Approval and Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient Air Quality Standards; South Dakota, 27622-27629 [2011-11723]
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Federal Register / Vol. 76, No. 92 / Thursday, May 12, 2011 / Proposed Rules
Appendices to Margin Requirements for
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Comment Period—Commission Voting
Summary and Statements of
Commissioners
Appendix 1—Commission Voting
Summary
On this matter, Chairman Gensler and
Commissioners Dunn, Sommers,
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affirmative; no Commissioner voted in
the negative.
[FR Doc. 2011–10880 Filed 5–11–11; 8:45 am]
BILLING CODE 6351–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2011–0142; FRL–9304–3]
Approval and Promulgation of Air
Quality Implementation Plans;
Maryland; Adoption of Control
Techniques Guidelines for Large
Appliance Coatings
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA proposes to approve the
State Implementation Plan (SIP)
revision submitted by the State of
Maryland. This SIP revision includes
amendments to Maryland’s regulation
for Volatile Organic Compounds from
Specific Processes and meets the
requirement to adopt Reasonably
Available Control Technology (RACT)
for sources covered by EPA’s Control
Techniques Guidelines (CTG) standards
for large appliance coatings. These
amendments will reduce emissions of
volatile organic compound (VOC)
emissions from large appliance coating
facilities. In the Final Rules section of
this Federal Register, EPA is approving
the State’s SIP submittal as a direct final
rule without prior proposal because the
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no adverse comments are
received in response to this action, no
further activity is contemplated. If EPA
receives adverse comments, the direct
final rule will be withdrawn and all
public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period.
Any parties interested in commenting
on this action should do so at this time.
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SUMMARY:
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Comments must be received in
writing by June 13, 2011.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R03–OAR–2011–0142, by one of the
following methods:
A. www.regulations.gov. Follow the
on-line instructions for submitting
comments.
B. E-mail:
fernandez.cristina@epa.gov.
C. Mail: EPA–R03–OAR–2011–0142,
Cristina Fernandez, Associate Director,
Office of Air Program Planning,
Mailcode 3AP30, U.S. Environmental
Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania
19103.
D. Hand Delivery: At the previously
listed EPA Region III address. Such
deliveries are only accepted during the
Docket’s normal hours of operation, and
special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–R03–OAR–2011–
0142. EPA’s policy is that all comments
received will be included in the public
docket without change, and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or e-mail. The www.regulations.gov
website is an anonymous access system,
which means EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an e-mail
comment directly to EPA without going
through www.regulations.gov, your email address will be automatically
captured and included as part of the
comment that is placed in the public
docket and made available on the
Internet. If you submit an electronic
comment, EPA recommends that you
include your name and other contact
information in the body of your
comment and with any disk or CD–ROM
you submit. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment. Electronic files should avoid
the use of special characters, any form
of encryption, and be free of any defects
or viruses.
Docket: All documents in the
electronic docket are listed in the
www.regulations.gov index. Although
listed in the index, some information is
DATES:
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not publicly available, i.e., 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 in www.regulations.gov or
in hard copy during normal business
hours at the Air Protection Division,
U.S. Environmental Protection Agency,
Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
Copies of the State submittal are
available at the Maryland Department of
the Environment, 1800 Washington
Boulevard, Suite 705, Baltimore,
Maryland 21230.
FOR FURTHER INFORMATION CONTACT:
Gregory Becoat, (215) 814–2036, or by
e-mail at becoat.gregory@epa.gov.
SUPPLEMENTARY INFORMATION: For
further information, please see the
information provided in the direct final
action, with the same title, ‘‘Approval
and Promulgation of Air Quality
Implementation Plans; Maryland;
Adoption of Control Techniques
Guidelines for Large Appliance
Coatings,’’ that is located in the ‘‘Rules
and Regulations’’ section of this Federal
Register publication.
Dated: April 26, 2011.
James W. Newsom,
Acting Regional Administrator, Region III.
[FR Doc. 2011–11558 Filed 5–11–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2010–0301; FRL–9304–7]
Approval and Promulgation of State
Implementation Plan Revisions;
Infrastructure Requirements for the
1997 8-Hour Ozone National Ambient
Air Quality Standards; South Dakota
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to approve
the State Implementation Plan (SIP)
submission from the State of South
Dakota to demonstrate that the SIP
meets the requirements of section
110(a)(1) and (2) of the Clean Air Act
(CAA) for the National Ambient Air
Quality Standards (NAAQS)
promulgated for ozone on July 18, 1997.
