[Federal Register Volume 85, Number 97 (Tuesday, May 19, 2020)]
[Proposed Rules]
[Pages 29882-29895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10418]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2019-0642; FRL-10007-61-Region 8]


Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 2015 Ozone National Ambient Air 
Quality Standards; South Dakota; Revisions to the Administrative Rules 
of South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On October 1, 2015, the Environmental Protection Agency (EPA) 
promulgated the 2015 ozone NAAQS, revising the standard to 0.070 parts 
per million. Whenever a new or revised National Ambient Air Quality 
Standard (NAAQS) is promulgated, the Clean Air Act (CAA or Act) 
requires each state to submit a State Implementation Plan (SIP) 
revision for the implementation, maintenance, and enforcement of the 
new standard. This submission is commonly referred to as an 
infrastructure SIP. In this action we are proposing to approve the 
State of South Dakota's January 15, 2020 SIP submission that addresses 
infrastructure requirements for the 2015 ozone NAAQS. Additionally, in 
this action, we are proposing to approve a SIP revision submitted by 
the State of South Dakota on January 3, 2020 that revises the 
Administrative Rules of South Dakota (ARSD), Air Pollution Control 
Program, updating the date of incorporation by reference of federal 
rules in ARSD chapters pertaining to definitions, ambient air quality, 
air quality episodes, prevention of significant deterioration (PSD), 
new source review, performance testing, control of visible emissions, 
continuous emission monitoring systems, State facilities in Rapid City 
area, construction permits and regional haze program administrative 
rules.

DATES: Written comments must be received on or before June 18, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2019-0642, to the Federal Rulemaking Portal: https://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.
    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 available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air and Radiation 
Division, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. The 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: Kate Gregory, (303) 312-6175, 
[email protected]. Mail can be directed to the Air and Radiation 
Division, U.S. EPA, Region 8, Mail-code 8ARD-QP, 1595 Wynkoop Street, 
Denver, Colorado, 80202-1129.

SUPPLEMENTARY INFORMATION: Throughout this document, ``reviewing 
authority,'' ``we,'' ``us,'' and ``our'' refer to the EPA.

I. Background

    On March 12, 2008, the EPA promulgated a new NAAQS for ozone, 
revising the levels of the primary and secondary 8-hour ozone standards 
from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436). More 
recently, on October 1, 2015, the EPA promulgated and revised the NAAQS 
for ozone, further strengthening the primary and secondary 8-hour 
standards to 0.070 ppm (80 FR 65292). The October 1, 2015 standards are 
known as the 2015 ozone NAAQS.
    Under sections 110(a)(1) and (2) of the CAA, after the promulgation 
of a new or revised NAAQS 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 the existing SIPs 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).

A. 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

[[Page 29883]]

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 for South Dakota is 
contained in section III of this document. Additionally, we are 
proposing to approve revisions to the ARSD submitted by the State of 
South Dakota on January 3, 2020.

B. How did the state address the infrastructure elements of Sections 
110(a)(1) and (2)?

    The South Dakota 2015 ozone NAAQS infrastructure SIP submissions 
demonstrates how the State, where applicable, has plans in place that 
meet the requirements of section 110 for the 2015 ozone NAAQS. The 
State submittal is available within the electronic docket for today's 
proposed action at www.regulations.gov.
    The South Dakota Department of Environment and Natural Resources 
(DENR) submitted a certification of South Dakota's infrastructure SIP 
for the 2015 ozone NAAQS on January 15, 2020. The State's submission 
references the ARSD and the South Dakota Codified Laws (SDCL). The ARSD 
and SDCL referenced in the submittals are publicly available at http://sdlegislature.gov/Rules/RulesList.aspx and http://sdlegislature.gov/Statutes/Codified_Laws/default.aspx. South Dakota's approved SIP can be 
found at 40 CFR 52.2170.

II. What is the scope of this proposed rule?

    The EPA is acting upon the SIP submission from South Dakota that 
addresses the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2015 ozone 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 3 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.
    Whenever the EPA promulgates a new or revised NAAQS, CAA section 
110(a)(1) requires states to make SIP submissions to provide for the 
implementation, maintenance and enforcement of the NAAQS. This 
particular type of SIP submission is commonly referred to as an 
``infrastructure SIP.'' These submissions must meet the various 
requirements of CAA section 110(a)(2), as applicable. Due to ambiguity 
in some of the language of CAA section 110(a)(2), the EPA finds that it 
is appropriate to interpret these provisions in the specific context of 
acting on infrastructure SIP submissions. The EPA has previously 
provided comprehensive guidance on the application of these provisions 
through a guidance document for infrastructure SIP submissions and 
through regional actions on infrastructure submissions.\1\ Unless 
otherwise noted below, we are following that existing approach in 
acting on this submission. In addition, in the context of acting on 
such infrastructure submissions, the EPA evaluates the state's SIP for 
facial compliance with statutory and regulatory requirements, not for 
the state's implementation of its SIP.\2\ The EPA has other authority 
to address any issues concerning a state's implementation of the rules, 
regulations, consent orders, etc. that comprise its SIP.
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    \1\ The EPA explains and elaborates on these ambiguities and its 
approach to address them in its September 13, 2013 Infrastructure 
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/. Guidance on 
Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as 
well as in numerous agency actions, including the EPA's prior action 
on South Dakota's infrastructure SIP to address 1997 and 2006 
PM2.5, 2008 Lead, 2008 Ozone, and 2010 NO2 
NAAQS (79 FR 71040, (December 1, 2014)).
    \2\ See U.S. Court of Appeals for the Ninth Circuit decision in 
Montana Environmental Information Center v. EPA, No. 16-71933 
(August 30, 2018).
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III. The EPA's Evaluation of the State Submittals

A. CAA Section 110(a)(2)(A): Emission Limits and Other Control Measures

    Section 110(a)(2)(A) requires SIPs to include enforceable emission 
limitations and other control measures, means, or techniques (including 
economic incentives such as fees, marketable permits, and auctions of 
emissions rights), as well as schedules and timetables for compliance 
as may be necessary or appropriate to meet the applicable requirements 
of the Act.
    (i) The State's submission:
    Multiple SIP-approved ARSD cited in South Dakota's certification 
provide enforceable emission limitations and other control measures, 
means or techniques, schedules for compliance, and other related 
matters necessary to meet the requirements of the CAA section 
110(a)(2)(A) for the 2015 NAAQS, subject to the following 
clarifications.
    (ii) The EPA's analysis:
    The EPA does not consider the SIP requirements triggered by the 
nonattainment area mandates in part D of Title 1 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 2015 
ozone NAAQS. South Dakota's certification (contained within this 
docket) generally listed provisions within its SIP which regulate 
pollutants through various programs, including major or minor source 
permit programs. This suffices, in the case of South Dakota, to meet 
the requirements of section 110(a)(2)(A) for the 2015 ozone NAAQS.

B. CAA Section 110(a)(2)(B): 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.''
    (i) The State's submission:
    As discussed in South Dakota's submission, the DENR periodically

[[Page 29884]]

submits a Quality Management Plan and a Quality Assurance Project Plan 
to the EPA. These plans cover procedures to monitor and analyze data. 
As part of the monitoring SIP, South Dakota submits an Annual 
Monitoring Network Plan (AMNP) each year for the EPA's approval.
    (ii) The EPA's analysis:
    A comprehensive AMNP, intended to fully meet the federal 
requirements, was submitted to the EPA by South Dakota on July 1, 2019 
and subsequently approved by the EPA. South Dakota's SIP-approved 
regulations, specifically ARSD 74:36:02, provide for the design and 
operation of its monitoring network, reporting of data obtained from 
the monitors, and an annual network review including notification to 
the EPA of any changes, and public notification of exceedances of 
NAAQS. As described in its submission, South Dakota operates a 
comprehensive monitoring network, including ozone monitoring, compiles 
and analyzes collected data, and submits the data to the EPA's Air 
Quality System on a quarterly basis. Therefore, we are proposing to 
approve the South Dakota SIP as meeting the requirements of CAA section 
110(a)(2)(B) for the 2015 ozone NAAQS.

