed a final action on March 24, 2014.
    \4\ Under a proposed consent decree, by May 30, 2014, EPA is 
required to sign a notice of final action to approve, disapprove, 
approve in part and disapprove in part, or conditionally approve 
this June 20, 2011 SIP submittal. WildEarth Guardians v. EPA, Civil 
Action No. 1:12-cv-03307 (D. Colo.).
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    With respect to South Dakota's July 29, 2013 submittal, we are only 
proposing action on the following revisions: (1) Section 74:36:04:03.01 
(Minor Source Operating Permit Variance); and (2) 74:36:10 (New Source 
Review).

III. What action is EPA taking?

    EPA is proposing to approve all revisions as submitted by South 
Dakota on June 14, 2010, except we are not acting on those portions of 
the submittal which do not belong in the SIP. EPA is proposing to 
partially approve and partially disapprove the revisions submitted on 
June 20, 2011. We are also proposing to approve portions of South 
Dakota's July 29, 2013, submittal as outlined in Section II of this 
rulemaking.

June 14, 2010 SIP Submittal

74:36:01:01 (Definitions)
    We are proposing to approve all changes in this section as outlined 
in the crosswalk table (see docket).
74:36:01:02 (Ambient Air Quality)
    We are proposing to approve changes in this section, which updates 
the federal reference.
74:36:01:03 (Air Quality Episodes)
    We are proposing to approve changes in this section, which updates 
the federal reference.
74:36:04 (Operating Permits for Minor Sources)
    We are proposing to approve all changes in this section. The 
modifications in this section were made to revise the minor source 
operating permit program to incorporate the changes associated with the 
new proposed construction permit program. As outlined in the crosswalk 
table, these changes include: (1) Grammatical changes which do not 
significantly change the meaning of the rule; (2) Updates to the 
federal references; and (3) re-organization of the rules. A few 
specific issues of note are discussed below:
74:36:04:03 (Emission Unit Exemptions)
    In 74:36:04:03(6), South Dakota added an emission unit exemption 
for ``routine housekeeping or plant upkeep activities such as painting 
buildings, retarring roofs or paving parking lots.'' EPA asked South 
Dakota to clarify that they consider these activities to be de minimis 
in nature. South Dakota sent a letter to EPA dated March 18, 2014, 
clarifying that they consider these activities to be de minimis in 
nature (see docket). As explained in the letter, before South Dakota 
adopted the requirements for an air quality construction permit 
program, the construction and operating permit programs were combined 
for those facilities not required to obtain a PSD preconstruction 
permit. When South Dakota decided to separate the two programs, the 
insignificant activity list was incorporated into both programs. 
Routine housekeeping and plant upkeep had not originally been listed in 
the combined construction and operating permit program for minor 
sources because these activities were considered fugitive sources which 
are not regulated under the minor source program. We interpret the 
State's listing of these activities as insignificant to characterize 
these emissions as de minimis with respect to attainment or maintenance 
of the National Ambient Air Quality Standards (NAAQS) and thus 
appropriate for permitting exemptions. Thus, when the State decided to 
separate the construction and operating permit program, it was decided 
to include exemptions for routine housekeeping and plant upkeep in the 
minor operating permit program as well as for the new construction 
permit program. In particular the example activities of painting 
buildings, retarring roofs, or paving parking lots appear to be de 
minimis. Based on the State's letter, EPA proposes to approve this 
exemption.
74:36:04:03.01 (Minor Source Operating Permit Variance)
    This rule was superseded by the subsequent July 29, 2013, submittal 
and we are proposing action on the rule elsewhere in this notice.
74:36:04:32 (General Permits)
    In 74:36:04:32, EPA asked the State to clarify how they can ensure 
that the issuance of a general permit does not interfere with the NAAQS 
or any other requirements of the CAA. South Dakota sent a letter to EPA 
clarifying how their regulations ensure that construction of a source 
which applied for a general permit will not interfere with the NAAQS or 
any other requirement of the CAA (see docket). When issuing a general 
permit, the State applies the standard in 74:36:04:04 to determine that 
the permit will not interfere with the NAAQS. The permits are issued 
for a five-year period. Before renewing a general permit, the State 
considers whether renewal will interfere with the NAAQS or other 
applicable requirements. Based on this clarification, EPA proposes to 
approve South Dakota's general permit provisions. In particular, EPA 
notes that the limited lifespan of a general permit helps to protect 
the NAAQS from unanticipated growth in a source category.
74:36:05 (Operating Permits for Part 70 Sources)
    We are not taking action on this section because part 70 provisions 
are not a required component under section 110 of the CAA. Instead, we 
approve operating permit regulations under our operating permit 
regulations at 40 CFR part 70.
74:36:07 (New Source Performance Standards)
    We are not taking action on this section because NSPS are not a 
required component under section 110 of the CAA.
74:36:08 (National Emission Standards for Hazardous Air Pollutants)
    We are not taking action on this section because National Emission 
Standards for Hazardous Air Pollutants (NESHAPs) are not a required 
component under section 110 of the CAA.
74:36:09 (Prevention of Significant Deterioration)
    The proposed changes were acted on in 76 FR 43912 (July 22, 2011).
74:36:10 (New Source Review)
    The proposed changes are superseded by the July 29, 2013 submittal. 
We are acting on the proposed changes to 74:36:10 as submitted on July 
29, 2013.
74:36:11 (Performance Testing)
    We are proposing to approve changes in this section, which updates 
the federal reference.
74:36:12 (Control of Visible Emissions)
    We are proposing to approve changes in this section, which updates 
the federal reference.
74:36:13 (Continuous Emissions Monitoring)
    We are proposing to approve changes in this section, which updates 
the federal reference.
74:36:16 (Acid Rain Program)
    We are not taking action on this section because the Acid Rain 
Program

