[Federal Register Volume 82, Number 107 (Tuesday, June 6, 2017)]
[Proposed Rules]
[Pages 26007-26016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11573]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2016-0709; FRL-9963-27-Region 8]


Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 2010 SO2 and 2012 PM2.5 National 
Ambient Air Quality Standards; South Dakota

AGENCY: Environmental Protection Agency.

[[Page 26008]]


ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of State Implementation Plan (SIP) revisions from the 
State of South Dakota to demonstrate the State meets infrastructure 
requirements of the Clean Air Act (Act, CAA) for the National Ambient 
Air Quality Standards (NAAQS) promulgated for sulfur dioxide 
(SO2) on June 2, 2010, and fine particulate matter 
(PM2.5) on December 14, 2012. Section 110(a) of the CAA 
requires that each state submit a SIP for the implementation, 
maintenance, and enforcement of each NAAQS promulgated by the EPA.

DATES: Written comments must be received on or before July 6, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2016-0709 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from www.regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129, 303-312-6563, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

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

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to the EPA through http://www.regulations.gov or email. 
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 the 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 volume, 
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.

II. Background

    On June 2, 2010, the EPA promulgated a revised primary 
SO2 standard of 75 ppb, based on a three-year average of the 
annual 99th percentile of one-hour daily maximum concentrations (75 FR 
35520, June 22, 2010). On December 14, 2012, the EPA promulgated a 
revised annual PM2.5 standard by lowering the level to 12.0 
[mu]g/m\3\ and retaining the 24-hour PM2.5 standard at a 
level of 35 [mu]g/m\3\ (78 FR 3086, Jan. 15, 2013).
    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure their SIPs provide for 
implementation, maintenance, and enforcement of the NAAQS. These 
submissions must contain any revisions needed for meeting the 
applicable SIP requirements of section 110(a)(2), or certifications 
that their existing SIPs for SO2 and PM2.5 
already meet those requirements. The EPA highlighted this statutory 
requirement in an October 2, 2007, guidance document entitled 
``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'' (2007 Memo). On September 25, 2009, the EPA issued 
an additional guidance document pertaining to the 2006 PM2.5 
NAAQS entitled ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) 
National Ambient Air Quality Standards (NAAQS)'' (2009 Memo), followed 
by the October 14, 2011, ``Guidance on Infrastructure SIP Elements 
Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) 
National Ambient Air Quality Standards (NAAQS)'' (2011 Memo). Most 
recently, the EPA issued ``Guidance on Infrastructure State 
Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and (2)'' on September 13, 2013 (2013 Memo).

III. What is the scope of this rulemaking?

    The EPA is acting upon the SIP submissions from South Dakota that 
address the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2010 SO2 and 2012 PM2.5 NAAQS. 
The requirement for states to make a SIP submission of this type arises 
out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states 
must make SIP submissions ``within three years (or such shorter period 
as the Administrator may prescribe) after the promulgation of a 
national primary ambient air quality standard (or any revision 
thereof),'' and these SIP submissions are to provide for the 
``implementation, maintenance, and enforcement'' of such NAAQS. The 
statute directly imposes on states the duty to make these SIP 
submissions, and the requirement to make the submissions is not 
conditioned upon the EPA taking any action other than promulgating a 
new or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    The EPA has historically referred to these SIP submissions made for 
the purpose of satisfying the requirements of CAA sections 110(a)(1) 
and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, the EPA uses the 
term to distinguish this particular type of SIP submission from 
submissions that are intended to satisfy other SIP requirements under 
the CAA, such as ``nonattainment SIP'' or

[[Page 26009]]

``attainment plan SIP'' submissions to address the nonattainment 
planning requirements of part D of title I of the CAA; ``regional haze 
SIP'' submissions required by the EPA rule to address the visibility 
protection requirements of CAA section 169A; and nonattainment new 
source review (NSR) permit program submissions to address the permit 
requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\1\ The EPA therefore 
believes that while the timing requirement in section 110(a)(1) is 
unambiguous, some of the other statutory provisions are ambiguous. In 
particular, the EPA believes that the list of required elements for 
infrastructure SIP submissions provided in section 110(a)(2) contains 
ambiguities concerning what is required for inclusion in an 
infrastructure SIP submission.
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    \1\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    Examples of some of these ambiguities and the context in which the 
EPA interprets the ambiguous portions of section 110(a)(1) and 
110(a)(2) are discussed at length in our notice of proposed rulemaking: 
Promulgation of State Implementation Plan Revisions; Infrastructure 
Requirements for the 1997 and 2006 PM2.5, 2008 Lead, 2008 
Ozone, and 2010 NO2 National Ambient Air Quality Standards; 
South Dakota (79 FR 71040, Dec. 1, 2014) under ``III. What is the Scope 
of this Rulemaking?''
    With respect to certain other issues, the EPA does not believe that 
an action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction (SSM) that may be contrary to the CAA and the 
EPA's policies addressing such excess emissions; (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by the EPA; and (iii) 
existing provisions for Prevention of Significant Deterioration (PSD) 
programs that may be inconsistent with current requirements of the 
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, Dec. 31, 2002, as 
amended by 72 FR 32526, June 13, 2007 (``NSR Reform'').

