[Federal Register Volume 87, Number 96 (Wednesday, May 18, 2022)]
[Rules and Regulations]
[Pages 30105-30108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10224]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60, 61, 62, and 70

[EPA-R08-OAR-2021-0732; FRL-9829-02-R8]


Approval of Clean Air Act Operating Permit Program Revisions; 
Negative Declaration of Existing Hospital/Medical/Infectious Waste 
Incinerators and Administrative Updates; South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: With this direct final rule, the Environmental Protection 
Agency (EPA or the ``Agency'') is promulgating approval of revisions to 
the South Dakota operating permit program for stationary sources under 
Clean Air Act (CAA) title V (the ``title V program''), a Clean Air Act 
(CAA) section 111(d)/129 negative declaration for incinerators subject 
to the Hospital/Medical/Infectious Waste Incinerators (HMIWI) Emissions 
Guidelines, and making administrative updates. EPA is taking this final 
action in accordance with the CAA.

DATES: This direct final rule is effective on July 18, 2022 without 
further notice, unless EPA receives adverse written comments on or 
before June 17, 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-2021-0732. 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 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: Carson Coate, Air and Radiation 
Division, EPA, Region 8, Mail code 8ARD, 1595 Wynkoop Street, Denver, 
Colorado, 80202-1129, telephone number: (406) 457-5042, 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, elsewhere in this issue of the Federal 
Register publication, EPA is publishing a separate document that will 
serve as the proposal to approve South Dakota's title V program 
revisions, the negative declaration for 40 CFR part 60, subpart Ce, and 
the administrative updates to 40 CFR 60.4 and 61.04, if relevant 
adverse comments are filed.
    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

    Title V of the CAA as amended (42 U.S.C. 7401 et seq.) directs 
states to develop and submit to EPA programs for issuing operating 
permits to all major stationary sources and to certain other 
sources.\1\ As required under title V, EPA promulgated regulations 
establishing the minimum elements of an approvable state title V 
program and defined the corresponding procedures by which the EPA will 
approve, oversee and, when necessary, withdraw approval of a state 
title V program.\2\ South Dakota received final, full approval of its 
title V program effective on February 28, 1996.\3\
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    \1\ 42 U.S.C. 7661a.
    \2\ 40 CFR part 70.
    \3\ 61 FR 2720 (Jan. 29, 1996).
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    Sections 111(d) and 129 of the CAA require states to submit plans 
to control certain pollutants (designated pollutants) at existing solid 
waste combustor facilities (designated facilities) whenever standards 
of performance have been established under section 111(b) for new 
sources of the same type, and EPA has established emissions guidelines 
for such existing sources.\4\ CAA section 129 directs EPA to establish 
standards of performance for new sources (NSPS) and emissions 
guidelines for existing sources for each category of solid waste 
incineration unit.\5\ Under CAA section 129, NSPS and emissions 
guidelines must contain numerical emissions limitations for particulate 
matter, opacity (as appropriate), sulfur dioxide, hydrogen chloride, 
oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and 
dioxins and dibenzofurans.\6\ While NSPS are directly applicable to 
affected facilities, emissions guidelines for existing units are 
intended for states to use to develop a state plan to submit to EPA.\7\ 
When an affected facility is located in a state, the state must then 
develop and submit a plan for the

[[Page 30106]]

control of the designated pollutant.\8\ Once approved by EPA, the state 
plan becomes federally enforceable. If a state does not submit an 
approvable state plan to EPA, EPA is responsible for developing, 
implementing, and enforcing a federal plan.\9\
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    \4\ 42 U.S.C. 7411(d), 7429(b)(2).
    \5\ 42 U.S.C. 7429(a).
    \6\ Id. 7429(a)(4).
    \7\ Id. 7429(b)(2).
    \8\ Id. See also id. 7411(d)(1).
    \9\ Id.
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    The regulations at 40 CFR part 60, subpart B (Subpart B), contain 
general provisions applicable to the adoption and submittal of state 
plans for controlling designated pollutants. Additionally, 40 CFR part 
62, subpart A, provides the procedural framework by which EPA will 
approve or disapprove such plans submitted by a state. However, 40 CFR 
60.23(b) and 62.06 provide that if there are no existing sources of the 
designated pollutant in the state, the state may submit a letter of 
certification to that effect (i.e., a negative declaration) in lieu of 
a plan. The negative declaration exempts the state from the 
requirements of Subpart B that require the submittal of a CAA section 
111(d)/129 plan.\10\
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    \10\ 40 CFR 60.23(b).
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    EPA promulgated the HMIWI NSPS and emissions guidelines in 1997 and 
2009. The emissions guidelines are codified at 40 CFR part 60, subpart 
Ce. Thus, states were required to submit plans for incinerators subject 
to the HMIWI emissions guidelines pursuant to sections 111(d) and 129 
of the Act and Subpart B or negative declarations pursuant to 40 CFR 
60.23(b) and 62.06.\11\
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    \11\ 40 CFR 60.39e.
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III. State Submittal