[[Page 21427]]

is not a required component under section 110 of the CAA.
74:36:18 (Regulations for State Facilities in the Rapid City Area)
    We are proposing to approve changes in this section, which updates 
the visible emission test method to EPA Method 9 in 40 CFR part 60, 
Appendix A (July 1, 2009).
74:36:19 (Mercury Budget Trading Program)
    We are not taking action on this section because it is not a 
required SIP component under section 110 of the CAA.
74:36:20 (Construction Permits for New Sources or Modifications)
    We are proposing to approve this new section because it meets the 
requirements of the CAA and 40 CFR 51.160 and 161. In particular:
    (1) 74:36:20:02 (Construction Permit Required) requires a 
construction permit before a source can construct, install, modify or 
operate a source or unit. Note that, as discussed separately below, 
this requirement was modified in the June 20, 2011 SIP submittal.
    (2) 74:36:20:05 (Standard for issuance of construction permit) 
states that a construction permit will be issued only if it has been 
shown that the operation of the new source or modification to an 
existing source will not prevent or interfere with the attainment or 
maintenance of an applicable NAAQS.
    (3) 74:36:20:06 (Timely and complete application for a construction 
permit required) allows the State or local agency to determine whether 
or not the construction or modification of a facility will interfere 
with the NAAQS or control strategy.
    (4) 74:36:20:10 (Time period for department's recommendation) 
allows the State or local agency to prevent the construction or 
modification of a facility if it will interfere with the NAAQS or 
control strategy.
    (5) 74:36:20:11 (Public participation in permitting process) allows 
for a 30-day period for submittal of public comment.