IV. What infrastructure elements are required under sections 110(a)(1) 
and (2)?

    CAA 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): Interstate transport.
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies.
     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 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: (1) Section 
110(a)(2)(C) to the extent it refers to permit programs (known as 
``nonattainment NSR'') required under part D, and (2) 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). Furthermore, the EPA 
interprets the CAA section 110(a)(2)(J) provision on visibility as not 
being triggered by a new NAAQS because the visibility requirements in 
part C, title 1 of the CAA are not changed by a new NAAQS.

V. How did south dakota address the infrastructure elements of sections 
110(a)(1) and (2)?

    The South Dakota Department of Environment and Natural Resources 
(DENR) submitted certifications of South Dakota's infrastructure SIP 
for the 2010 SO2 NAAQS on December 20, 2013 and the 2012 
PM2.5 NAAQS on January 25, 2016. South Dakota's 
infrastructure certifications demonstrate how the State, where 
applicable, has plans in place that meet the requirements of section 
110 for the 2010 SO2 and 2012 PM2.5 NAAQS. 
Infrastructure SIPs were taken out for public notice and South Dakota 
provided an opportunity for public hearing, as indicated in the cover 
letter of each certification (available within this docket). These 
plans reference the current Administrative Rules of South Dakota (ARSD) 
and South Dakota Codified Laws (SDCL). These submittals are available 
within the electronic docket for today's proposed action at 
www.regulations.gov. The ARSD and SDCL referenced in the submittals are 
publicly available at http://legis.sd.gov/rules/RulesList.aspx and 
http://legis.sd.gov/Statutes/Codified_Laws/default.aspx. South Dakota's 
SIP, air pollution control regulations and statutes that have been 
previously approved by the EPA and incorporated into the South Dakota 
SIP can be found at 40 CFR 52.2170.

VI. Analysis of the State Submittals

    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

[[Page 26010]]

and timetables for compliance, as may be necessary or appropriate, to 
meet the applicable requirements of this Act.
    Multiple SIP-approved state air quality regulations within the ARSD 
and cited in South Dakota's certifications provide enforceable emission 
limitations and other control measures, means of techniques, schedules 
for compliance, and other related matters necessary to meet the 
requirements of the CAA section 110(a)(2)(A) for the 2010 
SO2 and 2012 PM2.5 NAAQS, subject to the 
following clarifications.
    First, the EPA does not consider SIP requirements triggered by the 
nonattainment area mandates in part D of Title I of the CAA to be 
governed by the submission deadline of section 110(a)(1). Furthermore, 
South Dakota has no areas designated as nonattainment for the 2010 
SO2 or 2012 PM2.5 NAAQS. South Dakota's 
certifications (contained within this docket) generally listed 
provisions within its SIP which regulate pollutants through various 
programs, including major and minor source permit programs. This 
suffices, in the case of South Dakota, to meet the requirements of 
section 110(a)(2)(A) for the 2010 SO2 and 2012 
PM2.5 NAAQS.
    Second, as previously discussed, the 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, the 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.
    Third and finally, in this action, the EPA is also not proposing to 
approve or disapprove any existing state provision with regard to 
excess emissions during SSM or operations at a facility. A number of 
states have SSM provisions which are contrary to the CAA and existing 
EPA guidance\2\ and the agency is addressing such state regulations 
separately (80 FR 33840, June 12, 2015).
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    \2\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, Memorandum to the EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Emissions 
During Malfunctions, Startup, and Shutdown.'' (Sept. 20, 1999).
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    Therefore, the EPA is proposing to approve South Dakota's 
infrastructure SIP for the 2010 SO2, and 2012 
PM2.5 NAAQS with respect to the general requirement in 
section 110(a)(2)(A) to include enforceable emission limitations and 
other control measures, means, or techniques to meet the applicable 
requirements of this element.
    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.''
    Under ARSD 74:36:02, the DENR operates a network of air monitoring 
sites. The EPA approved South Dakota's 2016 network changes through an 
Ambient Air Monitoring Plan response letter (contained within the 
docket) mailed to the DENR on November 1, 2016. The State of South 
Dakota submits data to the EPA's Air Quality System database in 
accordance with the deadlines in 40 CFR 58.16. South Dakota's air 
monitoring programs and data systems meet the requirements of CAA 
section 110(a)(2)(B) for the 2010 SO2 and 2012 
PM2.5 NAAQS.
    We find that South Dakota's SIP and practices are adequate for the 
ambient air quality monitoring and data system requirements for the 
2010 SO2 and 2012 PM2.5 NAAQS; and therefore, 
propose to approve the infrastructure SIP for the 2010 SO2 
and 2012 PM2.5 NAAQS for this element.
    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 
NAAQS are achieved, including a permit program as required in parts C 
and D.''
    To generally meet the requirements of section 110(a)(2)(C), the 
State is required to have SIP-approved PSD, nonattainment NSR, and 
minor NSR permitting programs adequate to implement the 2010 
SO2 and 2012 PM2.5 NAAQS. As explained elsewhere 
in this action, the EPA is not evaluating nonattainment related 
provisions, such as the nonattainment NSR program required by part D of 
the Act. The 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).

Enforcement of Control Measures Requirement

    The State's submissions cite SIP approved ARSD Chapter 74:36:09 
(Prevention of significant deterioration) and ARSD Chapter 74:36:20 
(Construction permits for new sources and modifications) which provide 
for the enforcement of emission limits and control measures. SDCL 34A-
1-39 through 34A-1-54 and 34A-1-62 gives the DENR authority to provide 
enforcement of South Dakota's measure and regulations that require new 
sources or modifications to existing sources to apply for and obtain an 
air quality permit before constructing.