Section 110(a)(1) of the CAA requires
that each state, after a new or revised
NAAQS is promulgated, review their
SUMMARY:
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Federal Register / Vol. 76, No. 92 / Thursday, May 12, 2011 / Proposed Rules
SIPs to ensure that they meet the
requirements of the ‘‘infrastructure
elements’’ of section 110(a)(2). The State
of South Dakota submitted a
certification of their Infrastructure SIP
for the 1997 ozone NAAQS, dated
February 1, 2008, which was
determined to be complete on March 27,
2008 (73 FR 16205). EPA does not
propose to act on the State’s February 1,
2008 submission to meet the
requirements of section 110(a)(2)(D)(i) of
the CAA, relating to interstate transport
of air pollution, for the 1997 ozone
NAAQS. EPA approved the State’s
interstate transport SIP submission on
May 8, 2008 (73 FR 26019).
DATES: Written comments must be
received on or before June 13, 2011.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2010–0301, by one of the
following methods:
• https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
• E-mail: dolan.kathy@epa.gov.
• Fax: (303) 312–6064 (please alert
the individual listed in the FOR FURTHER
INFORMATION CONTACT if you are faxing
comments).
• Mail: Director, Air Program,
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129.
• Hand Delivery: Director, Air
Program, Environmental Protection
Agency (EPA), Region 8, Mail Code 8P–
AR, 1595 Wynkoop Street, Denver,
Colorado 80202–1129. Such deliveries
are only accepted Monday through
Friday, 8 a.m. to 4:30 p.m., excluding
Federal holidays. Special arrangements
should be made for deliveries of boxed
information.
Instructions: Direct your comments to
Docket ID No. EPA–R08–OAR–2010–
0301. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
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to EPA, without going through https://
www.regulations.gov your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
For additional instructions on
submitting comments, go to section I,
General Information, of the
SUPPLEMENTARY INFORMATION section of
this document.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the Air 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:
Kathy Dolan, Air Program, U.S.
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129. 303–312–6142,
dolan.kathy@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.
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(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.
Table of Contents
I. General Information
II. Background
III. What Infrastructure elements are required
under sections 110(a)(1) and (2)?
IV. How did the State of South Dakota
address the infrastructure elements of
Sections 110(a)(1) and (2)?
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews
I. General Information
What should I consider as I prepare my
comments for EPA?
1. Submitting Confidential Business
Information (CBI). Do not submit CBI to
EPA through https://www.regulations.gov
or e-mail. Clearly mark the part or all of
the information that you claim to be
CBI. For CBI information on a disk or
CD–ROM that you mail to EPA, mark
the outside of the disk or CD–ROM as
CBI and then identify electronically
within the disk or CD–ROM the specific
information that is claimed as CBI. In
addition to one complete version of the
comment that includes information
claimed as CBI, a copy of the comment
that does not contain the information
claimed as CBI must be submitted for
inclusion in the public docket.
Information so marked will not be
disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for preparing your comments.
When submitting comments, remember
to:
Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register, date, and page number);
Follow directions and organize your
comments;
Explain why you agree or disagree;
Suggest alternatives and substitute
language for your requested changes;
Describe any assumptions and
provide any technical information and/
or data that you used;
If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced;
Provide specific examples to illustrate
your concerns, and suggest alternatives;
Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats; and,
Make sure to submit your comments
by the comment period deadline
identified.
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II. Background
On July 18, 1997, EPA promulgated a
new NAAQS for ozone based on 8-hour
average concentrations. The 8-hour
averaging period replaced the previous
1-hour averaging period, and the level of
the NAAQS was changed from 0.12
parts per million (ppm) to 0.08 ppm (62
FR 38856). By statute, SIPs meeting the
requirements of sections 110(a)(1) and
(2) are to be submitted by states within
three years after promulgation of a new
or revised standard. Section 110(a)(2)
provides basic requirements for SIPs,
including emissions inventories,
monitoring, and modeling, to assure
attainment and maintenance of the
standards. These requirements are set
out in several ‘‘infrastructure elements,’’
listed in section 110(a)(2).
