[Federal Register Volume 85, Number 207 (Monday, October 26, 2020)]
[Rules and Regulations]
[Pages 67653-67660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21474]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2019-0642; FRL-10014-86-Region 8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the 
State of South Dakota's January 15, 2020, State Implementation Plan 
(SIP) submission that addresses infrastructure requirements for the 
2015 ozone National Ambient Air Quality Standards (NAAQS). 
Additionally, in this action, we are approving 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. The EPA is taking this action pursuant to the Clean Air Act 
(CAA).

DATES: This rule is effective on November 25, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2019-0642. All documents in the docket are 
listed on the http://www.regulations.gov website. 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, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Kate Gregory, telephone number: (303) 
312-6175, email address: [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 ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

    On March 12, 2008, the EPA promulgated a new NAAQS for ozone, 
revising the levels of 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.
    Section 110(a)(1) of the CAA directs each state to make an 
infrastructure SIP submission to the EPA within 3 years of promulgation 
of a new or revised NAAQS. Infrastructure requirements for SIPs are 
provided in section 110(a)(1) and (2) of the CAA. Section 110(a)(2) 
lists the specific infrastructure elements that a state's 
infrastructure SIP submission must address, as applicable. The state's 
infrastructure SIP submission must establish that the state's existing 
SIP meets the applicable requirements or make revisions to satisfy 
those requirements as necessary. The elements that are the subject of 
this action are described in detail in our notice of proposed 
rulemaking (NPRM) published on May 19, 2020 (85 FR 29882) for South 
Dakota's infrastructure SIP submission, submitted to the EPA on January 
15, 2020, and SIP revisions to the ARSD submitted to the EPA on January 
3, 2020.

II. Response to Comments

    Comments on our NPRM were due on or before June 18, 2020. The EPA

[[Page 67654]]