PSD Requirements

    With respect to elements (C) and (J), the EPA interprets the CAA to 
require each state to make an infrastructure SIP submission for a new 
or revised NAAQS that demonstrates that the air agency has a complete 
PSD permitting program meeting the current requirements for all 
regulated NSR pollutants. The requirements of element (D)(i)(II) prong 
3 (PSD) may also be satisfied by demonstrating the air agency has a 
complete PSD permitting program correctly addressing all regulated NSR 
pollutants. South Dakota has shown that it currently has a PSD program 
in place that covers all regulated NSR pollutants, including greenhouse 
gases (GHGs).
    South Dakota implements the PSD program by, for the most part, 
incorporating by reference the federal PSD program as it existed on a 
specific date. The State periodically updates the PSD program by 
revising the date of incorporation by reference and submitting the 
change as a SIP revision. As a result, the SIP revisions generally 
reflect changes to PSD requirements that the EPA has promulgated prior 
to the revised date of incorporation by reference.
    On June 30, 2011, we approved a revision to the South Dakota PSD 
program that addressed the PSD requirements of the Phase 2 Ozone 
Implementation Rule promulgated in 2005 (76 FR 43912, July 22, 2011). 
As a result, the approved South Dakota PSD program meets current 
requirements for ozone.
    With respect to GHGs, on June 23, 2014, the United States Supreme 
Court addressed the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427 (2014). The Supreme Court held that the EPA may 
not treat GHGs as an air pollutant for purposes of determining whether 
a source is a major

[[Page 26011]]

source required to obtain a PSD permit. The Court also held that the 
EPA could continue to require that PSD permits, otherwise required 
based on emissions of pollutants other than GHGs, (anyway sources) 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT).
    In accordance with the Supreme Court decision, on April 10, 2015, 
the U.S. Court of Appeals for the District of Columbia Circuit (the 
D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F. 
App'x. 6, at *7-8 (D.C. Cir. April 10, 2015), issued an amended 
judgment vacating the regulations that implemented Step 2 of the EPA's 
PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations 
that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers 
sources that are required to obtain a PSD permit based on emissions of 
pollutants other than GHGs. Step 2 applied to sources that emitted only 
GHGs above the thresholds triggering the requirement to obtain a PSD 
permit. The amended judgment preserves, without the need for additional 
rulemaking by the EPA, the application of the BACT requirement to GHG 
emissions from Step 1 or ``anyway sources.'' \3\ With respect to Step 2 
sources, the D.C. Circuit's amended judgment vacated the regulations at 
issue in the litigation, including 40 CFR 51.166(b)(48)(v) and 
52.21(b)(49)(v) ``to the extent they require a stationary source to 
obtain a PSD permit if greenhouse gases are the only pollutant (i) that 
the source emits or has the potential to emit above the applicable 
major source thresholds, or (ii) for which there is a significant 
emission increase from a modification.''
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    \3\ See 77 FR 41066 (July 12, 2012) (rulemaking for definition 
of ``anyway'' sources).
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    The EPA is planning to take additional steps to revise the federal 
PSD rules in light of the Supreme Court and subsequent D.C. Circuit 
opinion. Some states have begun to revise their existing SIP-approved 
PSD programs in light of these court decisions, and some states may 
prefer not to initiate this process until they have more information 
about the planned revisions to the EPA's PSD regulations. The EPA is 
not expecting states to have revised their PSD programs in anticipation 
of the EPA's planned actions to revise its PSD program rules in 
response to the court decisions.
    At present, the EPA has determined that South Dakota's SIP is 
sufficient to satisfy elements (C), (D)(i)(II) prong 3, and (J) with 
respect to GHGs. This is because the PSD permitting program previously 
approved by the EPA into the SIP continues to require that PSD permits 
issued to ``anyway sources'' contain limitations on GHG emissions based 
on the application of BACT. The EPA most recently approved revisions to 
South Dakota's PSD program on October 13, 2016 (81 FR 70626). The 
approved South Dakota PSD permitting program does not contain 
provisions regarding Step 2 sources that are no longer necessary in 
light of the Supreme Court decision and D.C. Circuit's amended 
judgment, as these provisions were removed in 81 FR 70626. The SIP 
contains the PSD requirements for applying the BACT requirement to 
greenhouse gas emissions from ``anyway sources'' that are necessary at 
this time. The application of those requirements is not impeded by the 
presence of other previously-approved provisions regarding the 
permitting of Step 2 sources. Accordingly, the Supreme Court decision 
and subsequent D.C. Circuit judgment do not prevent the EPA's approval 
of South Dakota's infrastructure SIP as to the requirements of Elements 
(C), (D)(i)(II) prong 3, and (J).
    Finally, we evaluate the PSD program with respect to current 
requirements for PM2.5. In particular, on May 16, 2008, the 
EPA promulgated the rule, ``Implementation of the New Source Review 
Program for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)'' (73 FR 28321) and on October 20, 2010 the EPA 
promulgated the rule, ``Prevention of Significant Deterioration (PSD) 
for Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant Monitoring 
Concentration (SMC)'' (75 FR 64864). The EPA regards adoption of these 
PM2.5 rules as a necessary requirement when assessing a PSD 
program for the purposes of element (C).
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources 
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment 
that remanded the EPA's 2007 and 2008 rules implementing the 1997 
PM2.5 NAAQS. The court ordered the EPA to ``repromulgate 
these rules pursuant to Subpart 4 consistent with this opinion.'' Id. 
at 437. Subpart 4 of part D, Title 1 of the CAA establishes additional 
provisions for PM nonattainment areas.
    The 2008 implementation rule addressed by the court decision, 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321, 
May 16, 2008), promulgated NSR requirements for implementation of 
PM2.5 in nonattainment areas (nonattainment NSR) and 
attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 
only pertain to nonattainment areas, the EPA does not consider the 
portions of the 2008 Implementation rule that address requirements for 
PM2.5 attainment and unclassifiable areas to be affected by 
the court's opinion. Moreover, the EPA does not anticipate the need to 
revise any PSD requirements promulgated in the 2008 Implementation rule 
in order to comply with the court's decision. Accordingly, the EPA's 
proposed approval of South Dakota's infrastructure SIP as to elements C 
or J with respect to the PSD requirements promulgated by the 2008 
Implementation rule does not conflict with the court's opinion.
    The court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 Implementation rule also does not 
affect the EPA's action on the present infrastructure action. The EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred to 
as nonattainment SIP or attainment plan elements, which would be due by 
the dates statutorily prescribed under subpart 2 through 5 under part 
D, extending as far as 10 years following designations for some 
elements.
    The second PSD requirement for PM2.5 is contained in the 
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (75 FR 64864). The EPA 
regards adoption of the PM2.5 increments as a necessary 
requirement when assessing a PSD program for the purposes of element 
(C).
    On July 22, 2011, we approved revisions to ARSD Chapter 74:36:09 
that adopted by reference federal provisions of 40 CFR part 52, section 
21, as they existed on July 1, 2009 (76 FR 43912, July 22, 2011). As 
July 1, 2009 is after the effective date of the 2008 PM2.5 
Implementation Rule, 76 FR 43912 incorporated the requirements of the 
2008 PM2.5 Implementation Rule; specifically, 40 CFR 
52.21(b)(23)(i) and 52.21(b)(50). On July 29, 2013, the State submitted 
revisions amending the ARSD pertaining to the issuance of South Dakota 
air quality permits. On June 27, 2014, we acted on two pieces from the 
July 29, 2013 submittal (see 79 FR

