Approval and Promulgation of Air Quality Implementation Plan; South Dakota; Revisions to New Source Review Rules, 72617-72622 [E7-24717]

Download as PDF Federal Register / Vol. 72, No. 245 / Friday, December 21, 2007 / Rules and Regulations (c) of this Ruling for calculating projected actual emissions. * * * * * 6. A ‘‘reasonable possibility’’ under paragraph IV.J of this Ruling occurs when the owner or operator calculates the project to result in either: (i) A projected actual emissions increase of at least 50 percent of the amount that is a ‘‘significant emissions increase,’’ as defined under paragraph II.A.23 of this Ruling (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant; or (ii) A projected actual emissions increase that, added to the amount of emissions excluded under paragraph II.A.24(ii)(c), sums to at least 50 percent of the amount that is a ‘‘significant emissions increase,’’ as defined under paragraph II.A.23 of this Ruling (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant. For a project for which a reasonable possibility occurs only within the meaning of paragraph IV.J.6(ii) of this Ruling, and not also within the meaning of paragraph IV.J.6(i) of this Ruling, then provisions IV.J.2 through IV.J.5 do not apply to the project. * * * * * (a) A projected actual emissions increase of at least 50 percent of the amount that is a ‘‘significant emissions increase,’’ as defined under paragraph (b)(40) of this section (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant; or (b) A projected actual emissions increase that, added to the amount of emissions excluded under paragraph (b)(41)(ii)(c) of this section, sums to at least 50 percent of the amount that is a ‘‘significant emissions increase,’’ as defined under paragraph (b)(40) of this section (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant. For a project for which a reasonable possibility occurs only within the meaning of paragraph (r)(6)(vi)(b) of this section, and not also within the meaning of paragraph (r)(6)(vi)(a) of this section, then provisions (r)(6)(ii) through (v) do not apply to the project. * * * * * [FR Doc. E7–24714 Filed 12–20–07; 8:45 am] PART 52—[AMENDED] BILLING CODE 6560–50–P 5. The authority citation for part 52 continues to read as follows: I ENVIRONMENTAL PROTECTION AGENCY Authority: 42 U.S.C. 7401, et seq. 40 CFR Part 52 Subpart A—[Amended] [EPA–R08–OAR–2006–0928; FRL–8509–4] 6. Section 52.21 is amended by revising paragraph (r)(6) introductory text and adding paragraph (r)(6)(vi) to read as follows: I Approval and Promulgation of Air Quality Implementation Plan; South Dakota; Revisions to New Source Review Rules sroberts on PROD1PC70 with RULES § 52.21 Prevention of significant deterioration of air quality. AGENCY: (r) * * * (6) Except as otherwise provided in paragraph (r)(6)(vi)(b) of this section, the provisions of this paragraph (r)(6) apply with respect to any regulated NSR pollutant emitted from projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility, within the meaning of paragraph (r)(6)(vi) of this section, that a project that is not a part of a major modification may result in a significant emissions increase of such pollutant, and the owner or operator elects to use the method specified in paragraphs (b)(41)(ii)(a) through (c) of this section for calculating projected actual emissions. * * * * * (vi) A ‘‘reasonable possibility’’ under paragraph (r)(6) of this section occurs when the owner or operator calculates the project to result in either: SUMMARY: EPA is approving revisions to Chapter 74:36:09 of the South Dakota Administrative Rules (Prevention of Significant Deterioration) for incorporation into the South Dakota State Implementation Plan (SIP). South Dakota adopted these rule revisions on August 29, 2006 and May 14, 2007, and submitted the requests for approval to EPA on September 1, 2006 and June 28, 2007. One rule provision that EPA had proposed to disapprove has been corrected by South Dakota. Therefore, EPA is also approving that provision. South Dakota was granted delegation of authority by EPA on July 6, 1994, to implement and enforce the federal Prevention of Significant Deterioration (PSD) permitting regulations. As part of this final rule EPA is rescinding South Dakota’s delegation of authority for implementing the federal PSD regulations. This action is being taken VerDate Aug<31>2005 18:20 Dec 20, 2007 Jkt 214001 Environmental Protection Agency (EPA). ACTION: Final rule. PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 72617 under section 110 of the Clean Air Act (CAA). DATES: Effective Date: This final rule is effective January 22, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA–R08–OAR–2006–0928. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (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 either electronically through www.regulations.gov or in hard copy at the Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202–1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Cindy Cody, Air and Radiation Program, U.S. Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202–1129, (303) 312–6228, cody.cynthia@epa.gov. SUPPLEMENTARY INFORMATION: Definitions For the purpose of this document, we are giving meaning to certain words or initials as follows: (i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise. (ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency. (iii) The initials SIP mean or refer to State Implementation Plan. (iv) The words State or South Dakota mean the State of South Dakota, unless the context indicates otherwise. Table of Contents I. What is being addressed in this document? II. What are the changes that EPA is approving? III. What were the comments received and EPA’s response? IV. What action is EPA taking? V. Statutory and Executive Order Reviews I. What is being addressed in this document? Chapter 74:36:09 was submitted to EPA for inclusion in the State E:\FR\FM\21DER1.SGM 21DER1 72618 Federal Register / Vol. 72, No. 245 / Friday, December 21, 2007 / Rules and Regulations Implementation Plan (SIP) by the South Dakota Department of Environment and Natural Resources (DENR) on September 1, 2006. Chapter 74:36:09 relates to the Prevention of Significant Deterioration (PSD) permit program of the State of South Dakota. Revisions to Chapter 74:36:09 were adopted by the South Dakota Board Interim Rules Committee on August 29, 2006. EPA proposed on February 1, 2007 (72 FR 4671) to partially approve and partially disapprove Chapter 74:36:09 (Prevention of Significant Deterioration) of the Administrative Rules of South Dakota under section 110 of the CAA.1 Comments were received on our February 2007 proposal (see discussion in section III. below). Subsequent to the public comment period, South Dakota revised 74:36:09:02, adopted May 14, 2007, to address EPA’s concern (see Section II) and submitted the revised provision to EPA on June 28, 2007. After considering the comments received, EPA is finalizing its approval of Chapter 74:36:09, including the now-corrected provision that EPA had proposed to disapprove. EPA is also rescinding its delegation to South Dakota of the federal PSD regulations. sroberts on PROD1PC70 with RULES II. What are the changes that EPA is approving? EPA is approving a revision to South Dakota’s SIP that incorporates by reference the federal PSD requirements, found at 40 CFR 52.21, into the State’s SIP. The revision to the South Dakota Administrative Rules Chapter 74:36:09 incorporates by reference the provisions of 40 CFR 52.21, as they exist on July 1, 2005, with the exceptions noted below. South Dakota did not incorporate by reference those sections of the federal rules that do not apply to State activities or are reserved for the Administrator of the EPA. These sections are 40 CFR 52.21(a)(1) (plan disapproval), 52.21(q) (public participation), 52.21(s) (environmental impact statements), 52.21(t) (disputed permit or redesignations), and 52.21(u) (delegation of authority). South Dakota did not incorporate by reference provisions for Clean Units and Pollution Control Project (PCPs). These provisions were vacated by a June 24, 2005, ruling by the United States Court of Appeals for the District of Columbia Circuit. References