received four comments. The first comment was supportive of the 
proposed action. We summarize and respond to all other significant 
adverse comments below.
    Comments: One commenter contends that our May 19, 2020 South Dakota 
infrastructure SIP NPRM is a ``blatantly illegal rule'' which should be 
retracted and disapproved because the EPA has ignored ``the courts,'' 
specifically the May 19, 2020 decision of the D.C. Circuit Court of 
Appeals in Maryland v. EPA.\1\ The commenter contests the EPA's use of 
2023 as the analytic year for evaluation of South Dakota's ``Good 
Neighbor'' obligations for the 2015 ozone NAAQS,\2\ which the agency 
based on its interpretation of the relevant holding in Wisconsin v. EPA 
regarding the appropriate timeframes for analysis and implementation of 
Good Neighbor obligations.\3\ Commenter maintains that the 2021 
Marginal attainment year for the 2015 ozone NAAQS is the correct 
analytical year per the Maryland decision.
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    \1\ Maryland v. EPA, 958 F.3d 1185 (D.C. Cir. 2020).
    \2\ CAA section 110(a)(2)(D)(i)(I) is colloquially referred to 
as the ``Good Neighbor'' provision.
    \3\ Wisconsin v. EPA, 938 F.3d 303, 313-320 (D.C. Cir. 2019).
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    Similarly, another commenter alleges that EPA cannot approve the 
South Dakota infrastructure SIP submission ``as it relates to the good 
neighbor provision because it relies on the flawed modeling,'' and thus 
the EPA should disapprove it because the State relied on the wrong 
analysis. The commenter asserts that, ``courts have opined several 
times that 2023 is the improper year to evaluate for downwind 
contributions'' and the EPA must disapprove South Dakota's SIP 
submission due to 2021 being the correct analytical year to evaluate 
for Good Neighbor downwind contributions.
    The commenter further argues that the Good Neighbor provision 
require states to perform the modeling analysis themselves, and thus 
because the EPA cannot perform the analysis for the State, that the EPA 
consequently cannot supplement South Dakota's infrastructure SIP 
submission with ``new manufactured'' modeling to support approval of 
the proposal. The commenter also asserts that if the EPA were to 
``fix'' the modeling for the State, EPA must then disapprove the 
State's infrastructure SIP submission and promulgate a Federal 
Implementation Plan (FIP).
    Response: The commenters are referring to recent D.C. Circuit court 
decisions addressing, in part, the issue of the relevant analytic year 
for the purposes of evaluating interstate ozone transport under the 
Good Neighbor provision, CAA section 110(a)(2)(D)(i)(I). On September 
13, 2019, the D.C. Circuit issued a decision in Wisconsin v. EPA, 
remanding the Cross-State Air Pollution Rule (``CSAPR'') Update \4\ to 
the extent that Good Neighbor FIPs in the CSAPR Update did not fully 
eliminate upwind states' ``significant contribution'' by the next 
applicable attainment date \5\ by which downwind states must attain the 
2008 ozone NAAQS. See 938 F.3d at 313. The EPA had interpreted that 
holding as limited to the attainment dates for Moderate or higher 
classifications under CAA section 181 on the basis that Marginal 
nonattainment areas have reduced planning requirements and other 
considerations. See, e.g., 85 FR 29882, 29888-89 (May 19, 2020).
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    \4\ 81 FR 74504 (October 26, 2016).
    \5\ See CAA 181(a); 40 CFR 51.1303.
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    On May 19, 2020, the D.C. Circuit in Maryland v. EPA, applying the 
Wisconsin decision, held that the EPA must assess the impacts of 
interstate transport on air quality at the next downwind attainment 
date, including Marginal area attainment dates, in evaluating the basis 
for EPA's denial of a petition under CAA section 126(b). 958 F.3d at 
1203-04. The EPA signed the NPRM proposing approval of South Dakota's 