[[Page 26012]]

36419) which included the removal of ARSD Chapter 74:36:04:03:01 (Minor 
Source Operating Permit Variance) and revisions to ARSD Chapter 
74:36:10 (New Source Review). The July 29, 2013, submittal also 
included revisions to ARSD Chapter 74:36:09 (Prevention of Significant 
Deterioration) which we acted on in our January 29, 2015 rulemaking (80 
FR 4799). The revision adopted by reference federal provisions of 40 
CFR part 52, section 21, as they existed on July 1, 2012. As July 1, 
2012, is after the effective date of the 2010 PM2.5 
Increment Rule, the revisions to ARSD 74:36:09 as submitted on July 29, 
2013, incorporated the requirements of the 2010 PM2.5 
Increment Rule; specifically, 40 CFR 52.21(b)(14)(i),(ii),(iii), 
(b)(15)(i),(ii), and paragraph (c). We approved the necessary portions 
of the July 29, 2013 submission to reflect the requirements of the 2010 
PM2.5 Increment Rule. South Dakota's SIP-approved PSD 
program therefore meets current requirements for PM2.5. As a 
result, the EPA is proposing to approve South Dakota's infrastructure 
SIP for the 2010 SO2 and 2012 PM2.5 NAAQS with 
respect to the requirement in section 110(a)(2)(C) to include a permit 
program in the SIP as required by part C of the Act.

Minor NSR

    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act. The minor NSR program was originally 
approved by the EPA on September 6, 1995 (60 FR 46222). Since approval 
of the minor NSR program, the State and the EPA have relied on the 
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. Additionally, the EPA is not proposing to 
approve or disapprove any state rules with regard to the NSR Reform 
requirements because they are outside the scope of this action. The 
EPA's action taken on changes to South Dakota's minor source NSR 
program (79 FR 36419, June 27, 2014) does not impact the approvability 
of Section 110(a)(2)(C) in this action.
    The EPA is proposing to approve South Dakota's infrastructure SIP 
for the 2010 SO2 and 2012 PM2.5 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.
    4. Interstate transport: The interstate transport provisions in CAA 
section 110(a)(2)(D)(i) (also called ``good neighbor'' provisions) 
require each state to submit a SIP that prohibits emissions that will 
have certain adverse air quality effects in other states. CAA section 
110(a)(2)(D)(i) identifies four distinct elements (or prongs) related 
to the impacts of air pollutants transported across state lines. The 
two elements under section 110(a)(2)(D)(i)(I) require SIPs to contain 
adequate provisions to prohibit any source or other type of emissions 
activity within the state from emitting air pollutants that will (prong 
1) contribute significantly to nonattainment in any other state with 
respect to any such national primary or secondary NAAQS, and (prong 2) 
interfere with maintenance by any other state with respect to the same 
NAAQS. The two elements under section 110(a)(2)(D)(i)(II) require SIPs 
to contain adequate provisions to prohibit emissions that will 
interfere with measures required to be included in the applicable 
implementation plan for any other state under part C (prong 3) to 
prevent significant deterioration of air quality or (prong 4) to 
protect visibility. In this action, the EPA is only addressing prongs 3 
(interference with PSD) and 4 (interference with visibility protection) 
of 110(a)(2)(D)(i) with regard to the 2010 SO2, and 2012 
PM2.5 NAAQS. We are not addressing prong 1 or prong 2 for 
either NAAQS in this action, and will address these prongs in a later 
rulemaking.