June 20, 2011 SIP Submittal

74:36:01:01(73) (Subject to Regulation)
    We are proposing to approve the definition of ``Subject to 
Regulation'' to comply with EPA's Greenhouse Gas Tailoring Rule 
revisions published on June 3, 2010.
    In our February 11, 2014 action (79 FR 8130), EPA proposed approval 
of revisions to the State's PSD program to incorporate the provisions 
of the federal PSD and Title V Greenhouse Gas Tailoring Rule (Tailoring 
Rule). The SIP revisions incorporate by reference the federal Tailoring 
Rule's emission thresholds for determining which new stationary sources 
and modifications to existing stationary sources become subject to 
South Dakota's PSD permitting requirements for their greenhouse gas 
emissions.
    Outside of the PSD program, the June 20, 2011 SIP submittal 
proposed in Section 74:36:01:01, Definitions, to add ``(73) ``Subject 
to regulation'' as defined in 40 CFR 70.2 (July 1, 2009), as revised in 
publication 75 FR 31607 (June 3, 2010), in accordance with EPA 
requirements.'' We did not propose action on that part of the submittal 
as part of our February 11, 2014 proposal because it applies to the 
title V operating permit program, which is not part of the SIP. 
However, in reviewing the June 20, 2011 submittal for this proposed 
action, we realized that South Dakota intended for the definition of 
``subject to regulation'' to be applied throughout its rules. In fact, 
the language ``subject to regulation'' is included in the updated 
definition of major sources that we proposed to approve in our February 
11, 2014 action, so for consistency we propose to approve the 
definition at this time.
74:36:04:20:01 (Initiating Construction Prior to Permit Issuance)
    Does the new rule that allows for Initiating Construction Prior to 
Permit Issuance meet the CAA and regulatory requirements?
    The new South Dakota rule 74:36:20:02.01 ``Initiating Construction 
Prior to Permit Issuance'' allows certain projects to begin 
construction prior to receiving approval from the State, and contains 
some safeguards. Under new rule 74:36:20:02.01 an owner or operator may 
initiate construction without receiving a permit from the State as long 
as they have submitted a construction permit application and notified 
the Department of ``its intentions to initiate construction prior to 
issuance of the construction permit five working days before initiating 
construction.'' 74:36:20:2.01 (1)-(2). Only ``true minor'' sources and 
modifications can construct prior to receiving a permit. 74:36:20:2.01 
(3)-(4). The source is not allowed to operate equipment ``in any way 
that may emit any air pollutant prior to receiving a construction 
permit.'' 74:36:20:2.01(5). The rule provides that the owner or 
operator must assume liability for construction conducted before the 
permit is issued, and must cease construction if the department 
demonstrates that construction of the new source or modification will 
interfere with the attainment or maintenance of a NAAQS or increment. 
74:36:20:2.01 (5)-(6). Finally, the owner or operator is required to 
make any change to the source that may be imposed in the issued 
construction permit. 74:36:20:2.01(7).
    We are proposing to disapprove this section in its entirety because 
it allows complete construction of a true minor source before any type 
of State review, which is inconsistent with the requirements in 40 CFR 
51.160(a) and (b) and Section 110(a)(2)(C) of the Act; because it would 
also create ``equity in the ground'' issues that might compromise 
compliance with 40 CFR 51.160(a) and (b); and because it is 
inconsistent with the public comment requirements in 40 CFR 51.161.
Summary of the Federal Clean Air Act and Regulatory Requirements
    Section 110(a)(2)(C) of the Act contains the requirements for 
preconstruction review programs for minor sources and requires that 
each SIP include a program to regulate the construction and 
modification of stationary sources as necessary to assure that the 
NAAQS are achieved.
    EPA's minor source implementing regulations are in 40 CFR 51.160-
51.164. The regulations require that a SIP include ``legally 
enforceable procedures that enable'' the permitting agency to determine 
whether construction ``will result in'' interference with the NAAQS, 40 
CFR 51.160(a). The SIP must also include the means by which a state or 
local agency can ``prevent'' construction that ``will interfere with 
the attainment or maintenance of a national standard.'' 40 CFR 
51.160(b). 40 CFR 51.161(a) requires that the legally enforceable 
procedures in 40 CFR 51.160 must also require the state or local agency 
to provide opportunity for public comment on information submitted by 
owners or operators. The public information must include the agency's 
analysis of the effect of construction or modification on ambient air 
quality, including the agency's proposed approval or disapproval. 40 
CFR 51.161(b) requires a minimum 30-day public comment period.

What Is EPA's evaluation?

    We propose to find that the State's new rule that allows 
construction of certain projects subject to the minor source program 
prior to permit issuance is inconsistent with the requirements of the 
CAA and implementing regulations. EPA expressed concern about the 
State's proposed approach in our comments on

[[Page 21428]]

South Dakota's proposed rule in January 2011 because as proposed the 
rules were inconsistent with 40 CFR 51.160(b), explaining that \5\:
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    \5\ The State also received public comments from 13 individuals 
on this issue and related concerns. State of South Dakota SIP 
Submittal, these comments appear in the SIP starting at PDF page 80. 
(June 14, 2011, part 2 of 2).

``EPA has concerns that chapter 74:36:20:02.01 does not require some 
type of administrative approval from the State prior to allowing 
pre-permit construction activities. EPA has approved minor NSR 
programs in several states that do not require permits prior to 
construction, but instead require sources to submit a notice and 
receive authorization for sources to begin construction after a 
specified time if the permitting authority does not issue an order 
preventing construction. Chapter 74:36:20:02.01 only requires the 
owner or operator to submit a construction permit application; the 
rule references a department evaluation, but does not require 
written approval from the State prior to construction ensuring that 
sources that are subject to federal requirements do not commence 
construction prior to permit issuance. This is not consistent with 
40 CFR 51.160(b), which requires states to have legally enforceable 
procedures to prevent construction or modification of a source, if 
it would violate any SIP control strategies or interfere with 
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attainment or maintenance of the NAAQS.''