Good Neighbor SIP prior to the D.C. Circuit's decision in Maryland. In 
accordance with the Maryland decision, the Agency now, in taking this 
final action approving the South Dakota SIP, considers the Marginal 
area attainment date \6\ as the relevant analytic year for the purposes 
of determining whether sources in South Dakota will significantly 
contribute to downwind nonattainment or interfere with maintenance of 
the 2015 ozone NAAQS in any other states.\7\
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    \6\ The attainment date for nonattainment areas classified as 
Marginal for the 2015 ozone NAAQS is August 3, 2021. See CAA 181(a); 
40 CFR 51.1303; 83 FR 25776 (June 4, 2018).
    \7\ We note that the court in Maryland did not have occasion to 
evaluate circumstances in which EPA may determine that an upwind 
linkage to a downwind air quality problem exists at steps 1 and 2 of 
the four-step Good Neighbor framework by a particular attainment 
date, but for reasons of impossibility or profound uncertainty the 
Agency is unable to mandate upwind pollution controls by that date. 
See 938 F.3d at 319-320. The D.C. Circuit noted in Wisconsin that 
upon a sufficient showing, these circumstances may warrant a certain 
degree of flexibility in effectuating the implementation of the Good 
Neighbor provision. Id. Such circumstances are not at issue in the 
present action.
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    EPA disagrees with the commenters' assertion that this change in 
analysis means EPA must disapprove South Dakota's infrastructure SIP 
submission as it pertains to the Good Neighbor provision. As an initial 
matter, in regard to the comment that South Dakota must conduct its own 
air quality analysis, EPA has authority and indeed an obligation to 
take into consideration any relevant information in the record, 
including its own air quality modeling analysis, to determine how to 
act on a SIP submission. Here, the State had concluded in its 
infrastructure SIP submission that it has no emissions reduction 
obligations for purposes of section 110(a)(2)(D)(i)(I), on the basis 
that its emissions are not linked to any nonattainment or maintenance 
receptors, remains approvable. Specifically, relying in part on the 
same data that informed its analysis of the year 2023, the EPA finds it 
reasonable to conclude that the impacts from emissions from South 
Dakota will not exceed a contribution threshold of 1 percent of the 
2015 ozone NAAQS to any downwind nonattainment and maintenance sites in 
2021. This finding is sufficient basis for EPA to conclude that South 
Dakota is not linked to any downwind receptors at step 2 of the four-
step interstate transport framework.\8\
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    \8\ Thus, it is not necessary for the EPA to proceed to evaluate 
whether the state's infrastructure SIP submission may also be 
approvable using an alternative contribution threshold of 1 ppb. The 
EPA released a memorandum in August 2018 which indicates that, based 
on the EPA's analysis of its most recent modeling data, the amount 
of upwind collective contribution capture using a 1 ppb threshold is 
generally comparable, overall, to the amount captured using a 
threshold equivalent to 1 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 1 percent threshold, at step 2 of the four-step 
Good Neighbor framework in developing their SIP revisions addressing 
the Good Neighbor provision for the 2015 ozone NAAQS. 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, 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.
    \9\ 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.
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    South Dakota's January 15, 2020 infrastructure SIP submission 
includes an interstate ozone transport analysis for the Good Neighbor 
provision that focused on the modeling information provided in the 
EPA's March 2018 memorandum,\9\ which used 2023 as the analytic year 
(corresponding with the