C. CAA Section 110(a)(2)(C): Program for Enforcement of Control 
Measures and for Construction or Modification of Stationary Sources

    CAA section 110(a)(2)(C) requires each state to have a program that 
provides for the following three sub-elements: Enforcement; state-wide 
regulation of new and modified minor sources and minor modifications of 
major sources; and preconstruction permitting of major sources and 
major modifications in areas designated attainment or unclassifiable 
for the 2015 ozone NAAQS as required by CAA Title I part C (i.e., the 
major source PSD program).
    (i) The State's submission:
    The South Dakota submission refers to the following SIP-approved 
SDCL and ARSD which address and provide for meeting all requirements of 
CAA section 110(a)(2)(C):
     SDCL 34A-1-39 through 34A-1-54 and 34A-1-62;
     ARSD Chapter 74:36:09 (prevention of significant 
deterioration); and
     ARSD Chapter 74:36:20 (construction permits for new 
sources and modifications)
    (ii) The EPA's analysis:
    With regard to the sub-element requirement of a program providing 
for enforcement of all SIP measures, we are proposing to find that 
South Dakota's regulations provide broad authority to allow the State 
to enforce applicable laws, regulations, and standards; to seek 
injunctive relief; and to provide authority to prevent construction, 
modification, or operation of any stationary source at any location 
where emissions from such source will prevent the attainment or 
maintenance of a national standard or interfere with PSD requirements. 
The ARSD regulations above address South Dakota's program for 
enforcement of control measures.
    Turning to the second sub-element, regulation of new and modified 
minor sources and minor modifications of major sources, South Dakota 
has a SIP-approved minor new source review (NSR) program, adopted under 
section 110(a)(2)(C) of the Act. The State and the EPA have relied on 
the State's existing minor NSR program to assure that new and modified 
sources not captured by the major NSR permitting program do not 
interfere with attainment and maintenance of the NAAQS. We propose to 
determine that this program regulates construction of new and modified 
minor sources of ozone precursors for purposes of the 2015 ozone NAAQS.
    Lastly, to generally meet the requirements of CAA section 
110(a)(2)(C) with regard to the sub-element of preconstruction 
permitting of major sources and major modifications in areas designated 
attainment or unclassifiable for the subject NAAQS as required by CAA 
Title I part C, a state is required to have PSD, nonattainment NSR 
(NNSR), and minor NSR permitting programs adequate to implement the 
2015 ozone NAAQS. 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. To 
meet this requirement, South Dakota cited its PSD program codified at 
ARSD Chapter 74:36:09. We most recently approved revisions to South 
Dakota's PSD program on September 11, 2019 (84 FR 47887), and we most 
recently approved revisions to South Dakota's NNSR program on July 26, 
2018 (83 FR 29698.) The EPA is proposing to approve South Dakota's 
infrastructure SIP for the 2015 ozone NAAQS with respect to the general 
requirement in section 110(a)(2)(C) to include a PSD program in the SIP 
that covers all regulated pollutants including greenhouse gases (GHGs).
    In addition to these requirements, there are four other revisions 
to the South Dakota SIP that are necessary to meet the requirements of 
infrastructure element 110(a)(2)(C). These four revisions are related 
to (1) the Ozone Implementation NSR Update (November 29, 2005, 70 FR 
71612); (2) the ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule'' (June 3, 2010, 75 FR 31514); (3) the 
NSR PM2.5 Rule (May 16, 2008, 73 FR 28321); and (4) the 
final rulemaking entitled ``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, Oct. 20, 
2010).
    We approved revisions to South Dakota's PSD program that addressed 
the PSD requirements of the Phase 2 Ozone Implementation Rule 
promulgated on November 29, 2005 (70 FR 71612). As a result, the 
approved South Dakota PSD program meets the 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 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) \3\ contain limitations on GHG emissions based on 
the application of Best Available Control Technology (BACT).
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    \3\ See 77 FR 41066 (July 12, 2012) (rulemaking for definition 
of ``anyway'' sources).
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    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

[[Page 29885]]

Step 1 or ``anyway sources.'' 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), ``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.'' The EPA 
subsequently revised our PSD regulations to remove the vacated 
provisions. 80 FR 50199 (Aug. 19, 2015).
    The EPA has subsequently revised our PSD regulations in response to 
the Court's decision and the subsequent amended judgment by 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). South Dakota generally 
incorporates by reference (IBR) the EPA's PSD regulations found in 40 
CFR 52.21. These can be found in the State's SIP at 74:36:09. We 
recently approved revisions to update South Dakota's IBR in 40 CFR 
52.21 as of July 1, 2016. Thus, we find that the South Dakota PSD 
program is consistent with our revised regulations. See 83 FR 296987 
(June 26, 2018.) Thus, South Dakota's PSD program is current with 
respect to regulation of GHGs.
    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.), 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 (NNSR) 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 decision. 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 for 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 NNSR 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 NNSR 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). South Dakota generally incorporates by reference (IBR) the EPA's 
PSD regulations found in 40 CFR 52.21. These can be found in the 
State's SIP at 74:36:09.
    As mentioned above, we are proposing to approve the January 3, 2020 
submitted revisions to the ARSD by the State. The State's January 3, 
2020 submission includes a revision to ARSD 74:36:09 and proposes an 
update to the federal reference date to July 1, 2018. Thus, this 
submitted revision makes South Dakota's PSD program up to date with 
respect to current requirements for PM2.5 and meets current 
requirements for PM2.5.
    The EPA therefore is proposing to approve South Dakota's SIP for 
the 2015 ozone 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.
    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act. The minor NSR program is found in 
74:36:04 of the South Dakota SIP, and was originally approved by the 
EPA on December 18, 1998 (63 FR 55804). Since approval of the minor NSR 
program, the State and the EPA have relied on the program to ensure 
that new and modified sources not captured by the major NSR permitting 
programs do not interfere with attainment and maintenance of the NAAQS. 
Therefore, based on the foregoing, the EPA is proposing to fully 
approve South Dakota's infrastructure SIP for the 2015 ozone NAAQS with 
respect to the general requirement in section 110(a)(2)(C) to include a 
program in the SIP that regulates the modification and construction of 
any stationary source as necessary to assure that the NAAQS are 
achieved.
    Therefore, based on the foregoing, the EPA is proposing to approve 
South Dakota's infrastructure SIP for the 2015 ozone NAAQS with respect 
to the general requirement in section 110(a)(2)(C) to include a program 
in the SIP that regulates the enforcement of control measures in the 
SIP, and the modification and construction of any stationary source as 
necessary to assure that the NAAQS are achieved.

D. CAA Section 110(a)(2)(D): Interstate Transport

    CAA section 110(a)(2)(D)(i) consists of four separate elements, or 
``prongs.'' CAA section 110(a)(2)(D)(i)(I) requires SIPs to contain 
adequate provisions prohibiting emissions which will contribute 
significantly to nonattainment of the NAAQS in any other state (prong 
1), and adequate provisions prohibiting emissions which will interfere 
with maintenance of the NAAQS by any other state (prong 2). CAA section 
110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions 
prohibiting emissions which will interfere with any other state's 
required measures to prevent significant deterioration of its air 
quality (prong 3), and adequate provisions prohibiting emissions which 
will interfere with any other state's required measures to protect 
visibility (prong 4). Under section 110(a)(2)(D)(i)(I) of the CAA, the 
EPA and states must give independent

[[Page 29886]]