The final rule as adopted by the State was not revised to address these 
concerns and allows complete construction of a true minor source before 
any type of State review. The rule does not require the permitting 
authority to take affirmative action and approve construction before 
construction permit approval. Therefore, neither the State, public, nor 
EPA can determine whether the project will be in compliance with the 
CAA and implementing regulations before construction.
    In addition to being inconsistent with the requirements of 40 CFR 
51.160(a), the rule is inconsistent with Section 110(a)(2)(C) of the 
Act because the rule lacks provisions to protect the NAAQS and prohibit 
any source from emitting air pollutants which will interfere with the 
NAAQS. Notwithstanding the fact that the owner or operator is required 
to provide a five day notice to the State before commencing 
construction, there is no procedure in the State's rule to determine 
prior to construction, if the construction or modification will violate 
a control strategy or interfere with attainment and maintenance of the 
NAAQS, which is required under 40 CFR 51.160(a).
    The State rule also does not satisfy the public participation 
requirements in 40 CFR 51.161, which require a minimum 30-day period 
for public comment on the information submitted by the owner or 
operator prior to construction, as well as an opportunity for the 
public to review the State's analysis and recommendations regarding 
construction approval or disapproval.
    74:36:20:02.01 also allows for complete construction of a true 
minor source, which would create equity in the ground issues. Allowing 
for complete construction could compromise compliance with 40 CFR 
51.160(a) and (b) because, although 74:36:20:02.01 requires that the 
owner or operator must assume any liability for construction conducted 
on a source before a permit is issued, the economic impact of denying a 
permit after complete construction of a source could influence the 
decision to approve or deny a permit. Additionally, once fully 
constructed, there may be fundamental design issues that cannot be 
overcome should the State seek required modifications from the owner or 
operator.
    EPA's review of other states, which have EPA approved pre-permit 
construction regulations found that most of the other state SIPs 
require some type of permitting agency review and preauthorization/
administrative approval prior to construction.
    We understand South Dakota's goals in promulgating rule 
74:36:20:02.01, as expressed during the State's rulemaking, were to 
``expedite the construction of specific facilities that will have 
minimal impact to the ambient air and for those projects that may be 
impacted by inclement weather (i.e. winter months),'' \6\ ``and to 
ensure that new businesses and existing businesses looking to expand 
are permitted in an expedited manner.'' \7\ If requested by South 
Dakota, EPA will work with the State to develop revised rules that are 
consistent with the State goals and also consistent with the CAA and 
implementing regulations.\8\ We acknowledge that EPA may have approved 
some state minor source programs with approaches/requirements similar 
to those proposed by South Dakota, which may warrant EPA evaluation in 
the future.
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    \6\ State of South Dakota SIP Submittal, at PDF pages 170-171 
(June 14, 2011, part 1 of 2).
    \7\ State of South Dakota SIP Submittal, at PDF page 105 (June 
14, 2011, part 2 of 2) (Board of Minerals and Environment Minutes, 
February 17, 2011).
    \8\ One option for South Dakota, which is consistent with its 
stated goals, is to amend its pre-permit construction regulations to 
allow certain limited, seasonal, pre-permit construction activities 
and specify which activities are allowed, and exclude construction 
of any emitting unit. An example of this type of pre-permit 
construction language can be found in the Administrative Rules of 
Montana (ARM) 17.8.743(2), which EPA approved on August 8, 2011 (76 
FR 40237).
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    In conclusion, although 74:36:20:02.01 has some safeguards as noted 
above, it is not in compliance with Section 110(a)(2)(C) of the Act, 40 
CFR 51.160(a) and (b), and 40 CFR 51.161. Therefore, for the reasons 
outlined above, we are proposing to disapprove 74:36:20:02.01.
74:36:04:20:02 (Construction Permit Required)
    Because EPA is disapproving 74:36:20:02.01, we are also 
disapproving the phrase: ``unless it meets the requirements in 
74:36:20:02.01'' in 74:36:04:20:02.

July 29, 2013 SIP Submittal

74:36:04:03.01 (Minor Source Operating Permit Variance)
    We are proposing to approve the deletion of this section.
74:36:10 (New Source Review)
    We are proposing to approve changes in this section, which updates 
the federal references and deletes obsolete provisions regarding clean 
units and pollution control projects. We note that the State clarified 
that it is not adopting any provisions in 40 CFR 51.165 that were 
marked as stayed as of the date of incorporation by reference. We also 
note that, as mentioned in the State's letter, that there are currently 
not any nonattainment areas designated in South Dakota. If in the 
future any are designated for a particular pollutant, the State will 
then be obliged to review and if necessary revise its nonattainment NSR 
program to meet all applicable requirements for that pollutant, 
including proper treatment of relevant precursors.