[[Page 67655]]

2024 Moderate area attainment date).\10\ Based on the contribution 
modeling included in the March 2018 memorandum, the EPA concludes that 
South Dakota's largest impact on any downwind nonattainment or 
maintenance receptors in 2023 are 0.07 parts per billion (ppb) and 0.05 
ppb, respectively.\11\ These values are both far less than 1 percent of 
the 2015 ozone NAAQS (0.70 ppb). In response to these comments and the 
Maryland decision, using the best available information (including the 
same data that informed EPA's 2023 modeling) to analyze South Dakota's 
air quality impacts in the year 2021, the EPA finds it reasonable to 
conclude that South Dakota's impact on any potential downwind 
nonattainment and maintenance receptor in 2021 would be similar to 
those projected in 2023, and likewise well below 1 percent of the 2015 
ozone NAAQS, as detailed in the methodology described below. Therefore, 
EPA finds that South Dakota's infrastructure SIP submission satisfies 
the State's Good Neighbor obligations for the 2015 ozone NAAQS.
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    \10\ The year 2023 was used as the analytic year because that 
year aligns with the expected attainment year for Moderate ozone 
nonattainment areas. The attainment date for nonattainment areas 
classified as Moderate for the 2015 ozone NAAQS is August 3, 2024. 
See CAA 181(a); 40 CFR 51.1303; 83 FR 25776 (June 4, 2018).
    \11\ The EPA's analysis indicates that South Dakota will have a 
0.07 ppb impact at the 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 the 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.
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    The EPA's analysis of receptors and contributions in 2021 relies in 
part on the 2023 modeling used in the NPRM of this action, the results 
of which were included with the March 2018 memorandum. These data are 
the most recent published applicable modeling data available at the 
time of this final action. To estimate South Dakota's maximum 
contribution to a nonattainment or maintenance receptor in 2021, EPA 
developed an interpolation analysis that evaluates available modeling, 
monitoring, and emissions data to assess air quality in this year. In 
general, this analysis utilizes 2019 measured design values \12\ and 
2023 modeled design values to estimate design values at each monitoring 
site in 2021. Specifically, 2021 average and maximum design values were 
calculated by straight-line linear interpolation between the 2019 
measured data and the 2023 modeled data. EPA believes that the linear 
interpolation methodology using measured data and 2023 model 
projections provides a technically sound basis for estimation of ozone 
design values in 2021 in part because of the relatively short two-year 
span between 2021 and 2023.
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    \12\ The 2019 design values at each monitoring site nationwide 
are available at https://www.epa.gov/air-trends/air-quality-design-values.
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    EPA calculated ozone contributions in 2021 by applying the 
following two-step process. First, the contributions (in ppb) from each 
state to each monitoring site in 2023 were converted to a fractional 
portion of the 2023 average design value by dividing the contribution 
by the 2023 design value. In the second step, the resulting 
contribution fractions were multiplied by the estimated 2021 average 
design value to produce 2021 contributions from each state to each 
monitoring site.\13\ \14\
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    \13\ Note that the method used here for calculating 
contributions in 2021 is similar to the method used by EPA to 
calculate the 2023 contributions from 2023 air quality modeling.
    \14\ Design values for 2019, 2021, and 2023 along with the 
contributions in 2021 and 2023 are provided in a file in the docket 
for this rule.
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    The 2021 design values and contributions were examined to determine 
if South Dakota contributes at or above the 1 percent of the 2015 ozone 
NAAQS threshold (0.70 ppb) to a downwind nonattainment or maintenance 
receptor. The data indicate that the highest contribution in 2021 from 
South Dakota to a downwind receptor is 0.14 ppb to the nonattainment 
receptor site in Cook County, Illinois.\15\ Based on this analysis, EPA 
finds it reasonable to conclude that South Dakota will contribute less 
than 1 percent of the 2015 ozone NAAQS to any potential nonattainment 
or maintenance receptors in 2021.
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    \15\ This downwind receptor site has Air Quality System (AQS) 
monitoring ID #170310001 and is located in Cook County, Illinois.
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    EPA also analyzed ozone precursor emissions trends in South Dakota 
to support the findings from the air quality analysis. In evaluating 
emissions trends, we focused on State-wide emissions of nitrogen oxides 
(``NOX'') and volatile organic compounds (``VOCs'') in South 
Dakota.\16\ \17\ Emissions from mobile sources, electric generating 
units (``EGUs''), industrial facilities, gasoline vapors, and chemical 
solvents are some of the major anthropogenic sources of ozone 
precursors. This evaluation looks at both past emissions trends, as 
well as projected trends.
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    \16\ This is because ground-level ozone is not emitted directly 
into the air but is a secondary air pollutant created by chemical 
reactions between ozone precursors, chiefly NOX and non-
methane VOCs, in the presence of sunlight.
    \17\ 81 FR 74504, 74513-14.
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    As shown in Table 1, between 2011 and 2017, annual total 
NOX and VOC emissions have declined, by 32 percent and 9 
percent, respectively. The projected reductions are a result of ``on 
the books'' and ``on the way'' regulations that will continue to 
decrease NOX and VOC emissions in South Dakota, as indicated 
by our 2023 projected emissions. The large decrease in NOX 
emissions between 2017 emissions and projected 2023 emissions in South 
Dakota are primarily driven by reductions in emissions from on-road and 
nonroad vehicles. EPA projects that the downward trend in both VOC and 
NOX emissions from 2011 through 2017 is expected to continue 
at a steady rate out to 2023 and further into the future due to the 
replacement of higher emissions vehicles with lower emitting vehicles 
as a result of several mobile source control programs.\18\ This 
downward trend in emissions in South Dakota adds support to the air 
quality analysis presented above, which indicates that the 
contributions from emissions from sources in South Dakota to ozone in 
downwind states will continue to decline and remain below 1 percent of 
the NAAQS.
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    \18\ Tier 3 Standards (March 2014), the Light-Duty Greenhouse 
Gas Rule (March 2013), Heavy (and Medium)-Duty Greenhouse Gas Rule 
(August 2011), the Renewable Fuel Standard (February 2010), the 
Light Duty Greenhouse Gas Rule (April 2010), the Corporate-Average 
Fuel Economy standards for 2008-2011 (April 2010), the 2007 Onroad 
Heavy-Duty Rule (February 2009), and the Final Mobile Source Air 
Toxics Rule (MSAT2) (February 2007).