Section 110(a) imposes the obligation
upon states to make a SIP submission to
EPA for a new or revised NAAQS, and
the contents of that submission may
vary depending upon the facts and
circumstances. In particular, the data
and analytical tools available at the time
the state develops and submits the SIP
for a new or revised NAAQS affects the
content of the submission. The contents
of such SIP submission may also vary
depending upon what provisions the
state’s existing SIP already contains. In
the case of the 1997 ozone NAAQS,
states typically have met the basic
program elements required in section
110(a)(2) through earlier SIP
submissions in connection with
previous NAAQS.
In a guidance issued on October 2,
2007, EPA noted that, to the extent an
existing SIP already meets the section
110(a)(2) requirements, states need only
certify that fact via a letter to EPA.1
On 3/27/08, EPA published a final
rulemaking entitled, ‘‘Completeness
Findings for section 110(a) State
Implementation Plans; 8-hour Ozone
NAAQS’’ (73 FR 16205). In the rule, EPA
made a finding for each state that it had
submitted or failed to submit a complete
SIP that provided the basic program
elements of section 110(a)(2) necessary
to implement the 1997 8-hour ozone
NAAQS. In particular, EPA found that
the State of South Dakota had submitted
a complete SIP to meet these
requirements.
1 Memorandum
from William T. Harnett,
Director, Air Quality Policy Division, ‘‘Guidance on
SIP Elements Required Under Sections 110(a)(1)
and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards’’ (Oct. 2,
2007).
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III. What infrastructure elements are
required under Section 110(a)(1) and
(2)?
Section 110(a)(1) provides the
procedural and timing requirements for
SIP submissions after a new or revised
NAAQS is promulgated. Section
110(a)(2) lists specific elements the SIP
must contain or satisfy. These
infrastructure elements include
requirements such as modeling,
monitoring, and emissions inventories,
which are designed to assure attainment
and maintenance of the NAAQS. The
elements that are the subject of this
action are listed below.
• 110(a)(2)(A): Emission limits and
other control measures.
• 110(a)(2)(B): Ambient air quality
monitoring/data system.
• 110(a)(2)(C): Program for
enforcement of control measures.
• 110(a)(2)(D)(ii): Interstate and
international pollution.
• 110(a)(2)(E): Adequate resources
and authority.
• 110(a)(2)(F): Stationary source
monitoring and reporting.
• 110(a)(2)(G): Emergency powers.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(J): Consultation with
government officials; public
notification; and prevention of
significant deterioration (PSD) and
visibility protection.
• 110(a)(2)(K): Air quality modeling/
data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/
participation by affected local entities.
A detailed discussion of each of these
elements is contained in the next
section.
Two elements identified in section
110(a)(2) are not governed by the threeyear submission deadline of section
110(a)(1) and are therefore not
addressed in this action. These elements
relate to part D of Title I of the CAA, and
submissions to satisfy them are not due
within three years after promulgation of
a new or revised NAAQS, but rather are
due at the same time nonattainment area
plan requirements are due under section
172. The two elements are: (i) Section
110(a)(2)(C) to the extent it refers to
permit programs (known as
‘‘nonattainment new source review
(NSR)’’) required under part D, and (ii)
section 110(a)(2)(I) pertaining to the
nonattainment planning requirements of
part D. As a result, this action does not
address infrastructure elements related
to the nonattainment NSR portion of
section 110(a)(2)(C) or related to
110(a)(2)(I).
This action also does not address the
‘‘interstate transport’’ requirements of
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element 110(a)(2)(D)(i). In a separate
action, EPA approved the State’s
submission to meet the requirements of
110 (a)(2)(D)(i) for the 1997 ozone
NAAQS (73 FR 26019).
IV. How did the State of South Dakota
address the elements of the
infrastructure provisions of Section
110(a)(2)?
1. Emission limits and other control
measures: Section 110(a)(2)(A) requires
SIPs to include enforceable emission
limitations and other control measures,
means, or techniques (including
economic incentives such as fees,
marketable permits, and auctions of
emissions rights), as well as schedules
and timetables for compliance as may be
necessary or appropriate to meet the
applicable requirements of this Act.
a. South Dakota’s response to this
requirement: The rules in the
Administrative Rules of South Dakota
(ARSD) Chapter 74:36:04 (Operating
permits for minor sources), 74:36:05
(Operating permits for part 70 sources),
74:35:06 (Regulated air pollutant
emissions), 74:36:07 (New source
performance standards), 74:36:08
(National emission standards for
hazardous air pollutants), 74:36:09
(Prevention of significant deterioration),
and 74:36:10 (New source review)
provide enforceable emission limits and
other control measures, means or
techniques, schedules for compliance
and other related matters necessary to
maintain South Dakota in attainment
with the federal NAAQS. Authority to
promulgate these rules is contained in
South Dakota Codified Laws (SDCL)
34A–1–1, 34A–1–6, 34A–1–18, 34A–1–
19.
b. EPA analysis: South Dakota’s SIP
meets the requirements of CAA section
110(a)(2)(A) for the 1997 ozone NAAQS,
subject to the following clarifications.