IV. What authorities apply to EPA's proposed action?

    In determining whether SIP revisions submitted by the State of 
South Dakota on June 14, 2010, June 20, 2011 and July 29, 2013, are 
approvable or not approvable, EPA applied the following authorities:
    The CAA at Section 110(a)(2)(C) requires states to include a minor 
NSR program or alternative measures in their SIP to regulate 
modifications and new construction of stationary sources within the 
area as necessary to assure the NAAQS are achieved. In particular, 
section 110(a)(2)(C) was applied to determine approvability of all 
three submittals we are proposing action on in this rulemaking.
    EPA's implementing regulations at 40 CFR 51.160-164 are intended to 
ensure that new source growth is consistent

[[Page 21429]]

with maintenance of the NAAQS. The authorities in EPA's implementing 
regulations which we are applying in this rulemaking are: (1) 40 CFR 
51.160(a), which requires that the SIP include legally enforceable 
procedures that enable a state or local agency to determine whether 
construction or modification of a facility, building, structure or 
installation, or combination of these will result in a violation of 
applicable portions of the control strategy or interference with 
attainment or maintenance of a national standard in the state in which 
the proposed source (or modification) is located or in a neighboring 
state; (2) 40 CFR 51.160(b) requires these procedures must include a 
means by which the state or local agency can prevent a construction or 
modification if the construction or modification will result in a 
violation of applicable portions of the control strategy or 
interference with attainment or maintenance of a national standard. 40 
CFR 51.162-164 are not applicable to the SIP revisions we are proposing 
action on in this rulemaking. We applied 40 CFR 51.160(a), 40 CFR 
51.160(b) and 40 CFR 51.161 to determine the approvability of 
74:36:04:20:02.
    Section 110(i) of the CAA specifically precludes states from 
changing the requirements of the SIP except through SIP revisions 
approved by EPA. SIP revisions will be approved by EPA only if they 
meet all requirements of section 110 of the CAA and the implementing 
regulations at 40 CFR part 51. See CAA section 110(l); and 40 CFR 
51.104.

V. Summary

    In this proposed rulemaking, we are proposing partial approval and 
partial disapproval of the new and revised rules and renumbering of 
rules as outlined in section III above and in the crosswalk table 
located in the docket. In particular, we are proposing the following 
actions:

June 14, 2010 Submittal

    We are proposing to approve the following: 74:36:01:01 
(Definitions); 74:36:01:02 (Ambient Air Quality); 74:36:01:03 (Air 
Quality Episodes); 74:36:04 (Operating Permits for Minor Sources); 
74:36:11 (Performance Testing); 74:36:12 (Control of Visible 
Emissions); 74:36:13 (Continuous Emissions Monitoring); 74:36:18 
(Regulations for State Facilities in the Rapid City Area); and 74:36:20 
(Construction Permits for New Sources or Modifications).
    We are not taking action on the following: 74:36:05 (Operating 
Permits for Part 70 Sources); 74:36:07 (New Source Performance 
Standards); 74:36:08 (National Emission Standards for Hazardous Air 
Pollutants); 74:36:09 (Prevention of Significant Deterioration); 
74:36:16 (Acid Rain Program); and 74:36:19 (Mercury Budget Trading 
Program).

June 20, 2011 Submittal

    We are proposing to approve the following: 74:36:01:01(73) (Subject 
to Regulation).
    We are proposing to disapprove the following: 74:36:04:20:01 
(Initiating Construction Prior to Permit Issuance), the phrase: 
``unless it meets the requirements in 74:36:20:02.01'' in 
74:36:04:20:02 (Construction Permit Required).

July 29, 2013 Submittal

    We are proposing to approve deletion of the following: 
74:36:04:03.01 (Minor Source Operating Permit Variance).
    We are proposing to approve the following: 74:36:10 (New Source 
Review).
    We are proposing partial approval and partial disapproval based on 
the authorities as outlined in section IV of this rulemaking. As 
explained in this rulemaking, the South Dakota rules we are proposing 
to approve meet the statutory requirements of CAA section 110(a)(2)(C), 
the regulatory requirements of 40 CFR 51.160 and 40 CFR 51.161. We are 
proposing to disapprove the revisions which do not meet the statutory 
requirements of CAA section 110(a)(2)(C) and the regulatory 
requirements of 40 CFR 51.160 and 40 CFR 51.161. For additional 
information, see the cross-walk table and South Dakota's letter of 
clarification located in the docket.

VI. Statutory and Executive Orders Review

    Under the Clean Air Act, 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 Clean Air Act. 
Accordingly, this proposed action merely approves state law as meeting 
federal requirements and does not impose additional requirements beyond 
those imposed by state law. For that reason, this 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 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 Clean Air Act; 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: April 3, 2014.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2014-08500 Filed 4-15-14; 8:45 am]
BILLING CODE 6560-50-P