significance to prong 1 and prong 2 when evaluating downwind air 
quality problems under section 110(a)(2)(D)(i)(i)(I).\4\
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    \4\ See North Carolina v. EPA, 531 F.3d 896, 909-911 (2008).
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    With regard to the prong 1 and prong 2 requirements of CAA section 
110(a)(2)(D)(i)(I), the EPA has addressed these requirements with 
respect to prior ozone NAAQS in several regional regulatory actions, 
including the Cross-State Air Pollution Rule (CSAPR), which addressed 
interstate transport with respect to the 1997 ozone NAAQS as well as 
the 1997 and 2006 fine PM standards, and the CSAPR Update for the 2008 
ozone NAAQS (CSAPR Update).\5\ These actions only addressed interstate 
transport in the Eastern United States \6\ and did not address the 2015 
ozone NAAQS.
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    \5\ See 76 FR 48208 (August 8, 2011) (i.e., CSAPR) and 81 FR 
74504 (October 26, 2016) (i.e., CSAPR Update).
    \6\ For purposes of the CSAPR and CSAPR Update actions, the 
Western U.S. (or the West) was considered to consist of the 11 
western contiguous states of Arizona, California, Colorado, Idaho, 
Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. 
The Eastern U.S. (or the East) was considered to consist of the 37 
states east of the 11 Western states.
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    Through the development and implementation of CSAPR, the CSAPR 
Update and previous regional rulemakings pursuant to the good neighbor 
provision,\7\ the EPA, working in partnership with states, developed 
the following four-step interstate transport framework to address the 
requirements of the good neighbor provision for the ozone NAAQS: \8\ 
(1) Identify downwind air quality problems; (2) identify upwind states 
that impact those downwind air quality problems sufficiently such that 
they are considered ``linked'' and therefore warrant further review and 
analysis; (3) identify the emissions reductions necessary (if any), 
considering cost and air quality factors, to prevent linked upwind 
states identified in step 2 from contributing significantly to 
nonattainment or interfering with maintenance of the NAAQS at the 
locations of the downwind air quality problems; and (4) adopt permanent 
and enforceable measures needed to achieve those emissions reductions.
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    \7\ Other regional rulemakings addressing ozone transport 
include the NOX SIP Call, 63 FR 57356 (October 27, 1998), 
and the Clean Air Interstate Rule (CAIR), 70 FR 25162 (May 12, 
2005).
    \8\ The four-step interstate framework has also been used to 
address requirements of the good neighbor provision for some 
previous particulate matter and ozone NAAQS, including in the 
Western United States. See, e.g., 83 FR 30380 (June 28, 2018) and 83 
FR 5375, 5376-77 (February 7, 2018).
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    The EPA has released several documents containing information 
relevant to evaluating interstate transport with respect to the 2015 
ozone NAAQS. First, on January 6, 2017, the EPA published a notice of 
data availability (NODA) with preliminary interstate ozone transport 
modeling with projected ozone design values for 2023, on which we 
requested comment.\9\ The year 2023 was used as the analytic year for 
this preliminary modeling because that year aligns with the expected 
attainment year for Moderate ozone nonattainment areas.\10\ On October 
27, 2017, we released a memorandum (October 2017 Memo) containing 
updated modeling data for 2023, which incorporated changes made in 
response to comments on the NODA.\11\ Although the October 2017 Memo 
released data for a 2023 modeling year, we specifically stated that the 
modeling may be useful for states developing SIPs to address remaining 
good neighbor obligations for the 2008 ozone NAAQS but did not address 
the 2015 ozone NAAQS. And, on March 27, 2018, we issued a memorandum 
(March 2018 Memo) indicating the same 2023 modeling data released in 
the October 2017 Memo could also be useful for evaluating potential 
downwind air quality problems with respect to the 2015 ozone NAAQS 
(step 1 of the four-step framework).
---------------------------------------------------------------------------

    \9\ See Notice of Availability of the Environmental Protection 
Agency's Preliminary Interstate Ozone Transport Modeling Data for 
the 2015 Ozone National Ambient Air Quality Standard (NAAQS), 82 FR 
1733 (January 6, 2017).
    \10\ 82 FR 1735 (January 6, 2017).
    \11\ See Information on the Interstate Transport State 
Implementation Plan Submissions for the 2008 Ozone National Ambient 
Air Quality Standards under Clean Air Act Section 
110(a)(2)(D)(i)(I), October 27, 2017, available in the docket for 
this action or at https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices.
---------------------------------------------------------------------------

    The March 2018 Memo included newly available contribution modeling 
results to assist states in evaluating their impact on potential 
downwind air quality problems (step 2 of the four-step framework) in 
their efforts to develop good neighbor SIPs for the 2015 ozone NAAQS to 
address their interstate transport obligations.\12\ The EPA 
subsequently issued two more memoranda in August and October 2018, 
providing guidance to states developing good neighbor SIPs for the 2015 
NAAQS concerning, respectively, potential contribution thresholds that 
may be appropriate to apply in step 2 and considerations for 
identifying downwind areas that may have problems maintaining the 
standard (under interstate transport prong 2) at step 1 of the 
framework.\13\
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    \12\ See Information on the Interstate Transport State 
Implementation Plan Submissions for the 2015 Ozone National Ambient 
Air Quality Standards under Clean Air Act Section 
110(a)(2)(D)(i)(I), March 27, 2018, available in the docket for this 
action or at. https://www.epa.gov/interstate-air-pollution-transport/memos-and-notices-regarding-interstate-air-pollution-transport.
    \13\ See Analysis of Contribution Thresholds for Use in Clean 
Air Act Section 110(a)(2)(D)(i)(I) Interstate Transport State 
Implementation Plan Submissions for the 2015 Ozone National Ambient 
Air Quality Standards, August 31, 2018) (``August 2018 
memorandum''), and Considerations for Identifying Maintenance 
Receptors for Use in Clean Air Act Section 110(a)(2)(D)(i)(I) 
Interstate Transport State Implementation Plan Submissions for the 
2015 Ozone National Ambient Air Quality Standards, October 19, 2018, 
available in the docket for this action or at https://www.epa.gov/airmarkets/memo-and-supplemental-information-regarding-interstate-transport-sips-2015-ozone-naaqs.
---------------------------------------------------------------------------

    The March 2018 Memo describes the process and results of the 
updated photochemical and source-apportionment modeling used to project 
ambient ozone concentrations for the year 2023 and the state-by state 
impacts on those concentrations. The March 2018 Memo also explains that 
the selection of the 2023 analytic year aligns with the 2015 NAAQS 
attainment year for Moderate nonattainment areas. As described in more 
detail in the October 2017 and March 2018 memoranda, the EPA used the 
Comprehensive Air Quality Model with Extensions (CAMx version 6.40) to 
model average and maximum design values in 2023 to identify potential 
nonattainment and maintenance receptors (i.e., monitoring sites that 
are projected to have problems attaining or maintaining the 2015 ozone 
NAAQS). The March 2018 Memo presents design values calculated in two 
ways: first, following the EPA's historic ``3 x 3'' approach \14\ to 
evaluating all sites, and second, following a modified approach for 
coastal monitoring sites in which ``overwater'' modeling data were not 
included in the calculation of future year design values (referred to 
as the ``no water'' approach).
---------------------------------------------------------------------------

    \14\ See March 2018 Memo, at 4.
---------------------------------------------------------------------------

    For purposes of identifying potential nonattainment and maintenance 
receptors in 2023, the EPA applied the same approach used in the CSAPR 
Update, wherein the EPA considered a combination of monitoring data and 
modeling projections to identify monitoring sites that are projected to 
have problems attaining or maintaining the NAAQS. Specifically, the EPA 
identified nonattainment receptors as those monitoring sites with 
measured values \15\ exceeding the NAAQS that also have projected 
(i.e., in 2023) average design values exceeding the

[[Page 29887]]

NAAQS. The EPA identified maintenance receptors as those monitoring 
sites with projected maximum design values exceeding the NAAQS. This 
included sites with measured values below the NAAQS but with projected 
average and maximum design values exceeding the NAAQS, and monitoring 
sites with projected average design values below the NAAQS but with 
projected maximum design values exceeding the NAAQS. The EPA included 
the design values and monitoring data for all monitoring sites 
projected to be potential nonattainment or maintenance receptors based 
on the updated 2023 modeling in Attachment B to the March 2018 Memo.
---------------------------------------------------------------------------

    \15\ The EPA used 2016 ozone design values, based on 2014--2016 
measured data, which were the most current data at the time of the 
analysis. See attachment B of the March 2018 Memo, at B-1.
---------------------------------------------------------------------------

    After identifying potential downwind nonattainment and maintenance 
receptors, the EPA next performed nationwide, state-level ozone source-
apportionment modeling to estimate the expected impact from each state 
to each nonattainment and maintenance receptor.\16\ The EPA included 
contribution information resulting from the source-apportionment 
modeling in Attachment C to the March 2018 Memo. For more specific 
information on the modeling and analysis, please see the 2017 and March 
2018 memoranda, the NODA for the preliminary interstate transport 
assessment, and the supporting technical documents included in the 
docket for this action.
---------------------------------------------------------------------------

    \16\ As discussed in the March 2018 Memo, the EPA performed 
source-apportionment model runs for a modeling domain that covers 
the 48 contiguous United States and the District of Columbia, and 
adjacent portions of Canada and Mexico.
---------------------------------------------------------------------------