    On January 3, 2020, in accordance with 40 CFR 70.4(i), South Dakota 
submitted a request for approval of title V program revisions to 
incorporate updated federal regulations through July 1, 2018, thereby 
aligning state rules in South Dakota's Administrative Rules of South 
Dakota (ARSD) with federal rules at 40 CFR part 70.\12\ Specifically, 
South Dakota requested this change to Chapter 74:36:05--Operating 
Permits for Part 70 Sources (sections 74:36:05:04(2) and (3), and 
74:36:05:16.01(4), (8), (9), (17) and (18)) and Chapter 74:36:13--
Continuous Emission Monitoring Systems (section 74:36:13:08).\13\ South 
Dakota's submittal included clean and redlined copies of the revised 
ARSD, which are available in the docket for this action. The submittal 
also included evidence that public notice of the State's proposed 
submittal ran in eleven South Dakota newspapers, that impacted sources 
and other interested parties were notified, and a public hearing was 
held on October 17, 2019.\14\ The State received no adverse public 
comments on the requested changes to 74:36:05 and 74:36:13.
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    \12\ See South Dakota 111d Package to EPA, p. 100, 120, 123-124, 
January 3, 2020 (public notice explaining purpose of the regulations 
and Proposed Amendments explaining requested changes).
    \13\ Letter from Hunter Roberts, Secretary, South Dakota 
Department of Environment and Natural Resources, to Gregory Sopkin, 
Regional Administrator, EPA Region 8, January 3, 2020. This letter 
contained multiple requests. In this action we are addressing only 
the request to revise South Dakota's title V operating permit 
program. See id. at p. 5-6.
    \14\ South Dakota 111d Package to EPA, p. 793-797.
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    On June 7, 2021, South Dakota submitted a negative declaration for 
the HMIWI emissions guidelines in accordance with CAA sections 111(d) 
and 129 and 40 CFR 60.23(b) and 62.06. The negative declaration 
certified that no incinerators subject to the HMIWI emissions 
guidelines and the requirements of sections 111(d) and 129 of the CAA 
exist in South Dakota. Specifically, South Dakota had one facility, 
located at the University of South Dakota, that was considered a co-
fired combustor under the HMIWI NSPS. The University of South Dakota 
disconnected the natural gas supply line to the incinerator in 2012 and 
requested that the incinerator be removed from its title V air quality 
operating permit in 2019.\15\ Therefore, South Dakota determined that 
there were no longer any sources subject to the HMIWI emissions 
guidelines.\16\
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    \15\ Letter from Brian Limoges, Assistant Vice President of 
Facilities Management, University of South Dakota, to Kyrik 
Rombough, South Dakota Department of Environment and Natural 
Resources, Re: Incinerator Permit 28.2201-19, July 13, 2019.
    \16\ Letter from Kyrik Rombough, South Dakota Department of 
Agriculture and Natural Resources, to Carl Daly, Acting Director of 
Air & Radiation Division, EPA Region 8, June 7, 2021.
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    On April 16, 2021, South Dakota's Office of Attorney General 
submitted a letter notifying EPA of the establishment of the South 
Dakota Department of Agriculture and Natural Resources (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 Department of Agriculture (DOA) and the South 
Dakota Department of Environment and Natural Resources (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).\17\ 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.\18\
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    \17\ 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.
    \18\ 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.
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    In the April 16, 2021 letter, 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 department.\19\
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    \19\ SD DANR Merger SIP Submittal, p. 27-28.
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    In a January 20, 2022 letter, the Secretary of the DANR, Hunter 
Roberts (the Governor's designee), 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 ARSD related to 
South Dakota's state implementation plan (SIP). Secretary Roberts 
stated that the ARSD provisions were automatically updated with the 
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 SIP 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