First, this infrastructure element does
not require the submittal of regulations
or emission limitations developed
specifically for attaining the 1997 ozone
NAAQS. Furthermore, South Dakota has
no areas designated as nonattainment
for the 1997 ozone NAAQS. As a result,
the South Dakota SIP contains no
emissions limitations specific to ozone
and/or its precursors. Instead, South
Dakota regulates emissions of ozone and
its precursors through its SIP-approved
major and minor source permitting
programs.2 This suffices, in the case of
2 Certain rules cited by South Dakota—its title V
program (ARSD 74:36:05), new source performance
standards (ARSD 74:36:07), and national emissions
standards for hazardous air pollutants (ARSD
74:36:08)—are not required for inclusion into South
Dakota’s SIP and are therefore not considered by
EPA in this action.
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South Dakota, to meet the requirements
of section 110(a)(2)(A) for the 1997
ozone NAAQS.
Second, in this action, EPA is not
proposing to approve or disapprove any
existing state rules with regard to
director’s discretion or variance
provisions. A number of states have
such provisions which are contrary to
the CAA and existing EPA guidance (52
FR 45109, Nov. 24, 1987), and the
Agency plans to take action in the future
to address such state regulations. In the
meantime, EPA encourages any state
having a director’s discretion or
variance provision which is contrary to
the CAA and EPA guidance to take steps
to correct the deficiency as soon as
possible.
Finally, in this action, EPA is also not
proposing to approve or disapprove any
existing SIP provisions with regard to
excess emissions during startup,
shutdown, or malfunction (SSM) of
operations at a facility. A number of
states have SSM provisions which are
contrary to the CAA and existing EPA
guidance 3 and the Agency plans to
address such state regulations in the
future. In the meantime, EPA
encourages any state having a deficient
SSM provision to take steps to correct
it as soon as possible.
2. Ambient air quality monitoring/
data system: Section 110(a)(2)(B)
requires SIPs to provide for
establishment and operation of
appropriate devices, methods, systems,
and procedures necessary to (i) monitor,
compile, and analyze data on ambient
air quality, and (ii) upon request, make
such data available to the
Administrator.
a. South Dakota’s response to this
requirement: The rules in ARSD
74:36:02 define the goals, NAAQS, air
monitoring methods and monitoring
requirements provided for
establishment and operation of ambient
air quality monitors, collecting and
analyzing ambient air quality data and
making these data available to EPA.
Authority used to promulgate these
rules is contained in SDCL 34A–1–6 and
34A–1–15.
b. EPA analysis: South Dakota’s air
monitoring programs and data systems
meet the requirements of CAA section
110(a)(2)(B) for the 1997 ozone NAAQS.
The South Dakota Department of
Environment and Natural Resources
3 Steven Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and
Robert Perciasepe, Assistant Administrator for Air
and Radiation, Memorandum to EPA Air Division
Directors, ‘‘State Implementation Plans (SIPs):
Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown.’’ (Sept. 20,
1999).
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(DENR) 2008 Ambient Air Monitoring
Annual Network Plan was approved by
EPA Region 8 on March 23, 2009.
3. Program for enforcement of control
measures: Section 110(a)(2)(C) requires
SIPs to include a program to provide for
the enforcement of the measures
described in subparagraph (A), and
regulation of the modification and
construction of any stationary source
within the areas covered by the plan as
necessary to assure that NAAQS are
achieved, including a permit program as
required in parts C and D.
a. South Dakota’s response to this
requirement: SDCL 34A–1–39 through
34A–1–54 and 34A–1–62 provides
DENR with the authority to provide
enforcement of all South Dakota SIP
measures and the regulations under
ARSD Chapter 74:36:09 (Prevention of
significant deterioration) and 74:36:10
(New source review).
b. EPA analysis: As explained above,
in this action EPA is not evaluating nonattainment related provisions, such as
the nonattainment New Source Review
(NSR) program required by part D of the
Act. In addition, South Dakota has no
nonattainment areas for the 1997 ozone
NAAQS and is therefore not required at
this point to have a corresponding
nonattainment NSR program. In this
action, EPA is evaluating the State’s
PSD program as required by part C of
the Act, and the State’s minor NSR
program as required by 110(a)(2)(C).