    In the CSAPR and the CSAPR Update, the EPA used a threshold of one 
percent of the NAAQS to determine whether a given upwind state was 
``linked'' at step 2 of the four-step framework and would therefore 
contribute to downwind nonattainment and maintenance sites identified 
in step 1. If a state's impact did not equal or exceed the one percent 
threshold, the upwind state was not ``linked'' to a downwind air 
quality problem, and the EPA therefore concluded the state will not 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS in the downwind states. However, if a state's impact 
equaled or exceeded the one percent threshold, the state's emissions 
were further evaluated in step 3, taking into account both air quality 
and cost considerations, to determine what, if any, emissions 
reductions might be necessary to address the good neighbor provision.
    As noted previously, on August 31, 2018, the EPA issued a 
memorandum (August 2018 Memo) providing guidance concerning potential 
contribution thresholds that may be appropriate to apply with respect 
to the 2015 NAAQS in step 2. Consistent with the process for selecting 
the one percent threshold in CSAPR and the CSAPR Update, the August 
2018 Memo included analytical information regarding the degree to which 
potential air quality thresholds would capture the collective amount of 
upwind contribution from upwind states to downwind receptors for the 
2015 ozone NAAQS. The August 2018 Memo indicated that, based on the 
EPA's analysis of its most recent modeling data, the amount of upwind 
collective contribution captured using a 1 ppb threshold is generally 
comparable, overall, to the amount captured using a threshold 
equivalent to one percent of the 2015 ozone NAAQS. Accordingly, the EPA 
indicated that it may be reasonable and appropriate for states to use a 
1 ppb contribution threshold, as an alternative to the one percent 
threshold, at step 2 of the four-step framework in developing their SIP 
revisions addressing the good neighbor provision for the 2015 ozone 
NAAQS.\17\
---------------------------------------------------------------------------

    \17\ See August 2018 Memo, at 4.
---------------------------------------------------------------------------

    While the March 2018 Memo presented information regarding the EPA's 
latest analysis of ozone transport following the approaches the EPA has 
taken in prior regional rulemaking actions, the EPA has not made any 
final determinations regarding how states should identify downwind 
receptors with respect to the 2015 ozone NAAQS at step 1 of the four-
step framework. Rather, the EPA noted that states have flexibility in 
developing their own SIPs to follow different analytical approaches 
than the EPA's, so long as their chosen approach has an adequate 
technical justification and is consistent with the requirements of the 
CAA.
    The prong 3 (PSD) requirement of CAA section 110(a)(2)(D)(II) may 
be met for all NAAQS 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).\18\
---------------------------------------------------------------------------

    \18\ See 2013 Memo.
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    To meet the prong 4 (visibility) requirement of CAA section 
110(a)(2)(D)(i)(II) under the 2015 ozone NAAQS, a SIP must address the 
potential for interference with visibility protection caused by ozone, 
including precursors. 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).\19\
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    \19\ 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).
---------------------------------------------------------------------------

    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). CAA section 126 requires notification to neighboring states 
of potential impacts from a new or modified major stationary source and 
specifies how a state may petition the EPA when a major source or group 
of stationary sources in a state is thought to contribute to certain 
pollution problems in another state. CAA section 115 governs the 
process for addressing air pollutants emitted in the United States that 
cause or contribute to air pollution that may reasonably be anticipated 
to endanger public health or welfare in a foreign country.
    (i) State's submission:
    South Dakota's January 15, 2020 submission includes an interstate 
transport analysis for prongs 1 and 2 that focused on the modeling 
information provided in the EPA's March 2018 Memo. South Dakota 
concludes that the modeling results from the March 2018 Memo indicate 
that South Dakota sources do not contribute significantly to 
nonattainment or interfere with maintenance of the 2015 ozone NAAQS in 
any other state.
    To address prong 3, South Dakota references the PSD program in ARSD 
Chapters 74:36:09 and 74:36:20 of the South Dakota SIP, which the State 
asserts meets all federal requirements and applies to all regulated 
pollutants. South Dakota's submission states that it requires new 
sources or modifications to existing sources to apply for and obtain an 
air quality permit before constructing, and the State reviews the 
application to ensure that the new source or modification will not 
cause a NAAQS exceedance.
    To address prong 4, South Dakota references its EPA-approved 
Regional Haze SIP to demonstrate that the State does not interfere with 
visibility for the

[[Page 29888]]

2015 ozone NAAQS in any other state (77 FR 24845, April 26, 2012).
    To address CAA section 110(a)(2)(D)(ii), South Dakota states that 
there are no findings against the State under CAA sections 115 or 126 
with respect to any pollutant. South Dakota also states that its 
approved PSD program requires the State to provide written notification 
to all nearby states and tribes treated as states of the potential 
impacts from major new sources or major modifications of existing 
sources, satisfying CAA section 126(a). For these reasons, South Dakota 
asserts that its SIP meets the requirements of CAA section 
110(a)(2)(D)(ii) for the 2015 ozone NAAQS.
    (ii) The EPA's Analysis:
Prongs 1 and 2: Significant Contribution to Nonattainment and 
Interference With Maintenance
    The EPA is proposing to rely on the 2023 modeling data identifying 
downwind receptors and upwind state contributions, as released in the 
March 2018 memorandum, to evaluate South Dakota's good neighbor 
obligation with respect to the 2015 ozone NAAQS. On September 13, 2019, 
the D.C. Circuit issued its decision in Wisconsin v. EPA addressing 
legal challenges to the CSAPR Update, in which the EPA partially 
addressed certain upwind states' good neighbor obligations for the 2008 
ozone NAAQS. 938 F.3d 303. While the court generally upheld the rule as 
to most of the challenges raised in the litigation, the court remanded 
the CSAPR Update to the extent it failed to require upwind states to 
eliminate their significant contributions in accordance with the 
attainment dates found in CAA section 181 by which downwind states must 
come into compliance with the NAAQS. Id. at 313. In light of the 
court's decision, the EPA is providing further explanation regarding 
why it proposes to find that it is appropriate and consistent with the 
statute--as well as the legal precedent--to use the 2023 analytic year 
for assessing good neighbor obligations for the 2015 ozone NAAQS.
    The EPA believes that 2023 is an appropriate year for analysis of 
good neighbor obligations for the 2015 ozone NAAQS because the 2023 
ozone season is the last relevant ozone season during which achieved 
emissions reductions in linked upwind states could assist downwind 
states with meeting the August 3, 2024 Moderate area attainment date 
for the 2015 ozone NAAQS. The EPA recognizes that the attainment date 
for nonattainment areas classified as Marginal for the 2015 ozone NAAQS 
is August 3, 2021, which currently applies in several downwind 
nonattainment areas evaluated in the EPA's modeling.\20\ However, as 
explained below, the EPA does not believe that either the statute or 
applicable case law requires the evaluation of good neighbor 
obligations in a future year aligned with the attainment date for 
nonattainment areas classified as Marginal.
---------------------------------------------------------------------------

    \20\ The Marginal area attainment date is not applicable for 
nonattainment areas already classified as Moderate or higher, such 
as the New York Metropolitan Area. For the status of all 
nonattainment areas under the 2015 ozone NAAQS, see U.S. EPA, 8-Hour 
Ozone (2015) Designated Area/State Information, https://www3.epa.gov/airquality/greenbook/jbtc.html (last updated Sept. 30, 
2019).
---------------------------------------------------------------------------

