[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Rules and Regulations]
[Pages 21024-21027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07416]



40 CFR Part 52

[EPA-R08-OAR-2021-0807; FRL-9680-02-R8]

Air Plan Approval; South Dakota; Revisions to South Dakota 
Codified Law and Administrative Rules of South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.


SUMMARY: With this direct final rule, the Environmental Protection 
Agency (EPA or the ``Agency'') is promulgating approval of South 
Dakota's submittal requesting that EPA recognize the merger of South 
Dakota's Department of Agriculture (DOA) with the Department of 
Environment and Natural Resources (DENR) to form the new Department of 
Agriculture and Natural Resources (DANR) and incorporate corresponding 
non-substantive revisions to the South Dakota Codified Law (SDCL) and 
the Administrative Rules of South Dakota (ARSD) into South Dakota's 
Implementation Plan. Accordingly, EPA is taking this final action in 
accordance with Clean Air Act (CAA).

DATES: This direct final rule is effective on June 10, 2022 without 
further notice, unless EPA receives adverse written comments on or 
before May 11, 2022. If adverse comments are received, EPA will publish 
a timely withdrawal of the direct final rule in the Federal Register 
informing the public that the rule will not take effect.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2021-0807. 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 electronically in 
www.regulations.gov. To reduce the risk of COVID-19 transmission, for 
this action we do not

[[Page 21025]]

plan to offer hard copy review of the docket. Please email or call the 
person listed in the FOR FURTHER INFORMATION CONTACT section if you 
need to make alternative arrangements for access to the docket.

FOR FURTHER INFORMATION CONTACT: Kate Gregory, Air and Radiation 
Division, U.S. Environmental Protection Agency (EPA), Region 8, Mail 
Code 8P-ARD-QP, 1595 Wynkoop Street, Denver, Colorado 80202-1129, 
telephone number: (303) 312-6175, email address: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means EPA.

I. Why is EPA using a direct final rule?

    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial action and anticipates no 
adverse comments. However, in the Proposed Rules section of this issue 
of the Federal Register publication, EPA is publishing a separate 
document that will serve as the proposal to approve revisions to both 
the SDCL and the ARSD. If EPA receives adverse comments, EPA will 
publish a timely withdrawal in the Federal Register informing the 
public that this direct final rule will not take effect. EPA will 
address all public comments in a subsequent final rule based on the 
proposed rule. EPA will not institute a second comment period on this 
action. Any parties interested in commenting must do so at this time.

II. Background

    On April 16, 2021, South Dakota's Office of Attorney General 
submitted a letter notifying EPA of the establishment of the South 
Dakota DANR. The letter stated that on January 19, 2021, South Dakota 
Governor, Kristi Noem, executed Executive Order 2021-03, which provided 
for the merger of the South Dakota DOA and the South Dakota DENR into 
one department--the DANR. According to the South Dakota Constitution, 
executive reorganization orders become effective ``within ninety days 
after submission'' of the executive order to the South Dakota 
Legislature (Legislature) unless one of the two houses of the 
Legislature disapproves of the executive reorganization (S.D. 
Constitution, Article IV, Section 8).\1\ During the 2021 session, 
neither house of the Legislature passed a resolution of disapproval of 
Governor Noem's Executive Order 2021-03 and the Order became effective 
April 19, 2021.\2\

    \1\ SD DANR Merger SIP Submittal, January 21, 2022, p. 27-28, 
Letter from Steven R. Blair, Assistant Attorney General, South 
Dakota Office of Attorney General, to Deb Thomas, Acting Regional 
Administrator, EPA Region 8, Re: Establishment of South Dakota 
Department of Agriculture and Natural Resources, April 16, 2021.
    \2\ SD DANR Merger SIP Submittal, p.1, Letter from Hunter 
Roberts, Secretary, South Dakota Department of Agriculture and 
Natural Resources, to KC Becker, Regional Administrator, EPA Region 
8, January 20, 2022.

    In the letter submitted by the South Dakota Office of Attorney 
General, Assistant Attorney General Steven R. Blair stated that all 
State programs previously authorized to carry out EPA programs would 
continue to function in the same manner and all current environmental 
protection activities conducted under existing EPA approved or 
delegated programs under the DOA and/or the DENR would continue intact 
under the newly established DANR. Further, Mr. Blair stated that the 
merger caused no substantive budgetary or personnel changes, that the 
new DANR has all the authorities, powers, and duties of the previous 
DOA and DENR, and that the laws in effect at the time EPA approved or 
delegated authority to DOA and/or DENR continue to be fully effective 
and enforceable. Mr. Blair explained that the merger did not require 
any substantive changes to state law or administrative rules; the 
statutes and rules were merely updated to reflect the name of the new 

    \3\ SD DANR Merger SIP Submittal, p. 27-28.