A. Evaluation of Interference With Measures To Prevent Significant 
Deterioration (PSD)

    South Dakota's certifications for both the 2010 SO2 and 
2012 PM2.5 NAAQS both referenced the State's SIP-approved 
PSD program to address prong 3 and 4 of 110(a)(2)(D)(i). Both 
certifications can be found in the docket for this action. With regard 
to the PSD portion of section 110(a)(2)(D)(i)(II), this requirement may 
be met by a state's confirmation in an infrastructure SIP submission 
that new major sources and major modifications in the state are subject 
to a comprehensive EPA-approved PSD permitting program in the SIP that 
applies to all regulated NSR pollutants and that satisfies the 
requirements of the EPA's PSD implementation rule(s).\4\ As noted in 
Section VI.3 of this proposed action, South Dakota has such a program, 
and the EPA is therefore proposing to approve South Dakota's SIP for 
the 2010 SO2 and 2012 PM2.5 NAAQS with respect to 
the requirement in section 110(a)(2)(C) to include a permit program in 
the SIP as required by part C of the Act.
---------------------------------------------------------------------------

    \4\ See 2013 Memo.
---------------------------------------------------------------------------

    As stated in the 2013 Memo, in-state sources not subject to PSD for 
any one or more of the pollutants subject to regulation under the CAA 
because they are in a nonattainment area for a NAAQS related to those 
particular pollutants may also have the potential to interfere with PSD 
in an attainment or unclassifiable area of another state. South Dakota 
does not contain any nonattainment areas. The consideration of 
nonattainment NSR for element 3 is therefore not relevant as all major 
sources locating in the State are subject to PSD. As South Dakota's SIP 
meets PSD requirements for all regulated NSR pollutants, the EPA is 
proposing to approve the infrastructure SIP submission as meeting the 
applicable requirements of prong 3 of section 110(a)(2)(D)(i) for the 
2010 SO2 and 2012 PM2.5 NAAQS.

B. Evaluation of Interference With Measures To Protect Visibility

    To determine whether the CAA section 110(a)(2)(D)(i)(II) 
requirement for visibility protection is satisfied, the SIP must 
address the potential for interference with visibility protection 
caused by the pollutant (including precursors) to which the new or 
revised NAAQS applies. An approved regional haze SIP that fully meets 
the regional haze requirements in 40 CFR 51.308 satisfies the 
110(a)(2)(D)(i)(II) requirement for visibility protection as it ensures 
that emissions from the state will not interfere with measures required 
to be included in other state SIPs to protect visibility. In the 
absence of a fully approved regional haze SIP, a state can still make a 
demonstration that satisfies the visibility requirement section of 
110(a)(2)(D)(i)(II).\5\
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    \5\ See 2013 Memo. In addition, the EPA approved the visibility 
requirement of 110(a)(2)(D)(i) for the 1997 Ozone and 
PM2.5 NAAQS for Colorado before taking action on the 
State's regional haze SIP. 76 FR 22036 (April 20, 2011).
---------------------------------------------------------------------------

    South Dakota submitted a regional haze SIP to the EPA on January 
21, 2011, and submitted an amendment to the SIP on September 19, 2011. 
The EPA approved South Dakota's regional haze SIP on April 26, 2012 (77 
FR 24845). The EPA is proposing to find that as a result of the prior 
approval of the South Dakota regional haze SIP, the South Dakota SIP 
contains adequate provisions to address the 110(a)(2)(D)(i) visibility 
requirements for the 2010 SO2 and 2012 PM2.5 
NAAQS. Therefore, we are proposing to approve the South Dakota SIP as 
meeting the requirements of prong 4 of CAA section 110(a)(2)(D)(i) for 
both of these NAAQS.

[[Page 26013]]

    5. Interstate and International transport provisions: CAA section 
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring 
compliance with the applicable requirements of CAA sections 126 and 115 
(relating to interstate and international pollution abatement). 
Specifically, CAA section 126(a) requires new or modified major sources 
to notify neighboring states of potential impacts from the source.
    Section 126(a) 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 of the 
U.S. EPA (Administrator) regarding sources violating the ``interstate 
transport'' provisions of section 110(a)(2)(D)(i). Section 115 
similarly pertains to international transport of air pollution.
    As required by 40 CFR 51.166(q)(2)(iv), South Dakota's SIP-approved 
PSD program requires notice to states whose lands may be affected by 
the emissions of sources subject to PSD.\6\ This suffices to meet the 
notice requirement of section 126(a).
---------------------------------------------------------------------------

    \6\ See ARSD 74:36:09:03.
---------------------------------------------------------------------------

    South Dakota has no pending obligations under sections 126(c) or 
115(b); therefore, its SIP currently meets the requirements of those 
sections. In summary, the SIP meets the requirements of CAA section 
110(a)(2)(D)(ii) for the 2010 SO2 and 2012 PM2.5 
NAAQS.
    6. Adequate resources: Section 110(a)(2)(E)(i) requires states to 
provide ``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).'' Section 
110(a)(2)(E)(ii) also requires each state to ``comply with the 
requirements respecting state boards'' under CAA section 128. Section 
110(a)(2)(E)(iii) requires states to provide ``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. Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal 
Authority Under State Law To Carry Out Its SIP, and Related Issues