[[Page 30107]]

implemented under the previous department name.\20\
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    \20\ 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.
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IV. Final Action

    South Dakota submitted the necessary information for EPA to review 
the title V program revisions, the 111(d) negative declaration, and the 
non-substantive revisions to South Dakota's ARSD to reflect the merger 
of South Dakota's DOA with the DENR to form the new DANR. EPA is now 
acting to fully approve South Dakota's January 3, 2020 and January 20, 
2022 title V program revisions under 40 CFR 70.4(i). Specifically, we 
are approving changes to ARSD 74:36:05:04(2) and (3), 
74:36:05:16.01(4), (8), (9), (17) and (18), and 74:36:13:08 so that 
they align with federal regulations promulgated through July 1, 2018.
    In addition, we are approving the department name change to the 
DANR in South Dakota's title V program fees rule at ARSD 74:37:01:08. 
In its SIP submittal dated January 20, 2022, South Dakota inadvertently 
included this non-SIP provision. In a March 4, 2022 email, Kyrik 
Rombough, South Dakota's State Air Director, confirmed that ARSD 
74:37:01:08 contains the fee provision for the State's title V 
operating permit program and should be included in the update to the 
title V program.\21\ Thus, EPA is taking action to approve the change 
to ARSD 74:37:08 in this direct final rule. We are also updating 40 CFR 
part 70, appendix A to reference the January 3, 2020, and January 20, 
2022 requested revisions. We are also making an administrative update 
to 40 CFR part 70, appendix A to delete reference to the expiration of 
an outdated interim approval and instead include reference to our full 
approval of South Dakota's title V program in 1996.
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    \21\ 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.
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    EPA is also approving South Dakota's June 7, 2021 negative 
declaration certifying that no incinerators subject to the HMIWI 
emissions guidelines and the requirements of sections 111(d) and 129 of 
the CAA exist in South Dakota per CAA sections 111(d) and 129 and 40 
CFR 60.23(b) and 62.06. We are also updating 40 CFR part 62, subpart 
QQ, and 40 CFR part 62, subpart A. The negative declaration fulfills 
South Dakota's obligations under CAA sections 111(d) and 129. The 
submittal of this negative declaration exempts South Dakota from the 
requirement to submit a state plan for incinerators subject to the 
HMIWI emissions guidelines under 40 CFR part 60, subpart Ce.
    EPA is also changing ``Department of Environment and Natural 
Resources'' to ``Department of Agriculture and Natural Resources'' in 
40 CFR 60.4(b)(43) and changing ``Department of Water and Natural 
Resources'' to ``Department of Agriculture and Natural Resources'' in 
61.04(b)(43). These are non-substantive, administrative changes that 
reflect DANR's new name.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a state 
title V program submittal that complies with the provisions of the Act 
and applicable federal regulations; 40 CFR 70.4(i). Thus, in reviewing 
title V program submittals, EPA's role is to approve state choices, 
provided they meet the criteria of the CAA and the criteria, standards 
and procedures defined in 40 CFR part 70. The Administrator is also 
required by the CAA to approve a CAA section 111(d)/129 submission that 
complies with the provisions of the Act and applicable Federal 
regulations. 42 U.S.C. 7411(d); 42 U.S.C. 7429; 40 CFR part 60, 
subparts B and Ce; and 40 CFR part 62, subpart A. Accordingly, this 
action merely approves state law as meeting Federal 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);
     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, 
this action is not approved to apply in Indian country, as defined at 
18 U.S.C. 1151, or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. As such, this 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 July 18, 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

40 CFR Part 60

    Environmental protection, Administrative practice and procedure,

[[Page 30108]]

Air pollution control, Aluminum, Beverages, Carbon monoxide, Chemicals, 
Coal, Electric power plants, Fluoride, Gasoline, Glass and glass 
products, Grains, Greenhouse gases, Hazardous substances, Household 
appliances, Industrial facilities, Insulation, Intergovernmental 
relations, Iron, Labeling, Lead, Lime, Metals, Motor vehicle pollution, 
Natural gas, Nitrogen dioxide, Petroleum, Phosphate, Plastics materials 
and synthetics, Polymers, Reporting and recordkeeping requirements, 
Rubber and rubber products, Sewage disposal, Steel, Sulfur oxides, 
Vinyl, Volatile organic compounds, Waste treatment and disposal, Zinc.