III. State Submittal

    On January 21, 2022, pursuant to 40 CFR part 51, South Dakota 
submitted a request that EPA recognize the merger of South Dakota's DOA 
with the DENR to form the new DANR and incorporate corresponding 
revisions to the SDCL and the ARSD into South Dakota's Implementation 
Plan at 40 CFR 52.2170. The January 21, 2022 submission included a 
letter from the Secretary of the DANR, Hunter Roberts, as the 
Governor's designee.\4\ Secretary Roberts stated that the SDCL and ARSD 
were automatically updated with DANR's new name during the merger 
process. Additionally, Secretary Roberts stated that South Dakota's 
Board of Minerals and Environment approved the DANR's request to ask 
EPA to recognize the department's new name in South Dakota's State 
Implementation Plan (SIP) at 40 CFR 52.2170 during a public hearing on 
December 16, 2021. Secretary Roberts further confirmed that the merger 
did not cause a substantive change to state law or administrative rules 
and that DANR maintains the same authorities, powers, and duties 
covered and implemented under the previous department name.\5\

    \4\ SD DANR Merger SIP Submittal, p. 9.
    \5\ SD DANR Merger SIP Submittal, p.1.

    South Dakota's submittal included clean and redlined copies of the 
revised SDCL and ARSD, which are available in the docket for this 
action. The non-substantive revisions became effective on April 19, 
2021.\6\ The submittal also included evidence that public notice of the 
State's proposed submittal ran in eleven South Dakota newpapers and a 
public hearing was held on December 16, 2021, demonstrating compliance 
with 40 CFR 51.102. The State received no public comments.

    \6\ SD DANR Merger SIP Submittal, p. 2-7.

    The SDCL and ARSD approved into South Dakota's SIP as revised are 
listed in Table 1 below.\7\

    \7\ See SD DANR Merger SIP Submittal, p. 33. In addition to the 
listed provisions in Table 1, South Dakota also included ARSD 
74:37:01:08 in the submittal. This provision is not included as part 
of the EPA-approved SIP. Accoridngly, we are not taking action to 
include the revised 74:37:01:08 in South Dakota's approved SIP. See 
Email dated March 4, 2022, from Kyrik Rombough, Engineer Manager 
III, South Dakota Department of Agriculture and Natural Resources, 
to Monica Morales, Acting Deputy Director, EPA Region 8 Air and 
Radiation Division.

 Table 1--Revisions to South Dakota South Dakota Codified Law (SDCL) and
 Administrative Rules of South Dakota (ARSD) Air Pollution Control Rules

IV. Final Action

    South Dakota submitted the necessary information for EPA to review 
the non-substantive revisions to South Dakota's statutes and 
administrative rules to reflect the merger of South Dakota's DOA with 
the DENR to form the new DANR. With the exception of 74:37:01:08, which 
is part of South Dakota's approved CAA title V program rather than part 
of South Dakota's approved SIP, EPA is now acting to approve the non-
substantive revisions to the SDCL and ARSD air pollution control rules 
into the SIP at 40 CFR 52.2170.

V. Incorporation by Reference

    In this document, EPA is finalizing regulatory text in an EPA final 
rule that includes incorporation by reference. In accordance with the 
requirements of 1 CFR 5.15, EPA is finalizing the incorporation by 
reference of the regulations described in section III of

[[Page 21026]]

this preamble and as set forth in the amendments to 40 CFR 52.2170 
below. EPA has made, and will continue to make, these materials 
generally available through https://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 EPA for 
inclusion in the SIP, have been incorporated by reference by EPA into 
that plan, are fully federally enforceable under sections 110 and 113 
of the CAA as of the effective date of the final rule of EPA's 
approval, and will be incorporated by reference by the Director of the 
Federal Register in the next update to the SIP compilation.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
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, 
     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 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 EPA or an 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).
    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. 
    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 June 10, 2022. 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 

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

    Dated: April 2, 2022.
KC Becker,
Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:


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

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

Subpart QQ--South Dakota

2. In Sec.  52.2170:
a. The table in paragraph (c) is amended by revising the entry 
b. The table in paragraph (e) is amended by adding the entry ``XXVII. 
South Dakota Codified Laws, 34A-1-2, 34A-1-58.1, 34A-1-60 and 34A-1-
63'' in numerical order.
    The revision and addition read as follows:

Sec.  52.2170   Identification of plan.

* * * * *
    (c) * * *

                                                      State         EPA
           Rule No.                 Rule title      effective    effective       Final rule         Comments
                                                       date         date       citation, date

[[Page 21027]]

                                                  * * * * * * *
                                              74:36:01. Definitions
74:36:01:01...................  Definitions......   04/19/2021    5/11/2022  [insert Federal    ................
                                                                              citation], 4/11/
                                                  * * * * * * *

* * * * *
    (e) * * *

                                      State         EPA
            Rule title              effective    effective       Final rule citation, date          Comments
                                       date         date
                                                  * * * * * * *
XXVII. South Dakota Codified           4/19/21    5/11/2022  [insert Federal Register          .................
 Laws, 34A-1-2, 34A-1-58.1, 34A-1-                            citation], 4/11/2022.
 60 and 34A-1-63.

[FR Doc. 2022-07416 Filed 4-8-22; 8:45 am]