    SDCL 34A-1-57 through 34A-1-60 provide adequate authority for the 
State of South Dakota and the DENR to carry out its SIP obligations 
with respect to the 2010 SO2 and 2012 PM2.5 
NAAQS. The State receives sections 103 and 105 grant funds through its 
Performance Partnership Grant from the EPA 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). The regulations cited by South Dakota in their 
certifications and contained within this docket also provide the 
necessary assurances that the State has responsibility for adequate 
implementation of SIP provisions by local governments. Therefore, we 
propose to approve South Dakota's SIP as meeting the requirements of 
section 110(a)(2)(E)(i) and (E)(iii) for the 2010 SO2 and 
2012 PM2.5 NAAQS.

b. Sub-Element (ii): State Boards

    Section 110(a)(2)(E)(ii) requires each state's SIP to contain 
provisions that comply with the requirements of section 128 of the CAA. 
That provision contains two explicit requirements: (i) That any board 
or body which approves permits or enforcement orders under the CAA 
shall have at least a majority of members who represent the public 
interest and do not derive a significant portion of their income from 
persons subject to such permits and enforcement orders; and (ii) that 
any potential conflicts of interest by members of such board or body or 
the head of an executive agency with similar powers be adequately 
disclosed.\7\
---------------------------------------------------------------------------

    \7\ The EPA's proposed rule notice (79 FR 71040, Dec. 1, 2014) 
includes a discussion of the legislative history of how states could 
meet the requirements of CAA section 128.
---------------------------------------------------------------------------

    On January 29, 2015 (80 FR 4799), the EPA approved SDCL 1-40-25.1 
and revisions to ARSD 74:09, Procedures Board of Minerals and 
Environment, into the South Dakota SIP as meeting the requirements of 
section 128 of the Act. SDCL 1-40-25.1 addresses board composition 
requirements in section 128(a)(1) and ARSD 74:09 addresses conflict of 
interest requirements in section 128(a)(2). Details on how these 
portions of the SDCL and ARSD meet the requirements of section 128 are 
provided in our December 1, 2014 (79 FR 71040) proposal notice. In our 
January 29, 2015 action, we correspondingly approved South Dakota's 
infrastructure SIP for the 1997 and 2006 PM2.5, 2008 lead, 
2008 ozone and 2010 NO2 NAAQS for element (E)(ii). South 
Dakota's SIP continues to meet the requirements of section 
110(a)(2)(E)(ii), and we propose to approve the infrastructure SIP for 
the 2010 SO2 and 2012 PM2.5 NAAQS for this 
element.
    7. Stationary source monitoring system: 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) periodic 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.''
    The South Dakota provisions listed in the State's certifications 
and contained within this docket provide authority to establish a 
program for measurement and testing of sources, including requirements 
for sampling and testing. South Dakota's SIP approved continuous 
emissions monitoring system rules (ARSD 74:36:13 and contained within 
this docket) require facilities to monitor and report emission data. 
ARSD 74:36:04:15(10), Contents of operating permit, requires operating 
permits for minor sources to include monitoring and related record 
keeping and reporting requirements. Reports contain the quantity of 
hazardous air pollutants, in tons, emitted for each 12-month period in 
the reporting period and supporting documentation. Operating permits 
for minor sources must comply with emission limits and other 
requirements of the Act (ARSD 74:36:04:04 and ARSD 74:36:04:15).
    Additionally, ARSD 74:36:05:16.01(9) is applicable regarding data 
from sources with title V permits. South Dakota has an approved title V 
program (61 FR 2720, Jan. 29, 1996) and the definition of applicable 
requirements for a Part 70 source has been approved into its SIP at 
ARSD 74:36:01:05. This re-enforces a facility's record keeping and 
reporting emissions data responsibilities under title V permitting, 
even though the title V program is not approved into the SIP.
    Furthermore, South Dakota is required to submit emissions data to 
the EPA for purposes of the National Emissions Inventory (NEI). The NEI 
is the EPA's central repository for air emissions data. The EPA 
published the Air Emissions Reporting Rule (AERR) on December 5, 2008, 
which modified the requirements for collecting and reporting air 
emissions data (73 FR 76539). The AERR shortened the time states had to 
report emissions data from 17 to 12 months, giving states one calendar 
year to submit emissions data.