South Dakota’s SIP-approved PSD
program incorporates by reference (with
certain exceptions) the federal PSD
program in 40 CFR 52.21 as of July 1,
2005 (72 FR 72617). As described in our
notice of approval of the program (72 FR
72617), South Dakota’s PSD program
met the general requirements of CAA
section 110(a)(2)(C) as of that date.
Greenhouse Gas Regulation
EPA notes a potential inconsistency
between South Dakota’s February 1,
2008 infrastructure SIP certification and
EPA’s recently promulgated rule,
‘‘Limitation of Approval of Prevention of
Significant Deterioration Provisions
Concerning Greenhouse Gas EmittingSources in State Implementation Plans’’
(‘‘PSD SIP Narrowing Rule’’), 75 FR
82536 (Dec. 30, 2010). In the PSD SIP
Narrowing Rule, EPA withdrew its
previous approval of South Dakota’s
PSD program to the extent that it
applied PSD permitting to greenhouse
gas (GHG) emissions increases from
GHG-emitting sources below thresholds
set in EPA’s June 3, 2010 ‘‘Prevention of
Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule’’
(‘‘Tailoring Rule’’), 75 FR 31514. EPA
withdrew its approval on the basis that
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the State lacked sufficient resources to
issue PSD permits to such sources at the
statutory thresholds in effect in the
previously-approved PSD program.
After the PSD SIP Narrowing Rule, the
portion of South Dakota’s PSD SIP from
which EPA withdrew its approval had
the status of having been submitted to
EPA but not yet acted upon. In its
February 1, 2008 certification, South
Dakota relied on its PSD program as
approved at that date—which was
before December 30, 2010, the effective
date of the PSD SIP Narrowing Rule—
to satisfy the requirements of
infrastructure element 110(a)(2)(C).
Given EPA’s basis for the PSD SIP
Narrowing Rule, EPA proposes approval
of the South Dakota infrastructure SIP
for infrastructure element (C) if either
the State clarifies (or modifies) its
certification to make clear that the State
relies only on the portion of the PSD
program that remains approved after the
PSD SIP Narrowing Rule issued on
December 30, 2010, and for which the
State has sufficient resources to
implement, or the State acts to
withdraw from EPA consideration the
remaining portion of its PSD program
submission that would have applied
PSD permitting to GHG sources below
the Tailoring Rule thresholds. In the
alternative, if South Dakota does not
take either action, EPA proposes to
disapprove the infrastructure SIP to the
extent it incorporates that portion of the
previously-approved PSD program from
which EPA withdrew its approval in the
PSD SIP Narrowing Rule, which is the
portion which would have applied PSD
permitting requirements to GHG
emissions increases from GHG-emitting
sources below the Tailoring Rule
thresholds. Such disapproval, if
finalized, would not result in a need for
South Dakota to resubmit a SIP revision,
sanctions, or a federal implementation
plan (FIP).
Regulation of Ozone Precursors
In order for South Dakota’s SIPapproved PSD program to satisfy the
requirements of section 110(a)(2)(C) for
the 1997 ozone NAAQS, the program
must also properly regulate ozone
precursors. On November 29, 2005, EPA
promulgated the phase 2
implementation rule for the 1997 ozone
NAAQS, which includes requirements
for PSD programs to treat nitrogen
oxides as a precursor for ozone (72 FR
71612). The phase 2 implementation
rule accordingly updated the federal
program at 40 CFR 52.21 to meet these
requirements, effective January 30,
2006. This effective date is after the July
1, 2005 date of incorporation of 40 CFR
52.21 by the currently approved South
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Dakota SIP. In other words, South
Dakota’s current SIP-approved PSD
program does not meet the requirements
of the phase 2 ozone implementation
rule.
On June 14, 2010, the State submitted
to EPA a SIP revision that (among other
things) revises ARSD 74:36:09
(Prevention of significant deterioration)
to incorporate by reference the federal
PSD program in 40 CFR 52.21 as of July
1, 2009. As a result of the revised
incorporation date, the submitted PSD
program meets the requirements of the
phase 2 ozone implementation rule.
EPA therefore proposes to concurrently
approve the portion of the June 14, 2010
submission revising ARSD 74:36:09,
with the following exception.