[[Page 67656]]



                              Table 1--Annual Emissions of NOX and VOC From Anthropogenic Emission Sources in South Dakota
                                                                         [tons]
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                                                                                                                                              Projected
                                                      2011         2012         2013         2014         2015         2016         2017         2023
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NOX.............................................       73,995       71,438       68,881       66,323       56,548       52,664       50,590       34,096
VOC.............................................       66,430       64,229       62,028       59,826       58,873       57,627       56,528       51,313
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    Thus, the EPA concludes the air quality and emission analyses 
indicate that emissions from South Dakota will not significantly 
contribute to nonattainment or interfere with maintenance of the 2015 
ozone NAAQS in any other state in 2021. Therefore, EPA concludes that 
South Dakota's infrastructure SIP submission satisfies the State's Good 
Neighbor obligations for the 2015 ozone NAAQS.
    Comment: One commenter asserts that the EPA should not approve 
South Dakota's infrastructure SIP submission with respect to PSD 
requirements because the Agency isn't required to do so under current 
rules. The commenter seems to allege that South Dakota's PSD program is 
under consideration at the time of the proposed action and there will 
be legal challenges regarding the approval of construction permits. 
Additionally, the commenter alleges that the EPA should `evaluate the 
strength of the S.D. permit program and its financial health.'
    Response: The EPA disagrees with the commenter. The commenters' 
concerns appear to be directed not to whether the existing SIP for 
South Dakota meets the relevant structural requirements for PSD 
programs, but rather to whether South Dakota is in fact faithfully 
implementing the existing provisions of its EPA-approved SIP. As the 
EPA has explained in other infrastructure SIP actions, comments like 
these highlight an important distinction between whether an 
infrastructure SIP submission meets the applicable requirements of the 
CAA on its face (i.e., pertain to the facial sufficiency of the state's 
SIP), and whether a state is actually complying with the requirements 
of that SIP (i.e., pertain to adequacy of the state's implementation of 
the SIP).\19\ This comment implicates the question of the degree to 
which implementation concerns are relevant in the context of acting on 
a state's infrastructure SIP submission. In the context of an 
infrastructure SIP submission, the EPA interprets the requirements of 
section 110(a)(1) and (2) to require the Agency to focus on whether the 
state has a SIP that provides the requisite legal framework for 
implementation, maintenance and enforcement of the NAAQS. Generally 
speaking, the EPA's review of infrastructure SIP submissions is limited 
to whether, pursuant to CAA section 110(a)(2), the submission facially 
meets the requirements of the statutory criteria outlined therein, as 
applicable. In the case of section 110(a)(2)(C), for example, the 
statute requires a state to have a SIP that ``include[s] a program to 
provide for . . . regulation of the modification and construction of 
any stationary sources . . . including a permit program as required in 
parts C and D of this subchapter.'' Thus, the EPA reviews a state's 
infrastructure SIP submission to assure that the structural elements of 
the state's PSD permitting program meets current CAA requirements for 
such programs.
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    \19\ See ``Approval and Disapproval and Promulgation of 
Implementation Plans; Texas; Infrastructure and Interstate Transport 
Requirements of the 1997 Ozone and the 1997 and 2006 
PM2.5 NAAQS,'' 76 FR 81371 (Dec. 28, 2011).
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    This is not to say that the EPA has no role in reviewing whether a 
state is faithfully implementing its approved SIP, or otherwise 
complying with the CAA and its implementing regulations. To the 
contrary, there are multiple statutory tools that the EPA can use to 
rectify problems with a state's implementation of its SIP, and the 
existence of these tools is consistent with the EPA's interpretation of 
section 110(a)(2) with respect to the Agency's role in reviewing 
infrastructure SIP submissions. For example, the CAA provides the EPA 
the authority to issue a SIP call, 42 U.S.C. 7410(k)(5); make a finding 
of failure to implement, id. sections 7410(m), 7509(a)(4); and take 
measures to address specific permits pursuant to the EPA's case-by-case 
permitting oversight. See, e.g., sections 7475(a)(2); 7477. The 
appropriateness of employing these authorities depends on the nature 
and extent of the particular implementation problems at issue.
    With respect to South Dakota's infrastructure SIP submission, the 
EPA analyzed the submission itself, and evaluated the text of its 
provisions for compliance with the relevant elements of section 
110(a)(2). The EPA has evaluated the State's submission on a 
requirement-by-requirement basis and explained its views on the 
adequacy of the State's SIP for purposes of meeting the infrastructure 
SIP requirements.
    The EPA appreciates and takes seriously the commenters' assertions 
that the Agency should evaluate the strength of the South Dakota permit 
program in the SIP as approved by the EPA. However, because this action 
involves a review of the infrastructure SIP submission itself, the EPA 
is not evaluating the merits of assertions concerning implementation of 
the SIP in the context of this action. At this time, the EPA is 
finalizing its proposed approval of the infrastructure SIP submission 
that is currently before the Agency. If the EPA later determines that 
there are indeed concerns with respect to the implementation of the PSD 
program in South Dakota, the Agency intends to take appropriate action 
to ensure those problems are rectified using whatever statutory tools 
are appropriate to the implementation problem identified.
    With respect to the requirements related to PSD relevant to this 
approval of the infrastructure SIP submission, the EPA has determined 
that the State's SIP as previously approved, meets the relevant 
structural requirements for purposes of PSD in section 110(a)(2)(C), 
(D)(i)(II) element 3, and (J). Some examples of these basic structural 
SIP requirements include having state law authority to implement the 
SIP, an overarching permitting program in place, and a properly 
deployed monitoring network. As to the PSD program in particular, these 
basic structural requirements include those provisions necessary for 
the permitting program to address all regulated NSR pollutants and the 
proper sources. The EPA considers action on the infrastructure SIP 
submissions required by section 110(a)(1) and (2) to be an evaluation 
of a state's SIP to assure that it meets the basic structural 
requirements for the new or revised NAAQS, not a time to address all 
potential substantive defects in existing SIP provisions, or alleged 
defects in implementation of the SIP.
    The EPA concludes that South Dakota's infrastructure SIP submission 
satisfies the State's obligations for the 2015 ozone NAAQS with respect 
to PSD program requirements.