    The good neighbor provision instructs the EPA and states to apply 
its requirements ``consistent with the provisions of'' title I of the 
CAA. CAA section 110(a)(2)(D)(i); see also North Carolina v. EPA, 531 
F.3d 896, 911-12 (DC Cir. 2008). This consistency instruction follows 
the requirement that plans ``contain adequate provisions prohibiting'' 
certain emissions in the good neighbor provision. As the D.C. Circuit 
held in North Carolina, and more recently in Wisconsin, the good 
neighbor provision must be applied in a manner consistent with the 
designation and planning requirements in title I that apply in downwind 
states and, in particular, the timeframe within which downwind states 
are required to implement specific emissions control measures in 
nonattainment areas and submit plans demonstrating how those areas will 
attain, relative to the applicable attainment dates. See North 
Carolina, 896 F.3d at 912 (holding that the good neighbor provision's 
reference to title I requires consideration of both procedural and 
substantive provisions in title I); Wisconsin, 938 F.3d at 313-18.
    While the EPA recognizes, as the court held in North Carolina and 
Wisconsin, that upwind emissions-reduction obligations therefore must 
generally be aligned with downwind receptors' attainment dates, unique 
features of the statutory requirements associated with the Marginal 
area planning requirements and attainment date under CAA section 182 
lead the EPA to conclude that it is more reasonable and appropriate to 
require the alignment of upwind good neighbor obligations with later 
attainment dates applicable for Moderate or higher classifications. 
Under the Clean Air Act, states with areas designated nonattainment are 
generally required to submit, as part of their state implementation 
plan, an ``attainment demonstration'' that shows, usually through air 
quality modeling, how an area will attain the NAAQS by the applicable 
attainment date. See CAA section 172(c)(1).\21\ Such plans must also 
include, among other things, the adoption of all ``reasonably 
available'' control measures on existing sources, a demonstration of 
``reasonable further progress'' toward attainment, and contingency 
measures, which are specific controls that will take effect if the area 
fails to attain by its attainment date or fails to make reasonable 
further progress toward attainment. See, e.g., CAA section 172(c)(1); 
172(c)(2); 172(c)(9). Ozone nonattainment areas classified as Marginal 
are excepted from these general requirements under the CAA--unlike 
other areas designated nonattainment under the Act (including for other 
NAAQS pollutants), Marginal ozone nonattainment areas are specifically 
exempted from submitting an attainment demonstration and are not 
required to implement any specific emissions controls at existing 
sources in order to meet the planning requirements applicable to such 
areas. See CAA section 182(a) (``The requirements of this subsection 
shall apply in lieu of any requirement that the State submit a 
demonstration that the applicable implementation plan provides for 
attainment of the ozone standard by the applicable attainment date in 
any Marginal Area.'') \22\ Marginal ozone nonattainment areas are also 
exempted from demonstrating reasonable further progress towards 
attainment and submitting contingency measures. See CAA section 182(a) 
(does not include a reasonable further progress requirement and 
specifically notes that ``Section [172(c)(9)] of this title (relating 
to contingency measures) shall not apply to Marginal Areas'').
---------------------------------------------------------------------------

    \21\ Part D of title I of the Clean Air Act provides the plan 
requirements for all nonattainment areas. Subpart 1, which includes 
section 172(c), applies to all nonattainment areas. Congress 
provided in subparts 2-5 additional requirements specific to the 
various NAAQS pollutants that nonattainment areas must meet.
    \22\ States with Marginal nonattainment areas are required to 
implement new source review permitting for new and modified sources, 
but the purpose of those requirements is to ensure that potential 
emissions increases do not interfere with progress towards 
attainment, as opposed to reducing existing emissions. Moreover, the 
EPA acknowledges that states within ozone transport regions must 
implement certain emission control measures at existing sources in 
accordance with CAA section 184, but those requirements apply 
regardless of the applicable area designation or classification.
---------------------------------------------------------------------------

    Existing regulations--either local, state, or federal--are 
typically a part of the reason why ``additional'' local

[[Page 29889]]

controls are not needed to bring Marginal nonattainment areas into 
attainment. As described in the EPA's record for its final rule 
defining area classifications for the 2015 ozone NAAQS and establishing 
associated attainment dates, history has shown that the majority of 
areas classified as Marginal for prior ozone standards attained the 
respective standards by the Marginal area attainment date (i.e., 
without being re-classified to a Moderate designation). 83 FR 10376. As 
part of a historical lookback, the EPA calculated that by the relevant 
attainment date for areas classified as Marginal, 85 percent of such 
areas attained the 1979 1-hour ozone NAAQS, and 64 percent attained the 
2008 ozone NAAQS. See Response to Comments, section A.2.4.\23\ Based on 
these historical data, the EPA expects that many areas classified 
Marginal for the 2015 ozone NAAQS will also attain by the relevant 
attainment date as a result of emissions reductions that are already 
expected to occur through implementation of existing local, state and 
federal emissions reduction programs. To the extent states have 
concerns about meeting their attainment date for a Marginal area, the 
CAA under section 181(b)(3) provides authority for them to voluntarily 
request a higher classification for individual areas, if needed.
---------------------------------------------------------------------------

    \23\ Available at https://www.regulations.gov/document?D=EPA-HQ-OAR-2016-0202-0122.
---------------------------------------------------------------------------

    Areas that are classified as Moderate typically have more 
pronounced air quality problems than Marginal areas or have been unable 
to attain the NAAQS under the minimal requirements that apply to 
Marginal areas. See CAA sections 181(a)(1) (classifying areas based on 
the degree of nonattainment relative to the NAAQS) and (b)(2) 
(providing for reclassification to the next highest designation upon 
failure to attain the standard by the attainment date). Thus, unlike 
Marginal areas, the statute explicitly requires a state with an ozone 
nonattainment area classified as Moderate or higher to develop an 
attainment plan demonstrating how the state will address the more 
significant air quality problem, which generally requires the 
application of various control measures to existing sources of 
emissions located in the nonattainment area. See generally CAA sections 
172(c) and 182(b)-(e).
    Given that downwind states are not required to demonstrate 
attainment by the attainment date or impose additional controls on 
existing sources in a Marginal nonattainment area, the EPA believes 
that it would be inconsistent to interpret the good neighbor provision 
as requiring the EPA to evaluate the necessity for upwind state 
emissions reductions based on air quality modeled in a future year 
aligned with the Marginal area attainment date. Rather, the EPA 
believes it is more appropriate and consistent with the nonattainment 
planning provisions in title I to evaluate downwind air quality and 
upwind state contributions, and, therefore, the necessity for upwind 
state emissions reductions, in a year aligned with an area 
classification in connection with which downwind states are also 
required to demonstrate attainment and implement controls on existing 
sources--i.e., with the Moderate area attainment date, rather than the 
Marginal area date. With respect to the 2015 ozone NAAQS, the Moderate 
area attainment date will be in the summer of 2024, and the last full 
year of monitored ozone-season data that will inform attainment 
demonstrations is, therefore, 2023.
    The EPA's interpretation of the good neighbor requirements in 
relation to the Marginal area attainment date is consistent with the 
Wisconsin opinion. For the reasons explained below, the court's holding 
does not contradict the EPA's view that 2023 is an appropriate analytic 
year in evaluating good neighbor SIPs for the 2015 ozone NAAQS. The 
court in Wisconsin was concerned that allowing upwind emission 
reductions to be implemented after the applicable attainment date would 
require downwind states to obtain more emissions reductions than the 
Act requires of them, to make up for the absence of sufficient 
emissions reductions from upwind states. See 938 F.3d at 316. As 
discussed previously, however, this equitable concern only arises for 
nonattainment areas classified as Moderate or higher for which downwind 
states are required by the CAA to develop attainment plans securing 
reductions from existing sources and demonstrating how such areas will 
attain by the attainment date. See, e.g., CAA section 182(b)(1) & (2) 
(establishing ``reasonable further progress'' and ``reasonably 
available control technology'' requirements for Moderate nonattainment 
areas). Ozone nonattainment areas classified as Marginal are not 
required to meet these same planning requirements, and thus the 
equitable concerns raised by the Wisconsin court do not arise with 
respect to downwind areas subject to the Marginal area attainment date.
    The distinction between planning obligations for Marginal 
nonattainment areas and higher classifications was not before the court 
in Wisconsin. Rather, the court was considering whether the EPA, in 
implementing its obligation to promulgate federal implementation plans 
under CAA section 110(c), was required to fully resolve good neighbor 
obligations by the 2018 Moderate area attainment date for the 2008 
ozone NAAQS. See 938 F.3d at 312-13. Although the court noted that 
petitioners had not ``forfeited'' an argument with respect to the 
Marginal area attainment date, see id. at 314, the court did not 
address whether its holding with respect to the 2018 Moderate area date 
would have applied with equal force to the Marginal area attainment 
date because that date had already passed. Thus, the court did not have 
the opportunity to consider these differential planning obligations in 
reaching its decision regarding the EPA's obligations relative to the 
then-applicable 2018 Moderate area attainment date because such 
considerations were not applicable to the case before the court.\24\ 
For the reasons discussed here, the equitable concerns supporting the 
Wisconsin court's holding as to upwind state obligations relative to 
the Moderate area attainment date also support the EPA's interpretation 
of the good neighbor provision relative to the Marginal area attainment 
date. Thus, the EPA proposes to conclude that its reliance on an 
evaluation of air quality in the 2023 analytical year for purposes of 
assessing good neighbor obligations with respect to the 2015 ozone 
NAAQS is based on a reasonable interpretation of the CAA and legal 
precedent.
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    \24\ The D.C. Circuit, in a short judgment, subsequently vacated 
and remanded the EPA's action purporting to fully resolve good 
neighbor obligations for certain states for the 2008 ozone NAAQS, 
referred to as the CSAPR Close-Out, 83 FR 65878 (Dec. 21, 2018). New 
York v. EPA, No. 19-1019 (Oct. 1, 2019). That result necessarily 
followed from the Wisconsin decision, because as the EPA conceded, 
the Close-Out ``relied upon the same statutory interpretation of the 
Good Neighbor Provision'' rejected in Wisconsin. Id. slip op. at 3. 
In the Close-Out, the EPA had analyzed the year 2023, which was two 
years after the Serious area attainment date for the 2008 ozone 
NAAQS and not aligned with any attainment date for that NAAQS. Id. 
at 2. In New York, as in Wisconsin, the court was not faced with 
addressing specific issues associated with the unique planning 
requirements associated with the Marginal area attainment date.
---------------------------------------------------------------------------