[[Page 26014]]

All states are required to submit a comprehensive emissions inventory 
every three years and report emissions for certain larger sources 
annually through the EPA's online Emissions Inventory System. States 
report emissions data for the six criteria pollutants and their 
associated precursors--nitrogen oxides, sulfur dioxide, ammonia, lead, 
carbon monoxide, particulate matter, and volatile organic compounds. 
Many states also voluntarily report emissions of hazardous air 
pollutants. South Dakota made its latest update to the NEI on January 
15, 2016. The EPA compiles the emissions data, supplementing it where 
necessary, and releases it to the general public through the Web site 
http://www.epa.gov/ttn/chief/eiinformation.html.
    Based on the analysis above, we propose to approve the South 
Dakota's SIP as meeting the requirements of CAA section 110(a)(2)(F) 
for the 2010 SO2 and 2012 PM2.5 NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) of the CAA requires 
infrastructure SIPs to ``provide for authority comparable to that in 
[CAA section 303 \8\] and adequate contingency plans to implement such 
authority.''
---------------------------------------------------------------------------

    \8\ Discussion of the requirements for meeting CAA section 303 
is provided in our notice of proposed rulemaking: Promulgation of 
State Implementation Plan Revisions; Infrastructure Requirements for 
the 1997 and 2006 PM2.5, 2008 Lead, 2008 Ozone, and 2010 
NO2 National Ambient Air Quality Standards; South Dakota (79 FR 
71040, Dec. 1, 2014) under ``VI. Analysis of State Submittals, 8. 
Emergency powers.''
---------------------------------------------------------------------------

    Under CAA section 303, the Administrator has authority to bring 
suit to immediately restrain an air pollution source that presents an 
imminent and substantial endangerment to public health or welfare, or 
the environment. If such action may not practicably assure prompt 
protection, then the Administrator has authority to issue temporary 
administrative orders to protect the public health or welfare, or the 
environment, and such orders can be extended if the EPA subsequently 
files a civil suit. SDCL section 34A-1-45 and ARSD section 74:36:03:01 
provide APCD with general emergency authority comparable to that in 
section 303 of the Act.\9\
---------------------------------------------------------------------------

    \9\ See our proposed rulemaking at 79 FR 71053 (December 1, 
2014), section VI.8 for a complete discussion on how SDCL section 
34A-1-45 and ARSD section 74:36:03:01 provide authority comparable 
to that in CAA section 303.
---------------------------------------------------------------------------

    States must also have adequate contingency plans adopted into their 
SIP to implement the air agency's emergency episode authority (as 
discussed above). This can be met can by submitting a plan that meets 
the applicable requirements of 40 CFR part 51, subpart H for the 
relevant NAAQS if the NAAQS is covered by those regulations.
    Rules contained in ARSD and South Dakota's SIP 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 a contingency plan to implement the emergency 
episode provisions of the SIP. As of the date of South Dakota's 
submittal, the EPA has not established priority classification for a 
significant harm level for PM2.5.
    Subpart H of 40 CFR part 51 requires states to classify regions and 
to develop contingency plans (also known as emergency episode plans) 
after ambient concentrations of certain criteria pollutants in an area 
have exceeded specified levels. However, Subpart H does not currently 
address requirements for the 24-hour PM2.5 standard. In 
2009, the EPA issued a guidance memorandum that, among other things, 
recommended an approach for states to address the contingency plan 
requirements of 110(a)(2)(G) with respect to the 2006 PM2.5 
NAAQS.\10\ The guidance, in Attachment A, suggested that states develop 
a contingency plan if, based on the most recent three calendar years of 
data, an area within the state had monitored and recorded a 24-hour 
PM2.5 level greater than 140.4 mg/m3. For states that were 
to develop a contingency plan, the guidance recommended states set 
priority and emergency levels consistent with requirements of 40 CFR 
51.150 through 51.153. The EPA notes that section 51.153 requires 
periodic reevaluation of priority classifications based on the three 
most recent years of air quality data.
---------------------------------------------------------------------------

    \10\ Memorandum from William T. Harnett, Director, Air Quality 
Policy Division, to Regional Air Division Directors, Guidance on SIP 
Elements Required under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) Standards (NAAQS), at p. 6-7 
(Sep. 25, 2009).
---------------------------------------------------------------------------

    South Dakota has recorded no levels of ambient air concentrations 
in the three most recent complete calendar years--2013, 2014, and 
2015--that exceed the 2009 guidance memorandum.\11\ Furthermore, South 
Dakota's is classified as Priority III for SO2 and is 
therefore not required to submit emergency episode contingency plans 
for SO2.
---------------------------------------------------------------------------

    \11\ Memorandum from William T. Harnett, Director, Air Quality 
Policy Division, to Regional Air Division Directors, Guidance on SIP 
Elements Required under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) Standards (NAAQS), at p. 6-7 
(Sep. 25, 2009).
---------------------------------------------------------------------------

    Revisions to the South Dakota Air Quality Episodes rules ARSD 
74:36:03:01 ``Air pollution emergency episode'' and ARSD 74:36:03:02 
``Episode emergency contingency plan'' were most recently approved on 
June 27, 2014 (79 FR 36425). We find that South Dakota's air pollution 
emergency rules include PM2.5, and SO2; establish 
stages of episode criteria; provide for public announcement whenever 
any episode stage has been determined to exist; and specify emission 
control actions to be taken at each episode stage, consistent with the 
EPA emergency episode SIP requirements set forth at 40 CFR part 51 
subpart H (prevention of air pollution emergency episode) for 
PM2.5 and SO2. The SIP therefore meets the 
requirements of 110(a)(2)(G). Based on the above analysis, we propose 
approval of South Dakota's SIP as meeting the requirements of CAA 
section 110(a)(2)(G) for the 2010 SO2 and 2012 
PM2.5 NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan: (i) ``[f]rom 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].''
    South Dakota's statutory provision at SDCL 34A-1-6 gives DENR 
sufficient authority to meet the requirements of 110(a)(2)(H). 
Therefore, we propose to approve South Dakota's SIP as meeting the 
requirements of CAA section 110(a)(2)(H).
    10. 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 PSD of 
air quality and visibility protection).''
    The State has demonstrated it has the authority and rules in place 
through its certifications (contained within this docket) 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