[[Page 67657]]

III. Final Action

    In this rulemaking, we are approving multiple elements of the 
infrastructure SIP requirements for the 2015 ozone NAAQS for South 
Dakota along with approving revisions to the ARSD, Air Pollution 
Control Program. The actions we are approving are contained in Table 1 
below.
    The EPA is approving South Dakota's January 15, 2020 SIP submission 
that addresses infrastructure requirements for the 2015 ozone NAAQS SIP 
submission for the following CAA section 110(a)(2) infrastructure 
elements: (A), (B), (C), (D)(i)(I) Prongs 1 and 2, (D)(i)(II) Prong 3, 
(D)(i)(II) Prong 4, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and 
(M). Additionally, in this action, we are approving a SIP revision 
submitted by the State of South Dakota on January 3, 2020 that revises 
the ARSD, Air Pollution Control Program.
    In the table below, the key is as follows:

A--Approve.
D--Disapprove.
NA--No Action.

  Table 2--Infrastructure Elements That the EPA Is Proposing To Act On
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       2015 Ozone NAAQS Infrastructure SIP Elements: South Dakota
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(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, 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..............................
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IV. Incorporation by Reference

    In this document, the EPA is finalizing regulatory text that 
includes incorporation by reference. In accordance with requirements of 
1 CFR 51.5, the EPA is finalizing the incorporation by reference of a 
SIP revision submitted by the State of South Dakota on January 3, 2020 
that revises the 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, 
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 as is described in the preamble. 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 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information). Therefore, these materials have 
been approved by the EPA for inclusion in the SIP, have been 
incorporated by reference by the EPA into that plan, are fully 
federally enforceable under sections 110 and 113 of the CAA as of the 
effective date of the final rulemaking of the EPA's approval, and will 
be incorporated by reference in the next update to the SIP 
compilation.\20\
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    \20\ 62 FR 27968 (May 22, 1997).
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V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive 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, 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 EPA with the discretionary authority to 
address, as

[[Page 67658]]

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 EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 28, 2020. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

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

    Dated: September 23, 2020.
Debra Thomas,
Acting Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart QQ--South Dakota

0
2. In Sec.  52.2170:
0
a. The table in paragraph (c) is amended by:
0
i. Revising the entries ``74:36:01:01'', ``74:36:01:05'', 
``74:36:01:19'', ``74:36:01:20'', ``74:36:02:02'', ``74:36:02:03'', 
``74:36:02:04'', ``74:36:02:05'', ``74:36:03:01'', ``74:36:03:02'', 
``74:36:09:02'', ``74:36:09:03'', ``74:36:10:02'', ``74:36:10:03.01'', 
``74:36:10:05'', ``74:36:10:07'', ``74:36:10:08'', ``74:36:11:01'', 
``74:36:11:02'', ``74:36:11:03'', ``74:36:11:04'', ``74:36:12:01'', 
``74:36:12:03'', ``74:36:13:02'', ``74:36:13:03'', ``74:36:13:04'', 
``74:36:13:06'', ``74:36:13:07'', ``74:36:18:10'', ``74:36:20:05'', 
``74:36:21:02'', ``74:36:21:04'', ``74:36:21:05'', and ``74:36:21:09'' 
and
0
ii. Adding an entry for ``74:36:21:13'' in numerical order; and
0
b. The table in paragraph (e) is amended by adding an entry for ``XXVI. 
Section 110(a)(2) Infrastructure Requirements for the 2015 8-hour Ozone 
NAAQS'' at the end of the table.
    The revisions and additions read as follows:


Sec.  52.2170  Identification of plan.