    As previously discussed, the March 2018 memorandum identifies 
potential downwind nonattainment and maintenance receptors, using the 
definitions applied in the CSAPR Update and using both the ``3 x 3'' 
and the ``no water'' approaches to calculating future year design 
values. The March 2018 memorandum identifies 57 potential nonattainment 
and maintenance receptors in the West

[[Page 29890]]

in Arizona (2), California (49), and Colorado (6).\25\ The March 2018 
memorandum also provides contribution data regarding the impact of 
other states on the potential receptors. For purposes of evaluating 
South Dakota's 2015 ozone NAAQS interstate transport SIP submission, we 
propose that, at least where a state's impacts are less than one 
percent to downwind nonattainment and maintenance sites, it is 
reasonable to conclude that the State's impact will not significantly 
contribute to nonattainment or interfere with maintenance of the NAAQS 
in any other state. This is consistent with our prior action on South 
Dakota's SIP with respect to the 2008 ozone NAAQS \26\ and with the 
EPA's approach to both the 1997 and 2008 ozone NAAQS in CSAPR and the 
CSAPR Update. The EPA notes, nonetheless, that consistent with the 
August 2018 memorandum, it may be reasonable and appropriate for states 
to use a 1 ppb contribution threshold, as an alternative to a one 
percent threshold, at step 2 of the four-step framework in developing 
their SIP revisions addressing the good neighbor provision for the 2015 
ozone NAAQS. However, for the reasons discussed below, it is 
unnecessary for the EPA to determine whether it may be appropriate to 
apply a 1 ppb threshold for purposes of this action.
---------------------------------------------------------------------------

    \25\ The number of receptors in the identified western states is 
57, irrespective of whether the ``3 x 3'' or ``no water'' approach 
is used. Further, although the EPA has indicated that states may 
have flexibilities to apply a different analytic approach to 
evaluating interstate transport, including identifying downwind air 
quality problems, because the EPA is also concluding in this 
proposed action that Oregon will have an insignificant impact on any 
potential receptors identified in its analysis, Oregon need not 
definitively determine whether the identified monitoring sites 
should be treated as receptors for the 2015 ozone standard.
    \26\ 81 FR 7706, February 16, 2016.
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    The EPA's updated 2023 modeling discussed in the March 2018 
memorandum indicates that South Dakota's largest impact on any 
potential downwind nonattainment and maintenance receptor are 0.07 ppb 
and 0.05 ppb, respectively.\27\ These values are less than 0.70 ppb 
(one percent of the 2015 ozone NAAQS),\28\ and as a result, demonstrate 
that emissions from South Dakota are not linked to any 2023 downwind 
potential nonattainment and maintenance receptors identified in the 
March 2018 memorandum. Accordingly, we propose to conclude that 
emissions from South Dakota will not contribute to any potential 
receptors, and thus, the state will not significantly contribute to 
nonattainment or interfere with maintenance of the NAAQS in any other 
state.
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    \27\ The EPA's analysis indicates that South Dakota will have a 
0.07 ppb impact at the potential nonattainment receptor in Tarrant 
County, Texas (Site ID 484392003), which has a 2023 projected 
average design value of 72.5 ppb, and a 2023 projected maximum 
design value of 74.8 ppb. The EPA's analysis further indicates that 
South Dakota will have a 0.05 ppb impact at potential maintenance 
receptors in Allegan, Michigan (Site ID 260050003) and Queens, New 
York (Site ID 360810124), which both had projected 2023 average 
design values below the 2015 ozone NAAQS (69.0 and 70.2 ppb, 
respectively), and 2023 projected maximum design values above the 
NAAQS (71.7 and 72.0 ppb, respectively). See the March 2018 
memorandum, attachment C.
    \28\ Because none of South Dakota's impacts equal or exceed 0.70 
ppb, they necessarily also do not equal or exceed the 1 ppb 
contribution threshold discussed in the August 2018 memorandum.
---------------------------------------------------------------------------

    We also note that the EPA has assessed potential transport to the 
Shoshone-Bannock Tribes of the Fort Hall Reservation in southeast 
Idaho, which the EPA approved to be treated as an affected downwind 
state for CAA sections 110(a)(2)(D) and 126. While the Shoshone-Bannock 
Tribes do not operate an ozone monitor, the nearest ozone monitors to 
the Fort Hall Reservation are in Ada County, Idaho, in the Boise area 
and in Butte County, Idaho, in the Idaho Falls area. As discussed 
previously, the EPA's modeling did not identify receptors in Idaho and 
the ozone monitoring sites nearest to the Fort Hall Reservation were 
projected to remain below the current standard. For the Idaho Falls 
area monitoring site (Site ID 160230101), which had a 2014-2016 design 
value of 60 ppb, the EPA's modeling projects a 2023 maximum design 
value of 60.2 ppb and a 2023 average design value of 59.6 ppb, both 
below the 70 ppb standard. For the Boise area monitoring site with the 
highest projected ozone concentrations (Site ID 160010017), which had a 
2014-2016 design value of 67 ppb, the EPA's modeling projects a 2023 
maximum design value of 59.8 ppb and a 2023 average design value of 
59.4 ppb.\29\ We therefore, propose to find that emissions from South 
Dakota will not significantly contribute to nonattainment or interfere 
with maintenance of the 2015 ozone NAAQS at the Fort Hall Reservation.
---------------------------------------------------------------------------

    \29\ In attachment A of the October 2017 Memo, the EPA provided 
the projected ozone design values at individual monitoring sites 
nationwide. The data for the Idaho monitors is presented on page A-
10.
---------------------------------------------------------------------------

    On December 5, 2019, the EPA took final action finding that seven 
states, including South Dakota, had failed to submit a complete SIP to 
satisfy prongs 1 and 2 for the 2015 ozone NAAQS (84 FR 66612). This 
action established a 2-year deadline for EPA to promulgate Federal 
Implementation Plans (FIPs) for these states to address interstate 
transport of ozone, unless a state submits, and the EPA approves a SIP 
addressing these requirements before the EPA promulgates its FIP. South 
Dakota submitted the January 15, 2020 infrastructure SIP with the 
intention of correcting the issues giving rise to the EPA's December 5, 
2019 incompleteness finding. Should the EPA finalize this action as 
proposed, the relevant obligations will be addressed, and we will no 
longer have a FIP deadline for prongs 1 and 2 of South Dakota's 2015 
ozone infrastructure SIP.
Prong 3: Interference With PSD Measures
    As noted, the PSD portion of section 110(a)(2)(D)(i)(II) 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).\30\ As noted in 
Section III.(c)(ii) of this proposed action, South Dakota has such a 
program, and the EPA is therefore proposing to approve South Dakota's 
SIP for the 2015 ozone 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.
---------------------------------------------------------------------------

    \30\ See September 2013 Guidance at 31.
---------------------------------------------------------------------------

    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 
2015 ozone NAAQS.
Prong 4: Interference With Measures To Protect Visibility
    In our prong 4 review, the EPA primarily reviewed South Dakota's 
regional haze SIP. South Dakota submitted a regional haze SIP to the 
EPA on September 19, 2011. The EPA approved South Dakota's regional 
haze

[[Page 29891]]