to Clean Units and PCPs were removed by EPA from Federal regulation on June 13, 2007 (see 1 Our proposal notice discusses EPA’s December 31, 2002 NSR Reform rules and the provisions that have subsequently been clarified, and vacated and remanded by the courts. VerDate Aug<31>2005 18:20 Dec 20, 2007 Jkt 214001 72 FR 32526). In addition, South Dakota did not incorporate by reference the provisions for equipment replacement (40 CFR 52.21(cc)), which were stayed indefinitely by a court order on December 24, 2003, and subsequently vacated. See, New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006). Therefore, the following federal provisions found in 40 CFR 52.21 are not incorporated by reference in Chapter 74:36:09: 40 CFR 52.21(x), 52.21(y), 52.21(z), 52.21(cc), 52.21(a)(2)(iv)(e), the second sentence of 52.21(a)(2)(iv)(f), 52.21(a)(2)(vi), 52.21(b)(2)(iii)(h), 52.21(b)(3)(iii)(b), 52.21(b)(3)(vi)(d), 52.21(b)(32), 52.21(b)(42), (b)(55), (b)(56), (b)(57), (b)(58), and the phrase ‘‘other than projects at a Clean Unit or at a source with a PAL’’ in 40 CFR 52.21(r)(6). The phrase ‘‘reasonable possibility’’ used in the federal rule at 40 CFR 52.21(r)(6) limits the recordkeeping provisions to modifications at facilities that use the actual-to-future-actual methodology to calculate emissions changes and that may have a ‘‘reasonable possibility’’ of a significant emissions increase. The South Dakota rule does incorporate by reference the phrase ‘‘reasonable possibility’’ as it is used at 40 CFR 52.21(r)(6). On March 8, 2007, EPA published a proposed rule in response to the D.C. Circuit Court’s remand of the recordkeeping provisions of EPA’s 2002 NSR Reform Rules (see 72 FR 10445), but EPA has not yet made a final decision with regard to the remand. Therefore, EPA may need to take further action on this portion of South Dakota’s PSD rule. At this time, however, South Dakota’s recordkeeping provisions are as stringent as the federal requirements, and are therefore, approvable. The South Dakota incorporation by reference describes the circumstances in which the term ‘‘Administrator’’ continues to mean the EPA Administrator and when it means the Secretary of the South Dakota DENR instead. South Dakota rule 74:36:09:02(1) identifies the following provisions in Chapter 74:36:09 where the term ‘‘Administrator’’ continues to mean the Administrator of EPA: 40 CFR 52.21(b)(17), 52.21(b)(37)(i), 52.21(b)(43), 52.21(b)(48)(ii)(c), 52.21(b)(50)(i), 52.21(g)(1) to 52.21(g)(6), 52.21(l)(2), and 52.21(p)(2). As submitted on September 1, 2006, this list did not include 40 CFR 52.21(p)(2), and under South Dakota’s PSD rule, the term ‘‘Administrator’’ in 40 CFR 52.21(p)(2) referred to the Secretary of the DENR. This was inconsistent with EPA’s determination that 40 CFR 52.21(p)(2) must still refer to the Administrator of PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 EPA, and EPA proposed to disapprove the incorporation by reference of 40 CFR 52.21(p)(2). On June 28, 2007, South Dakota submitted to EPA a revision of Chapter 74:36:09, effective June 13, 2007, that added 40 CFR 52.21(p)(2) to the list of provisions in Chapter 74:36:09 where the term ‘‘Administrator’’ continues to mean the Administrator of EPA. Therefore, EPA is approving the incorporation by reference of 40 CFR 52.21(p)(2) as part of the approval of Chapter 74:36:09. As noted above, South Dakota did not incorporate by reference 40 CFR 52.21(q) (public participation). South Dakota has instead incorporated by reference 40 CFR 51.166(q) (public participation) at 74:36:09:03. The regulations at 40 CFR 51.166 are what a SIP must contain for EPA to approve a PSD permit program, and generally mirror the federal PSD regulations at 40 CFR 52.21. In addition, South Dakota added in 74:36:09:03 six additional provisions that revise 40 CFR 51.166(q) in order to make the PSD permit public participation requirements specific to South Dakota. The requirements included in South Dakota’s PSD program, as specified in Chapter 74:36:09, are substantively the same as the federal PSD provisions due to South Dakota’s incorporation of the federal rules by reference. EPA reviewed the revisions South Dakota made to 40 CFR 52.21 and 40 CFR 51.166 noted above and found them to be as stringent as the federal rules. EPA has, therefore, determined that the revisions are consistent with the program requirements for the preparation, adoption, and submittal of implementation plans for the Prevention of Significant Deterioration of Air Quality, as set forth at 40 CFR 51.166, and are approvable as part of the South Dakota SIP. III. What were the comments received and EPA’s response? EPA received three comment letters on our February 1, 2007 (72 FR 4671) proposal. Two commenters supported, and one commenter opposed, our proposed action. We have considered the comments received and we are generally finalizing our action as proposed. Following is a summary of the comments. A. Two commenters support the inclusion of Chapter 74:36:09 Prevention of Significant Deterioration into the South Dakota State Implementation Plan. Response: EPA acknowledges receipt of the comments and agrees with the commenters. E:\FR\FM\21DER1.SGM 21DER1 sroberts on PROD1PC70 with RULES Federal Register / Vol. 72, No. 245 / Friday, December 21, 2007 / Rules and Regulations B. One commenter submitted comments opposing our proposed partial approval and supporting our proposed partial disapproval of the inclusion of Chapter 74:36:09 Prevention of Significant Deterioration into the South Dakota State Implementation Plan. 1. The commenter stated that our proposed approval ‘‘appears to be a thinly-veiled attempt by the state to rollback critical public health and environmental safeguards in South Dakota by substituting a delegated program with a more lax stateadministered program’’ and that ‘‘the proposed changes would eliminate the public’s opportunity to obtain review of a PSD permit by the U.S. Environmental Protection Agency’s Environmental Appeals Board and remove the automatic stay provision that provides the public with an opportunity to obtain review of a permit before construction commences.’’ Response: Federal regulations specify the parameters that state-administered programs must meet and these regulations help ensure that public health and safety safeguards remain in place with the transition from a federal to a state program. Regulations at 40 CFR 51.166 set forth the criteria for PSD program approvals that EPA applies. EPA has determined that South Dakota’s PSD rules meet these criteria. As discussed above, South Dakota’s rules satisfy the public participation criteria in 40 CFR 51.166(q). Since these minimum criteria are satisfied, we have no grounds to conclude that South Dakota’s SIP approved program will be less rigorous than the federal permitting program that the State currently administers through a delegation. Although permits issued under SIP approved programs are not subject to appeal to EPA’s Environmental Appeals Board, such actions are instead subject to the opportunities for review and appeal provided under state law. We interpret the statute and regulations to require at minimum an opportunity for state judicial review of PSD permits. See, 61 FR 1880, 1882 (Jan. 24, 1996). South Dakota has specified procedures for contesting a final PSD permit determination and requesting an administrative hearing at Chapter 74:09 of the South Dakota Administrative Rules (Contested Case Procedure). These procedures are referenced in 74:36:09:03 (Public participation). South Dakota law also provides for the right to judicial review of contested cases (SDCL 1–26– 30). We, thus, have no grounds to deny PSD program approval based on the nature of review of final permit decisions under South Dakota law. VerDate Aug<31>2005 18:20 Dec 20, 2007 Jkt 214001 2. The commenter stated that the proposed approval ‘‘appears to be an attempt to reduce U.S. EPA’s obligation to protect endangered and threatened species in South Dakota.’’ The commenter noted that the Endangered Species Act (ESA) applies to EPA’s proposal to approve to South Dakota’s PSD permit program such that EPA ‘‘must determine whether this proposed action—approving major changes to the South Dakota PSD permit program— may affect any listed species’’ and ‘‘consult with the [U.S. Fish and Wildlife Service] prior to transferring air permitting authority to the State of South Dakota.’’ In addition, the commenter stated that EPA ‘‘must structure its approval * * * in such a manner as to preserve the agency’s duties to protect and restore listed species and their habitat.’’ Response: EPA disagrees with the commenter. EPA’s approval of the South Dakota permitting program into the SIP is not an attempt to reduce ESA requirements in connection with PSD permitting in the State. As a practical matter, EPA has not carried out ESA consultation requirements in its prior approvals of PSD permitting programs for other states. Moreover, under relevant CAA provisions, states are entitled to administer approved PSD permitting programs, and EPA is required to approve a state’s program that satisfies applicable CAA requirements. The CAA SIP approval authority does not provide the Agency with the discretion to refrain from taking the action of approving the South Dakota PSD permit program if it meets all applicable CAA requirements. Accordingly, and as confirmed by recent Supreme Court precedent, the ESA requirements cited in the comments do not apply to EPA’s decision to approve South Dakota’s PSD permitting program into the SIP. See 50 CFR 402.03; National Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007). Section 7(a)(2) of the ESA generally requires federal agencies to consult with the relevant federal wildlife agencies to ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of federallylisted endangered or threatened species, or result in the destruction or adverse modification of designated critical habitat of such species. 16 U.S.C. 1536(a)(2). In accordance with relevant ESA implementing regulations, this requirement applies only to actions in which there is discretionary federal involvement or control. 50 CFR 402.03. In the Defenders of Wildlife case, the Supreme Court examined these PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 72619 provisions in the context of EPA’s decision to approve a state permitting program under the Clean Water Act (CWA). In that case, the Court held that when a federal agency is required by statute to undertake a particular action once certain specified triggering events have occurred, there is no relevant agency discretion, and thus the requirements of ESA section 7(a)(2) do not apply. 127 S. Ct. at 2536. With regard to EPA’s transfer of CWA permitting authority to a state, the Court found that because the relevant CWA provision mandated that EPA ‘‘shall approve’’ a state permitting program if a list of CWA statutory criteria are met, EPA lacked the discretion to deny a transfer application that satisfied those criteria. Id. at 2531–32. The Court also found that the relevant CWA program approval criteria did not include consideration of endangered or threatened species, and stated that ‘‘[n]othing in the text of [the relevant CWA provision] authorizes EPA to consider the protection of threatened or endangered species as an end in itself when evaluating [an] application’’ to transfer a permitting program to a state. Id. at 2537. Accordingly, the Court held that the CWA required EPA to approve the state’s permitting program if the statutory criteria were met; those criteria did not include the consideration of ESA-protected species; and thus, consistent with 50 CFR 402.03, the nondiscretionary action to transfer CWA permitting authority to the state did not trigger relevant ESA section 7 requirements. Similar to the CWA program approval provision at issue in Defenders of Wildlife, section 110(k)(3) of the CAA mandates that EPA ‘‘shall approve’’ a SIP submittal that meets applicable CAA requirements. 42 U.S.C. 7410(k)(3). The CAA provides a list of SIP submittal criteria in section 110. See 42 U.S.C. 7410(a)(2). With respect to SIP submittals involving PSD permitting program applications, the relevant program approval criteria are found in the general CAA provisions regarding the PSD program, Title I, Part C, and EPA’s relevant regulations implementing those provisions, 40 CFR 51.166. See 42 U.S.C. 7410 (a)(2)(J). As was the case with the CWA requirements in Defenders of Wildlife, the SIP requirements contained in section 110 of the CAA do not include protection of listed species, and neither Title I, Part C of the CAA nor EPA’s PSD implementing regulations explicitly state that consideration of the impacts on listed species is a required factor in PSD permitting decisions. EPA has interpreted sections 169(3) and E:\FR\FM\21DER1.SGM 21DER1 sroberts on PROD1PC70 with RULES 72620 Federal Register / Vol. 72, No. 245 / Friday, December 21, 2007 / Rules and Regulations 165(e)(3)(B) of the CAA as providing EPA with the relevant discretion to carry out ESA section 7(a)(2) obligations during its review of individual applications for federally-issued PSD permits under section 165. See, In re: Indeck-Elwood, LLC, PSD Appeal No. 03–04 (EAB Sept. 27, 2006), slip. op at 108 (holding EPA has discretion to consider impacts to listed species in Best Available Control Technology and soils and vegetation analysis). However, the use of this discretion in individual PSD permitting decisions does not provide EPA similar discretion in its SIP approval decisions under section 110. In issuing individual PSD permits, EPA is required to complete an environmental impacts analysis in the best available control technology determination of CAA section 169(3) and an additional impacts analysis, including impacts on soils and vegetation, under section 165(e)(3)(B) of the CAA. In carrying out these analyses, EPA has interpreted these provisions as affording the Agency discretion to determine whether listed species are impacted by individual federal PSD permitting decision. In contrast, EPA’s action on state SIP submittals is governed by section 110 of the CAA, which unequivocally directs EPA to approve state plans meeting applicable CAA requirements. Section 110 does not provide for similar impact analyses in reviewing PSD SIP submittals. Thus, although EPA’s approval of an individual federal PSD permit and its approval of a state PSD permitting program both involve PSD, they are entirely different actions arising under different provisions of the CAA. An ESA obligation triggered by one provision of the statute—consideration of ESA in individual federal PSD permitting decisions—cannot be bootstrapped to raise that obligation in another provision—approval of a PSD SIP submittal—that does not provide EPA with similar discretion. See generally Defenders of Wildlife (finding that while EPA undertakes ESA consultation when issuing individual federal NPDES permits, it was not required to do so in approving state NPDES permitting programs). EPA recognizes that it exercises some judgment when evaluating whether a SIP submittal meets specific statutory PSD criteria. However, as the Supreme Court held in Defenders of Wildlife, the use of such judgment does not allow the Agency ‘‘the discretion to add another entirely separate prerequisite’’—such as the ESA section 7(a)(2) consultation requirements—to the list of required criteria EPA considers when VerDate Aug<31>2005 18:20 Dec 20, 2007 Jkt 214001 determining whether it ‘‘shall approve’’ a state permitting program. 127 S. Ct. at 2537. Applying the reasoning of Defenders of Wildlife, ESA consultation obligations do not apply to EPA’s approval of South Dakota’s PSD permit program, because the SIP approval criteria contained in the CAA do not provide EPA with the discretionary authority to consider whether approval of the State PSD permitting program into the SIP may affect any listed species. EPA has determined that the State has submitted a SIP for a PSD program that satisfies all of the applicable SIP requirements contained in section 110 of the CAA, as well as the applicable PSD requirements found in CAA Title I, Part C, and 40 CFR 51.166. Thus, given this Supreme Court precedent and applicable regulations, see 50 CFR 402.03, EPA is without discretion to disapprove or condition the State’s program based on concerns for listed species, and the ESA requirements cited by the commenter are thus inapplicable to this approval action. 