Consistent with the Tailoring Rule,
the SIP PSD Narrowing Rule, and the
discussion above, EPA proposes to
disapprove the revision of ARSD
74:36:09 in the June 14, 2010
submission to the extent that the
revision applies PSD permitting to GHG
emissions increases from GHG-emitting
sources below Tailoring Rule
thresholds. The Tailoring Rule modified
the federal PSD program at 40 CFR
52.21, effective August 2, 2010, to
incorporate the Tailoring Rule
thresholds.4 75 FR at 31606–07. This
effective date is after July 1, 2009, the
date of incorporation of 40 CFR 52.21 in
South Dakota’s June 14, 2010
submission. Therefore, in order to
ensure consistency with the Tailoring
Rule and the PSD SIP Narrowing Rule,
it is necessary for EPA to propose to
disapprove the revision to the extent it
applies PSD permitting to GHG
emissions increases from GHG-emitting
sources below Tailoring Rule
thresholds. As mentioned above, this
disapproval will not result in a need for
South Dakota to submit a SIP revision,
sanctions, or a FIP.
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Minor New Source Review
The State has a SIP-approved minor
NSR program, adopted under section
110(a)(2)(C) of the Act, which regulates
emissions of ozone and its precursors.
On September 6, 1995, EPA approved
extensive changes to the State’s minor
NSR program for incorporation into the
SIP, and there was at the time no
objection to the provisions of this
program (60 FR 46222). Since then, the
State and EPA have relied on the
existing State minor NSR program to
assure that new and modified sources
not captured by the major NSR
4 Note that this is the effective date of the
modification of 52.21, not the initial date of
applicability of the thresholds, which was January
2, 2011.
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permitting programs do not interfere
with attainment and maintenance of the
NAAQS.
In this action, EPA is proposing to
approve South Dakota’s infrastructure
SIP for the 1997 ozone NAAQS with
respect to the general requirement in
section 110(a)(2)(C) to include a
program in the SIP that regulates the
modification and construction of any
stationary source as necessary to assure
that the NAAQS are achieved. EPA is
not proposing to approve or disapprove
the State’s existing minor NSR program
itself to the extent that it is inconsistent
with EPA’s regulations governing this
program. A number of states may have
minor NSR provisions that are contrary
to the existing EPA regulations for this
program. EPA intends to work with
states to reconcile state minor NSR
programs with EPA’s regulatory
provisions for the program. The
statutory requirements of section
110(a)(2)(C) provide for considerable
flexibility in designing minor NSR
programs, and it may be time to revisit
the regulatory requirements for this
program to give the states an
appropriate level of flexibility to design
a program that meets their particular air
quality concerns, while assuring
reasonable consistency across the
country in protecting the NAAQS with
respect to new and modified minor
sources.
4. Interstate transport: Section
110(a)(2)(D)(i) requires SIPs to contain
adequate provisions prohibiting,
consistent with the provisions of this
title, any source or other type of
emissions activity within the state from
emitting any air pollutant in amounts
which will (I) contribute significantly to
nonattainment in, or interfere with
maintenance by, any other state, with
respect to any such national primary or
secondary ambient air quality standard,
or (II) interfere with measures required
to be included in the applicable
implementation plan for any other state
under part C to prevent significant
deterioration of air quality or to protect
visibility.
a. South Dakota’s response to this
requirement: South Dakota submitted its
Interstate Transport SIP to EPA on May
25, 2007.
b. EPA Analysis: EPA approved the
State’s Interstate Transport provisions
for the 1997 ozone NAAQS on May 8,
2008 (73 FR 26019). EPA is taking no
action relevant to section 110(a)(2)(D)(i)
in this proposal.
5. Interstate and International
transport provisions: Section
110(a)(2)(D)(ii) requires that each SIP
shall contain adequate provisions
insuring compliance with applicable
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requirements of sections 126 and 115
(relating to interstate and international
pollution abatement).
a. South Dakota’s response to this
requirement: South Dakota submitted its
Interstate Transport SIP to EPA on May
25, 2007.
b. EPA Analysis: Section 126(a) of the
CAA requires notification to affected,
nearby states of major proposed new (or
modified) sources. Sections 126(b) and
(c) pertain to petitions by affected states
to the Administrator regarding sources
violating the ‘‘interstate transport’’
provisions of section 110(a)(2)(D)(i).