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 2015 ozone 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 this 
NAAQS.
110(a)(2)(D)(ii): Interstate and International Transport Provisions
    Regarding CAA section 110(a)(2)(D)(ii), South Dakota's SIP approved 
PSD program requires notice to states whose lands may be affected by 
the emissions of sources subject to PSD, as required by 40 CFR 
51.166(q)(2)(iv).\31\ This suffices to meet the notice requirement of 
section 126(a). South Dakota also has no pending obligations under 
sections 126(c) or 115(b). Therefore, the South Dakota SIP currently 
meets the requirements of those sections. In summary, the South Dakota 
SIP satisfies the requirements of CAA section 110(a)(2)(D)(ii) for the 
2015 ozone NAAQS.
---------------------------------------------------------------------------

    \31\ See ARSD 74:36:09:03.
---------------------------------------------------------------------------

E. CAA Section 110(a)(2)(E): 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) 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.''
    (i) The State's submission:
Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal 
Authority Under State Law To Carry Out Its SIP, and Related Issues
    SDCL, specifically 34A-1-4, and 34A-1-7 through 34A-1-10, provide 
adequate authority for the State of South Dakota to carry out its SIP 
obligations with respect to the 2015 ozone NAQQS. Additionally, SDCL 
sections 34A-1-4, 34A-1-5, 34A-1-10(1), 34A-1-59 and 1-40-30, the 
State's agreements on EPA 103 and 105 grants and associated matching 
funds, also provide necessary funding to the State to carry out its 
SIP. Finally, SDCL 34A-1 provides South Dakota with the legal authority 
to carry out its SIP and related issues.
    (ii) EPA's analysis:
    The regulations cited by South Dakota in their certification and 
contained within this docket 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)(E)(i) and (E)(iii) 
for the 2015 ozone NAAQS.
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. 
Section 128 requires SIPs to contain 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.\32\
---------------------------------------------------------------------------

    \32\ EPA's proposed rule document (79 FR 71040, Dec. 1, 2014) 
includes a discussion of the legislative history of CAA section 128.
---------------------------------------------------------------------------

    (i) The State's submission:
    In its January 15, 2020 submission, South Dakota references SDCL 1-
40-25 and 1-40-25.1 in regard to section110(a)(2)(E)(ii). SDCL 1-40-25 
and 1-40-25.1 specify the board's composition and that it must comply 
with section 128 of the CAA.
    (ii) EPA's analysis:
    Details on how this portion of the SDCL meet the requirements of 
section 128 are provided in our December 1, 2014 proposal document (79 
FR 71040). In our January 29, 2015 action (80 FR 4799), we 
correspondingly approved South Dakota's infrastructure SIP for the 2008 
ozone 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 
South Dakota's infrastructure SIP for the 2015 ozone NAAQS for this 
element.

F. CAA Section 110(a)(2)(F): Stationary Source Monitoring System

    Section 110(a)(2)(F) requires the SIP to require, as may be 
prescribed by the EPA: (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.
    (i) The State's submission:
    The South Dakota statutory provisions listed in the State's 
certification (SDCL 34A-1-6 and SDCL 34A-1-12) 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, 
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.
    (ii) The EPA's analysis:
    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

[[Page 29892]]

AERR shortened the time states had to report emissions data from 17 to 
12 months, giving states one calendar year to submit emissions data. 
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 (EIS). 
States report emissions data for six criteria pollutants and their 
associated precursors--nitrogen oxide (NOX), sulfur dioxide 
(SO2), ammonia, Pb, carbon monoxide (CO), PM, and volatile 
organic compounds (VOCs). South Dakota made its latest update to the 
NEI on October 22, 2018. The EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through the website 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 2015 ozone NAAQS.

G. CAA Section 110(a)(2)(G): Emergency Powers

    Section 110(a)(2)(G) of the CAA requires infrastructure SIPs to 
``provide for authority comparable to that in [CAA Section 303] and 
adequate contingency plans to implement such authority.''
    Under CAA section 303, the Administrator has authority 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.
    (i) The State's submission:
    South Dakota's SIP submittals with regard to the section 
110(a)(2)(G) emergency order requirements explain that SDCL section 
34A-1-45 (Emergency order for immediate reduction or discontinuance of 
emissions) is comparable to Section 303 of the Clean Air Act and 
provides that ``if the Secretary of the Department of Environment and 
Natural Resources finds that any person is causing or contributing to 
air pollution and that such pollution creates an emergency by causing 
imminent danger to human health or safety and requires immediate action 
to protect human health or safety, the Secretary shall order such 
person or persons to reduce or discontinue immediately the emissions of 
air contaminants. '' Accordingly, we have reviewed South Dakota's 
statutory provisions for evidence that the State has authorities 
comparable to those in section 303. Our review included the provision 
discussed above, as well as provisions in the current SDCL.
    South Dakota air pollution emergency episode rule 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 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 51.151 and appendix L to part 51.
    (ii) The EPA's analysis:
    While no single South Dakota statute mirrors the authorities of CAA 
section 303, we propose to find that the combination of SDCL and ARSD 
provisions discussed above provide for authority comparable to section 
303 to immediately bring suit to restrain, issue emergency executive 
orders against, and use special rule adoption and suspension procedures 
for applicable emergencies to take prompt administrative action 
against, any person causing or contributing to air pollution that 
presents an imminent and substantial endangerment to public health or 
welfare, or the environment. Consistent with EPA's 2013 Infrastructure 
SIP Guidance, the narratives provided in South Dakota's SIP submittals 
about the State's authorities applying to emergency episodes (as 
discussed above), plus additional South Dakota statutes that we have 
considered, we propose that they are sufficient to meet the authority 
requirement of CAA section 110(a)(2)(G). 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 2015 ozone NAAQS.

H. CAA Section 110(a)(2)(H): Future SIP Revisions

    Section 110(a)(2)(H) requires that SIPs provide for revision of 
such plan: (i) From time to time as may be necessary to take account of 
revisions of such national primary or secondary ambient air quality 
standard or the availability of improved or more expeditious methods of 
attaining such standard; and (ii), except as provided in paragraph 
(3)(C), whenever the Administrator finds on the basis of information 
available to the Administrator that the SIP is substantially inadequate 
to attain the NAAQS which it implements or to otherwise comply with any 
additional requirements under this [Act].
    (i) The State's submission:
    The South Dakota submission refers to SDCL Section 34A-1-6 provides 
DENR with the authority to revise the State's SIP to meet all federal 
requirements and to revise the SIP whenever necessary or appropriate, 
such as changes to the NAAQS or in response to the EPA finding the 
State's SIP to be inadequate.
    (ii) The EPA's analysis:
    SDCL Section 34A-1-6 directs DENR to promulgate a comprehensive SIP 
that meets all federal requirements and to revise the SIP whenever 
necessary or appropriate. Therefore, we propose to approve South 
Dakota's SIP as meeting the requirements of CAA section 110(a)(2)(H).

I. CAA Section 110(a)(2)(I): Nonattainment Area Plan Revision Under 
Part D

    There are two elements identified in CAA section 110(a)(2) not 
governed by the three-year submission deadline of CAA section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area controls 
are due on nonattainment area plan schedules pursuant to section 172 
and the various pollutant-specific subparts 2 through 5 of part D. 
These are submissions required by: (i) CAA section 110(a)(2)(C) to the 
extent that subsection refers to a permit program as required in part 
D, Title I of the CAA; and (ii) section 110(a)(2)(I) which pertain to 
the nonattainment planning requirements of part D, Title I of the CAA. 
As a result, this action does not address CAA section 110(a)(2)(C) with 
respect to NNSR or CAA section 110(a)(2)(I).