3. The commenter ‘‘supports U.S. EPA disapproving SD’s attempt to have the state conduct the necessary consultation with a Federal Land Manager when a proposed source may impact a class 1 area.’’ Response: EPA’s proposed disapproval concerned only the narrow issue of the Federal Land Manager’s (FLM) responsibility to consult with the EPA Administrator under 40 CFR 51.166(p)(2). See EPA’s February 1, 2007 Notice of Proposed Rule (72 FR 4673) for additional discussion of this issue. On June 28, 2007, South Dakota submitted to EPA a revision of Chapter 74:36:09, effective June 13, 2007, that added 40 CFR 52.21(p)(2) to the list of provisions incorporated in Chapter 74:36:09 where the term ‘‘Administrator’’ continues to mean the Administrator of EPA. Therefore, in South Dakota, an FLM will continue to have the responsibility to consider, in consultation with the EPA, whether a proposed source or modification in South Dakota will have an adverse impact on air quality related values (including visibility). This is consistent with 40 CFR 51.166(p)(2). EPA is approving the incorporation by reference of 40 CFR 52.21(p)(2) as part of the approval of Chapter 74:36:09. However, the State will have the responsibility to consider and respond to the FLM’s analysis under the procedures set forth in sections 40 CFR 52.21(p)(3)–(8). In accordance with 40 CFR 51.166(p)(3) and 165(d)(2)(C)(ii) of the CAA, when there is no projected PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 violation of the PSD increments, the FLM bears the burden of demonstrating to the satisfaction of the state permitting authority that a project will have an adverse impact on air quality related values. IV. What action is EPA taking? We are approving the inclusion of Administrative Rules of South Dakota, Chapter 74:36:09, Prevention of Significant Deterioration, into the South Dakota SIP, including 74:36:09:02’s incorporation of 40 CFR 52.21(p)(2). Additionally, EPA is rescinding its delegation of the PSD regulations to South Dakota. V. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a ‘‘significant regulatory action’’ and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely E:\FR\FM\21DER1.SGM 21DER1 72621 Federal Register / Vol. 72, No. 245 / Friday, December 21, 2007 / Rules and Regulations approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 ‘‘Protection of Children from Environmental Health Risks and Safety Risks’’ (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). State citation * 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 rule 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 19, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: December 12, 2007. Stephen S. Tuber, Acting Regional Administrator, Region 8. 40 CFR part 52 is amended to read as follows: I PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: I Authority: 42 U.S.C. 7401 et seq. Subpart QQ—South Dakota 2. In § 52.2170, the table in paragraph (c) is amended by adding a new entry for chapter 74:36:09 after the existing entry for 74:36:07 to read as follows: I 74:36:09:01 ................. * * * 74:36:09 Prevention of Significant Deterioration Applicability .......................................................................... 9/18/06 74:36:09:01.01 ............ Prevention of significant deterioration permit required ........ 9/18/06 74:36:09:02 ................. Prevention of significant deterioration .................................. 6/13/07 74:36:09:03 ................. Public participation ............................................................... 9/18/06 * EPA approval date and citation1 State effective date Title/subject * * * * * Explanations * [Insert Federal Register page number where the document begins and date] [Insert Federal Register page number where the document begins and date] [Insert Federal Register page number where the document begins and date] [Insert Federal Register page number where the document begins and date] * * * 1 sroberts on PROD1PC70 with RULES In order to determine the EPA effective date for a specific provision that is listed in this table, consult the Federal Register cited in this column for that particular provision. 3. Section 52.2178 is amended by revising paragraphs (a) and (b) to read as follows and by deleting paragraph (c): I VerDate Aug<31>2005 18:20 Dec 20, 2007 Jkt 214001 § 52.2178 quality. Significant deterioration of air (a) The South Dakota plan, as submitted, is approved as meeting the requirements of part C, subpart 1 of the PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 CAA, except that it does not apply to sources proposing to construct on Indian reservations; (b) Regulations for preventing significant deterioration of air quality. E:\FR\FM\21DER1.SGM 21DER1 72622 Federal Register / Vol. 72, No. 245 / Friday, December 21, 2007 / Rules and Regulations The provisions of § 52.21 except paragraph (a)(1) are hereby incorporated and made a part of the South Dakota State implementation plan and are applicable to proposed major stationary sources or major modifications to be located on Indian reservations. * * * * * [FR Doc. E7–24717 Filed 12–20–07; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA–HQ–OPP–2007–0029; FRL–8342–3] I. General Information Glufosinate-ammonium; Pesticide Tolerance Environmental Protection Agency (EPA). ACTION: Final rule. sroberts on PROD1PC70 with RULES AGENCY: SUMMARY: This regulation modifies the tolerances for the combined residues of glufosinate-ammonium and its metabolites expressed as butanoic acid in or on raw agricultural commodities. Bayer CropScience LLC requested this revision under the Federal Food, Drug, and Cosmetic Act (FFDCA). DATES: This regulation is effective December 21, 2007. Objections and requests for hearings must be received on or before February 19, 2008 and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION). ADDRESSES: EPA has established a docket for this action under docket identification (ID) number EPA–HQ– OPP–2007–0029. To access the electronic docket, go to http:// www.regulations.gov, select ‘‘Advanced Search,’’ then ‘‘Docket Search.’’ Insert the docket ID number where indicated and select the ‘‘Submit’’ button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (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 in the electronic docket at http://www.regulations.gov, or, if only available in hard copy, at the OPP VerDate Aug<31>2005 18:20 Dec 20, 2007 Jkt 214001 Regulatory Public Docket in Rm. S– 4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is (703) 305– 5805. FOR FURTHER INFORMATION CONTACT: Kathryn V. Montague, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (703) 305–1243; e-mail address: montague.kathryn@epa.gov. SUPPLEMENTARY INFORMATION: A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT. B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this Federal Register document through the electronic docket at http:// www.regulations.gov, you may access this Federal Register document electronically through the EPA Internet under the ‘‘Federal Register’’ listings at PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 http://www.epa.gov/fedrgstr. You may also access a frequently updated electronic version of EPA’s tolerance regulations at 40 CFR part 180 through the Government Printing Office’s pilot e-CFR site at http://www.gpoaccess.gov/ ecfr. C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ– OPP–2007–0029 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before February 19, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA– HQ–OPP–2007–0029, by one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the on-line instructions for submitting comments. • Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001. • Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S–4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket’s normal hours of operation 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305–5805. II. Petition for Tolerance In the Federal Register of February 28, 2007 (72 FR 9000) (FRL–8115–5), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6F7161) by Bayer CropScience LLC, 2 T.W. Alexander Dr., E:\FR\FM\21DER1.SGM 21DER1