Section 115 of the CAA similarly
pertains to international transport of air
pollution.
South Dakota’s SIP-approved PSD
program incorporates by reference the
Federal PSD program at 40 CFR 52.21.
However, South Dakota separately
implements public notice requirements
by incorporating by reference (with
certain modifications) 40 CFR 51.166(q).
In particular, the SIP’s incorporation of
51.166(q)(2)(iii), which requires notice
to states whose lands may be affected by
the emissions of sources subject to PSD,
satisfies the notice requirement of
section 126(a).
South Dakota has no pending
obligations under sections 126(c) or
115(b); therefore, its SIP currently meets
the requirements of those sections. The
SIP therefore meets the requirements of
110(a)(2)(D)(ii) for the 1997 ozone
NAAQS.
6. Adequate resources and authority:
Section 110(a)(2)(E) requires states to
provide (i) necessary assurances that the
state will have adequate personnel,
funding, and authority under state law
to carry out the SIP (and is not
prohibited by any provision of federal or
state law from carrying out the SIP or
portion thereof), (ii) requires that the
state comply with the requirements
respecting state boards under section
128, and (iii) necessary assurances that,
where the state has relied on a local or
regional government, agency, or
instrumentality for the implementation
of any SIP provision, the state has
responsibility for ensuring adequate
implementation of such SIP provision.
a. South Dakota’s response to this
requirement: SDCL 34A–1–4, 34A–1–7
through 34A–1–10 provides DENR with
adequate personnel to carry out South
Dakota’s SIP and related issues. SDCL
34A–1–57 through 34A–1–60, and
DENR’s agreement with EPA for 103 and
105 grants and associated matching state
funds provides DENR with the funding
necessary to carry out South Dakota’s
SIP and related issues. SDCL 34A–1
provides DENR with the legal authority
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to carry out South Dakota’s SIP and
related issues.
b. EPA Analysis: South Dakota’s SIP
meets the requirements of section
110(a)(2)(E) for the 1997 ozone NAAQS.
SDCL 34A–1–57 through 34A–1–60
provides adequate authority for the
State of South Dakota and the DENR to
carry out its SIP obligations with respect
to the 1997 ozone NAAQS. The State
receives sections 103 and 105 grant
funds through its Performance
Partnership Grant along with required
state matching funds to provide funding
necessary to carry out South Dakota’s
SIP requirements. South Dakota’s
resources meet the requirements of CAA
section 110(a)(2)(E). Finally, SDCL 1–
40–25.1 requires the Board of Minerals
and Environment to be composed in
accordance with section 128 of the
CAA.
7. Stationary source monitoring and
reporting: Section 110(a)(2)(F) requires
(i) the installation, maintenance, and
replacement of equipment, and the
implementation of other necessary
steps, by owners or operators of
stationary sources to monitor emissions
from such sources, (ii) period reports on
the nature and amounts of emissions
and emissions-related data from such
sources, and (iii) correlation of such
reports by the state agency with any
emission limitations or standards
established pursuant to the Act, which
reports shall be available at reasonable
times for public inspection.
a. South Dakota’s response to this
requirement: The rules in ARSD Chapter
74:36:04 (Operating permits for minor
sources), 74:35:05 (Operating permits
for part 70 sources), 74:37:11
(Performance testing) and 74:36:13
(Continuous emission monitoring
systems) establish a system to monitor
emissions from stationary sources and
periodic emissions reports. Authority to
promulgate these rules is contained in
SDCL 34A–a–6 and SDCL 34A–1–12.
b. EPA Analysis: South Dakota’s SIP
provides for monitoring, recordkeeping,
and reporting requirements for sources
subject to minor and major source
permitting. As mentioned above, the SIP
contains no other, specific emissions
limitations on ozone or its precursors.
South Dakota’s SIP therefore meets the
requirements of section 110(a)(2)(F) for
the 1997 ozone NAAQS.
8. Emergency powers: Section
110(a)(2)(G) requires states to provide
for authority to address activities
causing imminent and substantial
endangerment to public health,
including contingency plans to
implement the emergency episode
provisions in their SIPs.
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a. South Dakota’s response to this
requirement: The rules in ARSD Chapter
74:36:03 (Air quality episodes) adopt by
reference the criteria in 40 CFR 51.151
as the air quality episode plan to
address activities causing imminent and
substantial endangerment to public
health, including contingency plans to
implement the emergency episode
provisions of the South Dakota SIP.