J. CAA Section 110(a)(2)(J): Consultation With Government Officials, 
Public Notification, PSD and Visibility Protection

    CAA section 110(a)(2)(J) requires states to provide a process for 
consultation with local governments and FLMs pursuant to CAA section 
121. CAA section 110(a)(2)(J) further requires states to notify the 
public if NAAQS are exceeded in an area and to enhance public awareness 
of measures that can be taken to prevent exceedances pursuant to CAA 
section 127. Lastly, CAA section 110(a)(2)(J) requires states to meet 
applicable requirements of part C, Title I of the CAA related to

[[Page 29893]]

prevention of significant deterioration and visibility protection.
    (i) The State's submission:
    The South Dakota submission references the following laws and 
regulations relating to consultation with identified officials on 
certain air agency actions; public notification; PSD; and visibility 
protection:
     SDCL section 34A-1-1;
     SDCL section 34A-1-9;
     SDCL section 34A-1-10; and
     SDCL section 1-40-31.
    (ii) The EPA's analysis:
    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 SIP applies, consistent with the requirements of CAA section 121.
    Furthermore, EPA previously addressed the requirements of CAA 
section 127 for the South Dakota SIP and determined public notification 
requirements are appropriate (45 FR 58528, Sept. 4, 1980). As discussed 
above, the State has a SIP-approved PSD program that incorporates by 
reference the federal program at 40 CFR 52.21. EPA has further 
evaluated South Dakota's SIP approved PSD program in this proposed 
action under element (C) and determined the State has satisfied the 
requirements of element 110(a)(2)(C), as noted above. Therefore, the 
State has also satisfied the requirements of element 110(a)(2)(J).
    Finally, with regard to the applicable requirements for visibility 
protection, 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.
    Addressing the requirement in CAA section 110(a)(2)(J) that the SIP 
meet the applicable requirements of part C, Title I of the CAA, we have 
evaluated this requirement in the context of CAA section 110(a)(2)(C). 
The EPA most recently approved revisions to South Dakota's PSD program 
on May 3, 2019 (84 FR 18991), updating the program for current Federal 
requirements. Therefore, we are proposing to approve the South Dakota 
SIP as meeting the requirements of CAA 110(a)(2)(J) with respect to PSD 
for the 2015 ozone NAAQS.
    The State has demonstrated it has the authority and rules in place 
through its certification (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 SIP applies, consistent with the requirements of CAA section 121. 
Furthermore, EPA previously addressed the requirements of CAA section 
127 for the South Dakota SIP and determined public notification 
requirements are appropriate (45 FR 58528, Sept. 4, 1980).
    Based on the above analysis, we are proposing to approve the South 
Dakota SIP as meeting the requirements of CAA section 110(a)(2)(J) for 
the 2015 ozone NAAQS.

K. CAA Section 110(a)(2)(K): Air Quality and Modeling/Data

    CAA section 110(a)(2)(K) requires that SIPs provide for (i) the 
performance of 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.
    The EPA's requirements for air quality modeling for criteria 
pollutants are found in 40 CFR part 51, appendix W, Guideline on Air 
Quality Models. On January 17, 2017 (82 FR 5182), the EPA revised 
appendix W, effective February 16, 2017. The Federal Register document 
stated: ``For all regulatory applications covered under the Guideline, 
except for transportation conformity, the changes to the appendix A 
preferred models and revisions to the requirements and recommendations 
of the Guideline must be integrated into the regulatory processes of 
respective reviewing authorities and followed by applicants by no later 
than January 17, 2018.''
    (i) The State's submission:
    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.
    In its submission, the State references SDLC section 34A-1-1, 34A-
1-10, and 1-40-31 and that they provide the DENR with the authority to 
advise, consult, and cooperate with EPA and provide 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.
    (ii) The EPA's analysis:
    Based on the above information, we are proposing to approve the 
South Dakota SIP as meeting the requirements of CAA section 
110(a)(2)(K) for the 2015 ozone NAAQS.

L. CAA Section 110(a)(2)(L): Permitting Fees

    CAA section 110(a)(2)(L) directs SIPs to require each major 
stationary source to pay permitting fees to cover the cost of 
reviewing, approving, implementing and enforcing a permit.
    (i) State's submission:
    The South Dakota submission refers to ARSD 74:37:01--Air Emission 
Fees; which requires owners or operators of major stationary sources to 
pay permitting fees to cover the cost of reviewing, approving, 
implementing and enforcing Title V air quality operating permits.
    (ii) The EPA's analysis:
    The EPA-approved ARSD 74:37:01 adequately addresses requirements in 
CAA section 110(a)(2)(L) regarding construction (i.e. NSR) permits. 
With respect to title V permits, on February 28, 1996 the EPA fully 
approved South Dakota's part 70 title V operating permit program (61 FR 
2720). The fully approved South Dakota title V program and South 
Dakota's ARSD 74:37:01 demonstrate that fees will be adequate to fund 
the title V and NSR programs, and that the State will collect fees in 
accordance with 40 CFR 70.9(b)(2)(i). Therefore, we are proposing that 
South Dakota has satisfied the requirements of CAA section 110(a)(2)(L) 
for the 2015 ozone NAAQS.

M. CAA Section 110(a)(2)(M): Consultation/Participation by Affected 
Local Entities

    CAA section 110(a)(2)(M) requires states to provide for 
consultation and participation in SIP development by local political 
subdivisions affected by the SIP.
    (i) State's submission:
    South Dakota refers to the following rules and regulations, which 
require and provide authority for public hearings, notice of hearings, 
public comment periods, and the consultation and coordination between 
state and local governments:
     SDCL section 34A-1-1; and
     SDCL section 34A-1-10.

[[Page 29894]]

    (ii) The EPA's analysis:
    The rules and regulations cited by South Dakota provide for the 
consultation and participation by local political subdivisions affected 
by the SIP; therefore, we are proposing to approve the South Dakota SIP 
as meeting the requirements of CAA section 110(a)(2)(M) for the 2015 
ozone NAAQS.

N. Revisions to South Dakota Air Pollution Control Rules

    On January 3, 2020 the EPA received revisions for the ARSD for the 
State of South Dakota. In this document, the EPA is proposing to 
approve the ARSD rule revisions that update the date of incorporation 
by reference of federal rules to July 1, 2018. The submittal was signed 
by the Governor and received a 30-day public comment period starting on 
November 26, 2019 (no requests were made for a public hearing). The EPA 
is proposing to approve all of the revisions to the ARSD for the State 
of South Dakota submitted by the State on January 3, 2020 in this 
action.

IV. Proposed Action

    In this action, the EPA is proposing to approve South Dakota's 
January 15, 2020 submission for all CAA section 110(a)(2) 
infrastructure elements for the 2015 ozone NAAQS. Additionally, the EPA 
is proposing to approve the incorporation by reference revisions to the 
ARSD submitted by the State of South Dakota on January 3, 2020.
    In the table below, the key is as follows:
    A--Approve.
    D--Disapprove.

  Table 1--Infrastructure Elements That the EPA Is Proposing To Act on
------------------------------------------------------------------------
 2015 Ozone NAAQS Infrastructure SIP Elements and Revisions
     to the Administrative Rules of South Dakota (ARSD)
------------------------------------------------------------------------
(A): Emission Limits and Other Control Measures.............          A
(B): Ambient Air Quality Monitoring/Data System.............          A
(C): Program for Enforcement of Control Measures............          A
(D)(i)(I): Prong 1 Interstate Transport--significant                  A
 contribution...............................................
(D)(i)(I): Prong 2 Interstate Transport--interference with            A
 maintenance................................................
(D)(i)(II): Prong 3 Interstate Transport--prevention of               A
 significant deterioration..................................
(D)(i)(II): Prong 4 Interstate Transport--visibility........          A
(D)(ii): Interstate and International Pollution Abatement...          A
(E): Adequate Resources.....................................          A
(F): Stationary Source Monitoring System....................          A
(G): Emergency Episodes.....................................          A
(H): Future SIP revisions...................................          A
(J): Consultation with Government Officials, Public                   A
 Notification, PSD and Visibility Protection................
(K): Air Quality and Modeling/Data..........................          A
(L): Permitting Fees........................................          A
(M): Consultation/Participation by Affected Local Entities..          A
South Dakota ARSD; revisions to South Dakota's Air Quality            A
 Program; chapters pertaining to definitions, ambient air
 quality, air quality episodes, prevention of significant
 deterioration, new source review, performance testing,
 control of visible emissions, continuous emission
 monitoring systems, state facilities in Rapid City area,
 construction permits and regional haze program
 administrative rules.......................................
------------------------------------------------------------------------

V. Incorporation by Reference

    In this document, the EPA is proposing to include regulatory text 
in an EPA final rule that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference South Dakota's January 3, 2020 submission of 
the ARSD of the State of South Dakota. The EPA has made, and will 
continue to make, these materials generally available through 
www.regulations.gov and at the EPA Region 8 Office (please contact the 
persons identified in the For Further Information Contact section of 
this preamble for more information).

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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 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, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation 
land or in any other area where the EPA or an

[[Page 29895]]

Indian tribe has demonstrated that a tribe has jurisdiction. In those 
areas of Indian country, the proposed 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, 
Greenhouse gases, 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 12, 2020.
Gregory Sopkin,
Regional Administrator, EPA Region 8.
[FR Doc. 2020-10418 Filed 5-18-20; 8:45 am]
 BILLING CODE 6560-50-P