Agencies

[Federal Register Volume 72, Number 245 (Friday, December 21, 2007)]
[Rules and Regulations]
[Pages 72617-72622]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-24717]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2006-0928; FRL-8509-4]


Approval and Promulgation of Air Quality Implementation Plan; 
South Dakota; Revisions to New Source Review Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to Chapter 74:36:09 of the South 
Dakota Administrative Rules (Prevention of Significant Deterioration) 
for incorporation into the South Dakota State Implementation Plan 
(SIP). South Dakota adopted these rule revisions on August 29, 2006 and 
May 14, 2007, and submitted the requests for approval to EPA on 
September 1, 2006 and June 28, 2007. One rule provision that EPA had 
proposed to disapprove has been corrected by South Dakota. Therefore, 
EPA is also approving that provision. South Dakota was granted 
delegation of authority by EPA on July 6, 1994, to implement and 
enforce the federal Prevention of Significant Deterioration (PSD) 
permitting regulations. As part of this final rule EPA is rescinding 
South Dakota's delegation of authority for implementing the federal PSD 
regulations. This action is being taken under section 110 of the Clean 
Air Act (CAA).

DATES: Effective Date: This final rule is effective January 22, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2006-0928. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (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 either 
electronically through www.regulations.gov or in hard copy at the Air 
and Radiation Program, Environmental Protection Agency (EPA), Region 8, 
1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if 
at all possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Cindy Cody, Air and Radiation Program, 
U.S. Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6228, cody.cynthia@epa.gov.

SUPPLEMENTARY INFORMATION: 

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or South Dakota mean the State of South 
Dakota, unless the context indicates otherwise.

Table of Contents

I. What is being addressed in this document?
II. What are the changes that EPA is approving?
III. What were the comments received and EPA's response?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. What is being addressed in this document?

    Chapter 74:36:09 was submitted to EPA for inclusion in the State

[[Page 72618]]

Implementation Plan (SIP) by the South Dakota Department of Environment 
and Natural Resources (DENR) on September 1, 2006. Chapter 74:36:09 
relates to the Prevention of Significant Deterioration (PSD) permit 
program of the State of South Dakota. Revisions to Chapter 74:36:09 
were adopted by the South Dakota Board Interim Rules Committee on 
August 29, 2006. EPA proposed on February 1, 2007 (72 FR 4671) to 
partially approve and partially disapprove Chapter 74:36:09 (Prevention 
of Significant Deterioration) of the Administrative Rules of South 
Dakota under section 110 of the CAA.\1\ Comments were received on our 
February 2007 proposal (see discussion in section III. below). 
Subsequent to the public comment period, South Dakota revised 
74:36:09:02, adopted May 14, 2007, to address EPA's concern (see 
Section II) and submitted the revised provision to EPA on June 28, 
2007. After considering the comments received, EPA is finalizing its 
approval of Chapter 74:36:09, including the now-corrected provision 
that EPA had proposed to disapprove. EPA is also rescinding its 
delegation to South Dakota of the federal PSD regulations.
---------------------------------------------------------------------------

    \1\ Our proposal notice discusses EPA's December 31, 2002 NSR 
Reform rules and the provisions that have subsequently been 
clarified, and vacated and remanded by the courts.
---------------------------------------------------------------------------