* * * * *
    (c) * * *

----------------------------------------------------------------------------------------------------------------
                                                     State       EPA effective     Final rule
           Rule No.               Rule title    effective date       date        citation, date      Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                              74:36:01. Definitions
----------------------------------------------------------------------------------------------------------------
74:36:01:01..................  Definitions....      11/25/2019      11/25/2020  [insert Federal
                                                                                 Register
                                                                                 citation], 10/
                                                                                 26/2020.
 
                                                  * * * * * * *
74:36:01:05..................  Applicable           11/25/2019      11/25/2020  [insert Federal
                                requirements                                     Register
                                of the Clean                                     citation], 10/
                                Air Act                                          26/2020.
                                defined.
 
                                                  * * * * * * *
74:36:01:19..................  Existing             11/25/2019      11/25/2020  [insert Federal
                                municipal                                        Register
                                solid waste                                      citation], 10/
                                landfill                                         26/2020.
                                defined.
74:36:01:20..................  Physical change      11/25/2019      11/25/2020  [insert Federal
                                in or change                                     Register
                                in the method                                    citation], 10/
                                of operation                                     26/2020.
                                defined.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                          74:36:02. Ambient Air Quality
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
74:36:02:02..................  Ambient air          11/25/2019      11/25/2020  [insert Federal
                                quality                                          Register
                                standards.                                       citation], 10/
                                                                                 26/2020.
74:36:02:03..................  Methods of           11/25/2019      11/25/2020  [insert Federal
                                sampling and                                     Register
                                analysis.                                        citation], 10/
                                                                                 26/2020.

[[Page 67659]]

 
74:36:02:04..................  Ambient air          11/25/2019      11/25/2020  [insert Federal
                                monitoring                                       Register
                                network.                                         citation], 10/
                                                                                 26/2020.
74:36:02:05..................  Air quality          11/25/2019      11/25/2020  [insert Federal
                                monitoring                                       Register
                                requirements.                                    citation], 10/
                                                                                 26/2020.
----------------------------------------------------------------------------------------------------------------
                                         74:36:03. Air Quality Episodes
----------------------------------------------------------------------------------------------------------------
74:36:03:01..................  Air pollution        11/25/2019      11/25/2020  [insert Federal
                                emergency                                        Register
                                episode.                                         citation], 10/
                                                                                 26/2020.
74:36:03:02..................  Episode              11/25/2019      11/25/2020  [insert Federal
                                emergency                                        Register
                                contingency                                      citation], 10/
                                plan.                                            26/2020.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                74:36:09. Prevention of Significant Deterioration
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
74:36:09:02..................  Prevention of        11/25/2019      11/25/2020  [insert Federal
                                Significant                                      Register
                                Deterioration.                                   citation], 10/
                                                                                 26/2020.
74:36:09:03..................  Public               11/25/2019      11/25/2020  [insert Federal
                                participation.                                   Register
                                                                                 citation], 10/
                                                                                 26/2020.
----------------------------------------------------------------------------------------------------------------
                                           74:36:10. New Source Review
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
74:36:10:02..................  Definitions....      11/25/2019      11/25/2020  [insert Federal
                                                                                 Register
                                                                                 citation], 10/
                                                                                 26/2020.
74:36:10:03.01...............  New source           11/25/2019      11/25/2020  [insert Federal
                                review                                           Register
                                preconstructio                                   citation], 10/
                                n permit                                         26/2020.
                                required.
74:36:10:05..................  New source           11/25/2019      11/25/2020  [insert Federal
                                review                                           Register
                                preconstructio                                   citation], 10/
                                n permit                                         26/2020.
                                required.
 
                                                  * * * * * * *
74:36:10:07..................  Determining          11/25/2019      11/25/2020  [insert Federal
                                credit for                                       Register
                                emissions                                        citation], 10/
                                Offsets.                                         26/2020.
74:36:10:08..................  Projected            11/25/2019      11/25/2020  [insert Federal
                                actual                                           Register
                                emissions.                                       citation], 10/
                                                                                 26/2020.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                          74:36:11. Performance Testing
----------------------------------------------------------------------------------------------------------------
74:36:11:01..................  Stack                11/25/2019      11/25/2020  [insert Federal
                                performance                                      Register
                                testing or                                       citation], 10/
                                other testing                                    26/2020.
                                methods.
74:36:11:02..................  Secretary may        11/25/2019      11/25/2020  [insert Federal
                                require                                          Register
                                performance                                      citation], 10/
                                tests.                                           26/2020.
74:36:11:03..................  Notice to            11/25/2019      11/25/2020  [insert Federal
                                department of                                    Register
                                performance                                      citation], 10/
                                test.                                            26/2020.
74:36:11:04..................  Testing new          11/25/2019      11/25/2020  [insert Federal
                                fuels or raw                                     Register
                                materials.                                       citation], 10/
                                                                                 26/2020.
----------------------------------------------------------------------------------------------------------------
                                     74:36:12. Control of Visible Emissions
----------------------------------------------------------------------------------------------------------------
74:36:12:01..................  Restrictions on      11/25/2019      11/25/2020  [insert Federal
                                visible                                          Register
                                emissions.                                       citation], 10/
                                                                                 26/2020.
 