40 CFR Part 61

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Arsenic, Asbestos, Benzene, Beryllium, Hazardous 
substances, Intergovernmental relations, Mercury, Radioactive 
materials, Radon, Reporting and recordkeeping requirements, Uranium, 
Vinyl chloride.

40 CFR Part 62

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Aluminum, Fertilizers, Fluoride, Industrial 
facilities, Intergovernmental relations, Methane, Ozone, Phosphate, 
Reporting and recordkeeping requirements, Sulfur oxides, Volatile 
organic compounds, Waste treatment and disposal.

40 CFR Part 70

    Environmental protection, Air pollution control, Intergovernmental 
relations, Title V.

    Dated: May 8, 2022.
KC Becker,
Regional Administrator, Region 8.
    40 CFR parts 60, 61, 62 and 70 are amended as follows:

PART 60--STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES

0
1. The authority citation for part 60 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq. 42 U.S.C. 7401-7601.

Subpart A--General Provisions

0
2. In Sec.  60.4, revise paragraph (b)(43) to read as follows:


Sec.  60.4  Address.

* * * * *
    (b) * * *
    (43) State of South Dakota, Air Quality Program, Department of 
Agriculture and Natural Resources, Joe Foss Building, 523 East Capitol, 
Pierre, SD 57501-3181.
* * * * *

PART 61--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS

0
3. The authority citation for part 61 continues to read as follows:

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

Subpart A-General Provisions

0
4. In Sec.  61.04, revise paragraph (b)(43) to read as follows:


Sec.  61.04  Address.

* * * * *
    (b) * * *
    (43) State of South Dakota, Department of Agriculture and Natural 
Resources, Air Quality Program, Joe Foss Building, 523 East Capitol, 
Pierre, SD 57501-3181.
* * * * *

PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED 
FACILITIES AND POLLUTANTS

0
5. The authority citation for part 62 continues to read as follows:

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

Subpart QQ--South Dakota

0
6. Revise Sec.  62.10360 to read as follows:


Sec.  62.10360  Identification of plan.

    The State of South Dakota submitted a letter on June 7, 2021, 
certifying that there are no designated facilities subject to the 
emissions guidelines for existing hospital medical infectious waste 
incinerators under 40 CFR part 60, subpart Ce, operating within the 
State's jurisdiction.


Sec. Sec.  62.10361 and 62.10362   [Removed]

0
7. Remove Sec. Sec.  62.10361 and 62.10362.

PART 70--STATE OPERATING PERMIT PROGRAMS

    The authority citation for part 70 continues to read as follows:

0
8. The authority citation for part 70 continues to read as follows:

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

0
9. In appendix A to part 70 the entry ``South Dakota'' is amended by 
revising paragraph (a) and adding paragraph (d) to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

South Dakota

    (a) South Dakota Department of Agriculture and Natural 
Resources: Submitted on November 12, 1993; full approval effective 
on February 28, 1996.
* * * * *
    (d) The State of South Dakota submitted operating permit program 
revisions on January 3, 2020 and January 22, 2022. On January 3, 
2020, South Dakota submitted for program approval revisions to the 
Administrative Rules of South Dakota, Chapters 74:36:05:04(2), 
74:36:05:04(3), 74:36:05:16.01(4), 74:36:05:16.01(8), 
74:36:05:16.01(9), 74:36:05:16.01(17), 74:36:05:16.01(18), and 
74:36:13:08. The state effective date of these revisions is November 
25, 2019. On January 22, 2022, South Dakota submitted for program 
approval revisions to Administrative Rules of South Dakota, Chapter 
74:37:01:08. The state effective date is April 19, 2021. The 
revisions are effective on July 18, 2022.
* * * * *
[FR Doc. 2022-10224 Filed 5-17-22; 8:45 am]
BILLING CODE 6560-50-P