II. What are the changes that EPA is approving?

    EPA is approving a revision to South Dakota's SIP that incorporates 
by reference the federal PSD requirements, found at 40 CFR 52.21, into 
the State's SIP. The revision to the South Dakota Administrative Rules 
Chapter 74:36:09 incorporates by reference the provisions of 40 CFR 
52.21, as they exist on July 1, 2005, with the exceptions noted below.
    South Dakota did not incorporate by reference those sections of the 
federal rules that do not apply to State activities or are reserved for 
the Administrator of the EPA. These sections are 40 CFR 52.21(a)(1) 
(plan disapproval), 52.21(q) (public participation), 52.21(s) 
(environmental impact statements), 52.21(t) (disputed permit or 
redesignations), and 52.21(u) (delegation of authority).
    South Dakota did not incorporate by reference provisions for Clean 
Units and Pollution Control Project (PCPs). These provisions were 
vacated by a June 24, 2005, ruling by the United States Court of 
Appeals for the District of Columbia Circuit. References to Clean Units 
and PCPs were removed by EPA from Federal regulation on June 13, 2007 
(see 72 FR 32526). In addition, South Dakota did not incorporate by 
reference the provisions for equipment replacement (40 CFR 52.21(cc)), 
which were stayed indefinitely by a court order on December 24, 2003, 
and subsequently vacated. See, New York v. EPA, 443 F.3d 880 (D.C. Cir. 
2006). Therefore, the following federal provisions found in 40 CFR 
52.21 are not incorporated by reference in Chapter 74:36:09: 40 CFR 
52.21(x), 52.21(y), 52.21(z), 52.21(cc), 52.21(a)(2)(iv)(e), the second 
sentence of 52.21(a)(2)(iv)(f), 52.21(a)(2)(vi), 52.21(b)(2)(iii)(h), 
52.21(b)(3)(iii)(b), 52.21(b)(3)(vi)(d), 52.21(b)(32), 52.21(b)(42), 
(b)(55), (b)(56), (b)(57), (b)(58), and the phrase ``other than 
projects at a Clean Unit or at a source with a PAL'' in 40 CFR 
52.21(r)(6).
    The phrase ``reasonable possibility'' used in the federal rule at 
40 CFR 52.21(r)(6) limits the recordkeeping provisions to modifications 
at facilities that use the actual-to-future-actual methodology to 
calculate emissions changes and that may have a ``reasonable 
possibility'' of a significant emissions increase. The South Dakota 
rule does incorporate by reference the phrase ``reasonable 
possibility'' as it is used at 40 CFR 52.21(r)(6). On March 8, 2007, 
EPA published a proposed rule in response to the D.C. Circuit Court's 
remand of the recordkeeping provisions of EPA's 2002 NSR Reform Rules 
(see 72 FR 10445), but EPA has not yet made a final decision with 
regard to the remand. Therefore, EPA may need to take further action on 
this portion of South Dakota's PSD rule. At this time, however, South 
Dakota's recordkeeping provisions are as stringent as the federal 
requirements, and are therefore, approvable.
    The South Dakota incorporation by reference describes the 
circumstances in which the term ``Administrator'' continues to mean the 
EPA Administrator and when it means the Secretary of the South Dakota 
DENR instead. South Dakota rule 74:36:09:02(1) identifies the following 
provisions in Chapter 74:36:09 where the term ``Administrator'' 
continues to mean the Administrator of EPA: 40 CFR 52.21(b)(17), 
52.21(b)(37)(i), 52.21(b)(43), 52.21(b)(48)(ii)(c), 52.21(b)(50)(i), 
52.21(g)(1) to 52.21(g)(6), 52.21(l)(2), and 52.21(p)(2). As submitted 
on September 1, 2006, this list did not include 40 CFR 52.21(p)(2), and 
under South Dakota's PSD rule, the term ``Administrator'' in 40 CFR 
52.21(p)(2) referred to the Secretary of the DENR.
    This was inconsistent with EPA's determination that 40 CFR 
52.21(p)(2) must still refer to the Administrator of EPA, and EPA 
proposed to disapprove the incorporation by reference of 40 CFR 
52.21(p)(2). On June 28, 2007, South Dakota submitted to EPA a revision 
of Chapter 74:36:09, effective June 13, 2007, that added 40 CFR 
52.21(p)(2) to the list of provisions in Chapter 74:36:09 where the 
term ``Administrator'' continues to mean the Administrator of EPA. 
Therefore, EPA is approving the incorporation by reference of 40 CFR 
52.21(p)(2) as part of the approval of Chapter 74:36:09.
    As noted above, South Dakota did not incorporate by reference 40 
CFR 52.21(q) (public participation). South Dakota has instead 
incorporated by reference 40 CFR 51.166(q) (public participation) at 
74:36:09:03. The regulations at 40 CFR 51.166 are what a SIP must 
contain for EPA to approve a PSD permit program, and generally mirror 
the federal PSD regulations at 40 CFR 52.21. In addition, South Dakota 
added in 74:36:09:03 six additional provisions that revise 40 CFR 
51.166(q) in order to make the PSD permit public participation 
requirements specific to South Dakota.
    The requirements included in South Dakota's PSD program, as 
specified in Chapter 74:36:09, are substantively the same as the 
federal PSD provisions due to South Dakota's incorporation of the 
federal rules by reference. EPA reviewed the revisions South Dakota 
made to 40 CFR 52.21 and 40 CFR 51.166 noted above and found them to be 
as stringent as the federal rules. EPA has, therefore, determined that 
the revisions are consistent with the program requirements for the 
preparation, adoption, and submittal of implementation plans for the 
Prevention of Significant Deterioration of Air Quality, as set forth at 
40 CFR 51.166, and are approvable as part of the South Dakota SIP.

III. What were the comments received and EPA's response?

    EPA received three comment letters on our February 1, 2007 (72 FR 
4671) proposal. Two commenters supported, and one commenter opposed, 
our proposed action. We have considered the comments received and we 
are generally finalizing our action as proposed. Following is a summary 
of the comments.
    A. Two commenters support the inclusion of Chapter 74:36:09 
Prevention of Significant Deterioration into the South Dakota State 
Implementation Plan.
    Response: EPA acknowledges receipt of the comments and agrees with 
the commenters.