                                                  * * * * * * *
74:36:12:03..................  Exceptions           11/25/2019      11/25/2020  [insert Federal
                                granted to                                       Register
                                alfalfa                                          citation], 10/
                                pelletizers or                                   26/2020.
                                dehydrators.
----------------------------------------------------------------------------------------------------------------
                                74:36:13. Continuous Emission Monitoring Systems
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
74:36:13:02..................  Minimum              11/25/2019      11/25/2020  [insert Federal
                                performance                                      Register
                                specifications                                   citation], 10/
                                for all                                          26/2020.
                                continuous
                                emission
                                monitoring
                                systems.

[[Page 67660]]

 
74:36:13:03..................  Reporting            11/25/2019      11/25/2020  [insert Federal
                                requirements.                                    Register
                                                                                 citation], 10/
                                                                                 26/2020.
74:36:13:04..................  Notice to            11/25/2019      11/25/2020  [insert Federal
                                department of                                    Register
                                exceedance.                                      citation], 10/
                                                                                 26/2020.
 
                                                  * * * * * * *
74:36:13:06..................  Compliance           11/25/2019      11/25/2020  [insert Federal
                                certification.                                   Register
                                                                                 citation], 10/
                                                                                 26/2020.
74:36:13:07..................  Credible             11/25/2019      11/25/2020  [insert Federal
                                evidence.                                        Register
                                                                                 citation], 10/
                                                                                 26/2020.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                        74:36:18. Regulations for State Facilities in the Rapid City Area
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
74:36:18:10..................  Visible              11/25/2019      11/25/2020  [insert Federal
                                emission limit                                   Register
                                for                                              citation], 10/
                                construction                                     26/2020.
                                and continuous
                                operation
                                activities.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                         74:36:20. Construction Permits for New Sources or Modifications
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
74:36:20:05..................  Standard for         11/25/2019      11/25/2020  [insert Federal
                                issuance of                                      Register
                                construction                                     citation], 10/
                                permit.                                          26/2020.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                         74:36:21. Regional Haze Program
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
74:36:21:02..................  Definitions....      11/25/2019      11/25/2020  [insert Federal
                                                                                 Register
                                                                                 citation], 10/
                                                                                 26/2020.
 
                                                  * * * * * * *
74:36:21:04..................  Visibility           11/25/2019      11/25/2020  [insert Federal
                                impact                                           Register
                                analysis.                                        citation], 10/
                                                                                 26/2020.
74:36:21:05..................  BART                 11/25/2019      11/25/2020  [insert Federal
                                determination.                                   Register
                                                                                 citation], 10/
                                                                                 26/2020.
 
                                                  * * * * * * *
74:36:21:09..................  Monitoring,          11/25/2019      11/25/2020  [insert Federal
                                recordkeeping,                                   Register
                                and reporting.                                   citation], 10/
                                                                                 26/2020.
 
                                                  * * * * * * *
74:36:21:13..................  Calculate a 30-      11/25/2019      11/25/2020  [insert Federal
                                day rolling                                      Register
                                average.                                         citation], 10/
                                                                                 26/2020.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                         State       EPA effective   Final rule citation,
            Rule title              effective date       date                date                 Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
XXVI. Section 110(a)(2)                 01/15/2020      11/25/2020  [insert Federal
 Infrastructure Requirements for                                     Register citation],
 the 2015 8-hour Ozone NAAQS.                                        10/26/2020.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2020-21474 Filed 10-23-20; 8:45 am]
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