[[Page 26015]]

SIP applies, consistent with the requirements of CAA section 121. 
Furthermore, the EPA previously addressed the requirements of CAA 
section 127 for the South Dakota SIP and determined public notification 
requirements are appropriate (45 FR 58525, Sept. 4, 1980).
    As previously discussed, the State has a SIP-approved PSD program 
that incorporates by reference the federal program at 40 CFR 52.21. The 
EPA has further evaluated South Dakota's SIP approved PSD program in 
this proposed action under element (C) and determined the State has 
satisfied the requirements of element 110(a)(2)(C), as previously 
noted. Therefore, the State has also satisfied the requirements of 
element 110(a)(2)(J).
    Finally, with regard to the applicable requirements for visibility 
protection, the EPA recognizes 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.
    Based on the above analysis, we propose to approve the South Dakota 
SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 
2010 SO2 and 2012 PM2.5 NAAQS.
    11. Air quality and modeling/data: Section 110(a)(2)(K) requires 
each SIP to 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.''
    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.
    Additionally, SDLC section 34A-1-1, 34A-1-10, and 1-40-31 provide 
the Department with the authority to advise, consult, and cooperate 
with the EPA and provide the EPA with public records, such as air 
quality modeling. As a result, the SIP provides for such air quality 
modeling as the Administrator has prescribed. Therefore, we propose to 
approve the South Dakota SIP as meeting the CAA section 110(a)(2)(K) 
for the 2010 SO2 and 2012 PM2.5 NAAQS.

12. Permitting Fees

    Section 110(a)(2)(L) requires ``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.''
    The funding sources used for the PSD permit reviews conducted by 
South Dakota derive from EPA grant and matching State general 
funds.\12\ In light of the State's experience that funding from grants 
and general funds has been sufficient to operate a successful PSD 
program, it is reasonable that the PSD permit applicants are not 
charged any permit-specific fees.
---------------------------------------------------------------------------

    \12\ See Email from Brian Gustafson ``Question Regarding 
Permitting Fees for SD iSIP Action'' July 24, 2014, available within 
docket.
---------------------------------------------------------------------------

    We also note that all the State SIPs we are proposing to approve in 
this action cite the regulation that provides for collection of 
permitting fees under the State's EPA-approved title V permit program 
(ARSD 74:37:01), which we approved and became effective February 28, 
1996 (61 FR 2720, Jan. 29, 1996). Therefore, based on the State's 
experience in relying on the grant and general funds for PSD permits, 
and the use of title V fees to implement and enforce PSD permits once 
they are incorporated into title V permits, we propose to approve the 
submissions as supplemented by the State for the 2010 SO2 
and 2012 PM2.5 NAAQS.

13. 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].''
    The statutory provisions cited in South Dakota's SIP submittals 
(SDCL section 34-A-1 and 34A-1-10 Environmental Protection, contained 
within this docket) provide the South Dakota DENR with the authority to 
advise, consult, and cooperate with agencies of the state, local 
governments, industries, other states, interstate or inter-local 
agencies, the federal government, and with interested persons or groups 
and therefore meet the requirements of CAA section 110(a)(2)(M). We 
propose to approve South Dakota's SIP as meeting these requirements for 
the 2010 SO2 and 2012 PM2.5 NAAQS.

VII. What action is the EPA taking?

    In this action, the EPA is proposing to approve infrastructure 
elements for the 2010 SO2 and 2012 PM2.5 NAAQS 
from the State's certifications as shown in Table 1. Elements we 
propose no action on are reflected in Table 2. A comprehensive summary 
of infrastructure elements organized by the EPA's proposed rule action 
are provided in Table 1 and Table 2.

Table 1--List of South Dakota Infrastructure Elements and Revisions That
                     the EPA Is Proposing To Approve
------------------------------------------------------------------------
                          Proposed for approval
-------------------------------------------------------------------------
December 20, 2013 submittal--2010 SO2 NAAQS:
    (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K),
     (L) and (M).
January 25, 2016 submittal--2012 PM2.5 NAAQS:
    (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K),
     (L) and (M).
------------------------------------------------------------------------


[[Page 26016]]


Table 2--List of South Dakota Infrastructure Elements and Revisions That
                the EPA Is Proposing To Take no action On
------------------------------------------------------------------------
   Proposed for no action (Revision to be made in separate rulemaking
                                action.)
-------------------------------------------------------------------------
December 20, 2013 submittal--2010 SO2 NAAQS:
    (D)(i)(I) prongs 1 and 2.
January 25, 2016 submittal--2012 PM2.5 NAAQS:
    (D)(i)(I) prongs 1 and 2.
------------------------------------------------------------------------

VIII. Statutory and Executive Orders Review

    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, the 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, Oct. 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, Aug. 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 the 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, Feb. 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where the EPA or an Indian tribe has demonstrated 
that a tribe has jurisdiction. In those areas of Indian country, the 
rule does not have tribal implications and will not impose substantial 
direct costs on tribal governments or preempt tribal law as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

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

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

    Dated: May 16, 2017.
Suzanne J. Bohan,
Acting Regional Administrator, Region 8.
[FR Doc. 2017-11573 Filed 6-5-17; 8:45 am]
 BILLING CODE 6560-50-P