[[Page 72619]]

    B. One commenter submitted comments opposing our proposed partial 
approval and supporting our proposed partial disapproval of the 
inclusion of Chapter 74:36:09 Prevention of Significant Deterioration 
into the South Dakota State Implementation Plan.
    1. The commenter stated that our proposed approval ``appears to be 
a thinly-veiled attempt by the state to rollback critical public health 
and environmental safeguards in South Dakota by substituting a 
delegated program with a more lax state-administered program'' and that 
``the proposed changes would eliminate the public's opportunity to 
obtain review of a PSD permit by the U.S. Environmental Protection 
Agency's Environmental Appeals Board and remove the automatic stay 
provision that provides the public with an opportunity to obtain review 
of a permit before construction commences.''
    Response: Federal regulations specify the parameters that state-
administered programs must meet and these regulations help ensure that 
public health and safety safeguards remain in place with the transition 
from a federal to a state program. Regulations at 40 CFR 51.166 set 
forth the criteria for PSD program approvals that EPA applies. EPA has 
determined that South Dakota's PSD rules meet these criteria. As 
discussed above, South Dakota's rules satisfy the public participation 
criteria in 40 CFR 51.166(q). Since these minimum criteria are 
satisfied, we have no grounds to conclude that South Dakota's SIP 
approved program will be less rigorous than the federal permitting 
program that the State currently administers through a delegation.
    Although permits issued under SIP approved programs are not subject 
to appeal to EPA's Environmental Appeals Board, such actions are 
instead subject to the opportunities for review and appeal provided 
under state law. We interpret the statute and regulations to require at 
minimum an opportunity for state judicial review of PSD permits. See, 
61 FR 1880, 1882 (Jan. 24, 1996). South Dakota has specified procedures 
for contesting a final PSD permit determination and requesting an 
administrative hearing at Chapter 74:09 of the South Dakota 
Administrative Rules (Contested Case Procedure). These procedures are 
referenced in 74:36:09:03 (Public participation). South Dakota law also 
provides for the right to judicial review of contested cases (SDCL 1-
26-30). We, thus, have no grounds to deny PSD program approval based on 
the nature of review of final permit decisions under South Dakota law.
    2. The commenter stated that the proposed approval ``appears to be 
an attempt to reduce U.S. EPA's obligation to protect endangered and 
threatened species in South Dakota.'' The commenter noted that the 
Endangered Species Act (ESA) applies to EPA's proposal to approve to 
South Dakota's PSD permit program such that EPA ``must determine 
whether this proposed action--approving major changes to the South 
Dakota PSD permit program--may affect any listed species'' and 
``consult with the [U.S. Fish and Wildlife Service] prior to 
transferring air permitting authority to the State of South Dakota.'' 
In addition, the commenter stated that EPA ``must structure its 
approval * * * in such a manner as to preserve the agency's duties to 
protect and restore listed species and their habitat.''
    Response: EPA disagrees with the commenter. EPA's approval of the 
South Dakota permitting program into the SIP is not an attempt to 
reduce ESA requirements in connection with PSD permitting in the State. 
As a practical matter, EPA has not carried out ESA consultation 
requirements in its prior approvals of PSD permitting programs for 
other states. Moreover, under relevant CAA provisions, states are 
entitled to administer approved PSD permitting programs, and EPA is 
required to approve a state's program that satisfies applicable CAA 
requirements. The CAA SIP approval authority does not provide the 
Agency with the discretion to refrain from taking the action of 
approving the South Dakota PSD permit program if it meets all 
applicable CAA requirements. Accordingly, and as confirmed by recent 
Supreme Court precedent, the ESA requirements cited in the comments do 
not apply to EPA's decision to approve South Dakota's PSD permitting 
program into the SIP. See 50 CFR 402.03; National Ass'n of Home 
Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007).
    Section 7(a)(2) of the ESA generally requires federal agencies to 
consult with the relevant federal wildlife agencies to ensure that 
actions they authorize, fund, or carry out are not likely to jeopardize 
the continued existence of federally-listed endangered or threatened 
species, or result in the destruction or adverse modification of 
designated critical habitat of such species. 16 U.S.C. 1536(a)(2). In 
accordance with relevant ESA implementing regulations, this requirement 
applies only to actions in which there is discretionary federal 
involvement or control. 50 CFR 402.03. In the Defenders of Wildlife 
case, the Supreme Court examined these provisions in the context of 
EPA's decision to approve a state permitting program under the Clean 
Water Act (CWA). In that case, the Court held that when a federal 
agency is required by statute to undertake a particular action once 
certain specified triggering events have occurred, there is no relevant 
agency discretion, and thus the requirements of ESA section 7(a)(2) do 
not apply. 127 S. Ct. at 2536.
    With regard to EPA's transfer of CWA permitting authority to a 
state, the Court found that because the relevant CWA provision mandated 
that EPA ``shall approve'' a state permitting program if a list of CWA 
statutory criteria are met, EPA lacked the discretion to deny a 
transfer application that satisfied those criteria. Id. at 2531-32. The 
Court also found that the relevant CWA program approval criteria did 
not include consideration of endangered or threatened species, and 
stated that ``[n]othing in the text of [the relevant CWA provision] 
authorizes EPA to consider the protection of threatened or endangered 
species as an end in itself when evaluating [an] application'' to 
transfer a permitting program to a state. Id. at 2537. Accordingly, the 
Court held that the CWA required EPA to approve the state's permitting 
program if the statutory criteria were met; those criteria did not 
include the consideration of ESA-protected species; and thus, 
consistent with 50 CFR 402.03, the non-discretionary action to transfer 
CWA permitting authority to the state did not trigger relevant ESA 
section 7 requirements.
    Similar to the CWA program approval provision at issue in Defenders 
of Wildlife, section 110(k)(3) of the CAA mandates that EPA ``shall 
approve'' a SIP submittal that meets applicable CAA requirements. 42 
U.S.C. 7410(k)(3). The CAA provides a list of SIP submittal criteria in 
section 110. See 42 U.S.C. 7410(a)(2). With respect to SIP submittals 
involving PSD permitting program applications, the relevant program 
approval criteria are found in the general CAA provisions regarding the 
PSD program, Title I, Part C, and EPA's relevant regulations 
implementing those provisions, 40 CFR 51.166. See 42 U.S.C. 7410 
(a)(2)(J).
    As was the case with the CWA requirements in Defenders of Wildlife, 
the SIP requirements contained in section 110 of the CAA do not include 
protection of listed species, and neither Title I, Part C of the CAA 
nor EPA's PSD implementing regulations explicitly state that 
consideration of the impacts on listed species is a required factor in 
PSD permitting decisions. EPA has interpreted sections 169(3) and

[[Page 72620]]

165(e)(3)(B) of the CAA as providing EPA with the relevant discretion 
to carry out ESA section 7(a)(2) obligations during its review of 
individual applications for federally-issued PSD permits under section 
165. See, In re: Indeck-Elwood, LLC, PSD Appeal No. 03-04 (EAB Sept. 
27, 2006), slip. op at 108 (holding EPA has discretion to consider 
impacts to listed species in Best Available Control Technology and 
soils and vegetation analysis). However, the use of this discretion in 
individual PSD permitting decisions does not provide EPA similar 
discretion in its SIP approval decisions under section 110.
    In issuing individual PSD permits, EPA is required to complete an 
environmental impacts analysis in the best available control technology 
determination of CAA section 169(3) and an additional impacts analysis, 
including impacts on soils and vegetation, under section 165(e)(3)(B) 
of the CAA. In carrying out these analyses, EPA has interpreted these 
provisions as affording the Agency discretion to determine whether 
listed species are impacted by individual federal PSD permitting 
decision. In contrast, EPA's action on state SIP submittals is governed 
by section 110 of the CAA, which unequivocally directs EPA to approve 
state plans meeting applicable CAA requirements. Section 110 does not 
provide for similar impact analyses in reviewing PSD SIP submittals. 
Thus, although EPA's approval of an individual federal PSD permit and 
its approval of a state PSD permitting program both involve PSD, they 
are entirely different actions arising under different provisions of 
the CAA. An ESA obligation triggered by one provision of the statute--
consideration of ESA in individual federal PSD permitting decisions--
cannot be bootstrapped to raise that obligation in another provision--
approval of a PSD SIP submittal--that does not provide EPA with similar 
discretion. See generally Defenders of Wildlife (finding that while EPA 
undertakes ESA consultation when issuing individual federal NPDES 
permits, it was not required to do so in approving state NPDES 
permitting programs). EPA recognizes that it exercises some judgment 
when evaluating whether a SIP submittal meets specific statutory PSD 
criteria. However, as the Supreme Court held in Defenders of Wildlife, 
the use of such judgment does not allow the Agency ``the discretion to 
add another entirely separate prerequisite''--such as the ESA section 
7(a)(2) consultation requirements--to the list of required criteria EPA 
considers when determining whether it ``shall approve'' a state 
permitting program. 127 S. Ct. at 2537.
    Applying the reasoning of Defenders of Wildlife, ESA consultation 
obligations do not apply to EPA's approval of South Dakota's PSD permit 
program, because the SIP approval criteria contained in the CAA do not 
provide EPA with the discretionary authority to consider whether 
approval of the State PSD permitting program into the SIP may affect 
any listed species. EPA has determined that the State has submitted a 
SIP for a PSD program that satisfies all of the applicable SIP 
requirements contained in section 110 of the CAA, as well as the 
applicable PSD requirements found in CAA Title I, Part C, and 40 CFR 
51.166. Thus, given this Supreme Court precedent and applicable 
regulations, see 50 CFR 402.03, EPA is without discretion to disapprove 
or condition the State's program based on concerns for listed species, 
and the ESA requirements cited by the commenter are thus inapplicable 
to this approval action.
    3. The commenter ``supports U.S. EPA disapproving SD's attempt to 
have the state conduct the necessary consultation with a Federal Land 
Manager when a proposed source may impact a class 1 area.''
    Response: EPA's proposed disapproval concerned only the narrow 
issue of the Federal Land Manager's (FLM) responsibility to consult 
with the EPA Administrator under 40 CFR 51.166(p)(2). See EPA's 
February 1, 2007 Notice of Proposed Rule (72 FR 4673) for additional 
discussion of this issue. On June 28, 2007, South Dakota submitted to 
EPA a revision of Chapter 74:36:09, effective June 13, 2007, that added 
40 CFR 52.21(p)(2) to the list of provisions incorporated in Chapter 
74:36:09 where the term ``Administrator'' continues to mean the 
Administrator of EPA. Therefore, in South Dakota, an FLM will continue 
to have the responsibility to consider, in consultation with the EPA, 
whether a proposed source or modification in South Dakota will have an 
adverse impact on air quality related values (including visibility). 
This is consistent with 40 CFR 51.166(p)(2).
    EPA is approving the incorporation by reference of 40 CFR 
52.21(p)(2) as part of the approval of Chapter 74:36:09. However, the 
State will have the responsibility to consider and respond to the FLM's 
analysis under the procedures set forth in sections 40 CFR 52.21(p)(3)-
(8). In accordance with 40 CFR 51.166(p)(3) and 165(d)(2)(C)(ii) of the 
CAA, when there is no projected violation of the PSD increments, the 
FLM bears the burden of demonstrating to the satisfaction of the state 
permitting authority that a project will have an adverse impact on air 
quality related values.

IV. What action is EPA taking?

    We are approving the inclusion of Administrative Rules of South 
Dakota, Chapter 74:36:09, Prevention of Significant Deterioration, into 
the South Dakota SIP, including 74:36:09:02's incorporation of 40 CFR 
52.21(p)(2). Additionally, EPA is rescinding its delegation of the PSD 
regulations to South Dakota.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely

[[Page 72621]]

approves a state rule implementing a Federal standard, and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA. This rule also is not subject 
to Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because 
it approves a state rule implementing a Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 rule 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 19, 2008. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: December 12, 2007.
Stephen S. Tuber,
Acting Regional Administrator, Region 8.

0
40 CFR part 52 is amended to read as follows:

PART 52--[AMENDED]

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, the table in paragraph (c) is amended by adding a 
new entry for chapter 74:36:09 after the existing entry for 74:36:07 to 
read as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 State           EPA  approval date and
          State citation                        Title/subject               effective date             citation\1\                   Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
                                                    74:36:09 Prevention of Significant Deterioration
74:36:09:01......................  Applicability..........................         9/18/06  [Insert Federal Register page
                                                                                             number where the document
                                                                                             begins and date]
74:36:09:01.01...................  Prevention of significant deterioration         9/18/06  [Insert Federal Register page
                                    permit required.                                         number where the document
                                                                                             begins and date]
74:36:09:02......................  Prevention of significant deterioration         6/13/07  [Insert Federal Register page
                                                                                             number where the document
                                                                                             begins and date]
74:36:09:03......................  Public participation...................         9/18/06  [Insert Federal Register page
                                                                                             number where the document
                                                                                             begins and date]
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ In order to determine the EPA effective date for a specific provision that is listed in this table, consult the Federal Register cited in this
  column for that particular provision.


0
3. Section 52.2178 is amended by revising paragraphs (a) and (b) to 
read as follows and by deleting paragraph (c):


Sec.  52.2178  Significant deterioration of air quality.

    (a) The South Dakota plan, as submitted, is approved as meeting the 
requirements of part C, subpart 1 of the CAA, except that it does not 
apply to sources proposing to construct on Indian reservations;
    (b) Regulations for preventing significant deterioration of air 
quality.

[[Page 72622]]

The provisions of Sec.  52.21 except paragraph (a)(1) are hereby 
incorporated and made a part of the South Dakota State implementation 
plan and are applicable to proposed major stationary sources or major 
modifications to be located on Indian reservations.
* * * * *
[FR Doc. E7-24717 Filed 12-20-07; 8:45 am]
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