Authority to promulgate these rules is
contained in SDCL 34A–1–6, 34A–1–15,
and 34A–1–45. The episode criteria
specified in this chapter for ozone are
based on an 8-hour average ozone level
at a monitoring site. These criteria have
previously been approved by EPA as
adequate to address ozone emergency
episodes.
b. EPA analysis: SDCL 34A–1–45
provides DENR with general emergency
authority comparable to that in section
303 of the Act. The SIP also requires
DENR to follow criteria in 40 CFR
51.151 in proclaiming an emergency
episode and to develop a contingency
plan. The contingency plan, though, has
not itself been incorporated into the SIP.
However, South Dakota has not
monitored any values above the priority
cut point for ozone. See 40 CFR
51.150(b)(5). The SIP therefore meets
the requirements of 110(a)(2)(G) for the
1997 ozone NAAQS.
9. Future SIP revisions: Section
110(a)(2)(H) requires that SIPs provide
for revision of such plan (i) from time
to time as may be necessary to take
account of revisions of such national
primary or secondary ambient air
quality standard or the availability of
improved or more expeditious methods
of attaining such standard, and (ii),
except as provided in paragraph (3)(C),
whenever the Administrator finds on
the basis of information available to the
Administrator that the SIP is
substantially inadequate to attain the
NAAQS which it implements or to
otherwise comply with any additional
requirements under this Act.
a. South Dakota’s response to this
requirement: SDCL 34A–1–6 provides
DENR with the authority to revise South
Dakota’s SIP in response to changes to
the federal NAAQS, availability of
improved methods for attaining the
federal standards, or in response to an
EPA finding that the SIP is substantially
inadequate.
b. EPA analysis: South Dakota’s
statutory provision at SDCL 34A–1–6
gives DENR sufficient authority to meet
the requirements of 110(a)(2)(H).
10. Nonattainment Area Plan or Plan
Revision under Part D: Section
110(a)(2)(I) requires that a SIP or SIP
revision for an area designated as a
nonattainment area must meet the
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27627
applicable requirements of part D of this
subchapter (relating to nonattainment
areas).
a. EPA analysis for Section
110(a)(2)(I): As noted above, the specific
nonattainment area plan requirements
of section 110(a)(2)(I) are subject to the
timing requirement of section 172, not
the timing requirement of section
110(a)(1). This element is therefore not
applicable to this action. EPA will take
action on part D attainment plans
through a separate process.
11. Consultation with government
officials, public notification, PSD and
visibility protection: Section 110(a)(2)(J)
requires that each SIP meet the
applicable requirements of section 121
of this title (relating to consultation),
section 127 of this title (relating to
public notification), and part C of this
subchapter (relating to prevention of
significant deterioration of air quality
and visibility protection).
a. South Dakota’s response to this
requirement: SDCL 34A–1–1 and 34–1–
10 provide DENR with the authority to
consult with local governments, other
states, federal government, etc. SDCL 1–
40–31 and 34A–1–9 provide DENR with
the authority to collect and disseminate
information and provide full public
inspection and disclosure of all nonconfidential public records related to
DENR and those activities within its
jurisdiction. The public is notified of
any concentrations that exceed the
NAAQS through DENR’s Air Quality
program website that contains the daily
concentrations updated hourly from five
sites covering 17 parameters from
continuous analyzers and monitors
located throughout the state. Four of
these sites report hourly ozone levels to
the website and to the AirNow EPA
database. Through this site, the public is
notified of high concentration periods.
The rules in ARSD Chapter 74:36:09
(Prevention of significant deterioration)
adopt by reference federal regulations
under 40 CFR parts 51 and 52 and
provide DENR with regulations
necessary to meet the applicable
requirements of part C of the federal
CAA related to PSD and visibility
protection. South Dakota’s PSD rules
were approved in South Dakota’s SIP on
January 22, 2008. Authority to
promulgate these rules is contained in
SDCL 34A–1–6.
b. EPA Analysis: The State has
demonstrated that it has the authority
and rules in place to provide a process
of consultation with general purpose
local governments, designated
organizations of elected officials of local
governments and any Federal Land
Manager having authority over federal
land to which the SIP applies,
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consistent with the requirements of
CAA section 121. Furthermore, EPA
previously addressed the requirements
of CAA section 127 for the South Dakota
SIP. (45 FR 58528, Sept. 4, 1980.)
As discussed above, the State has a
SIP-approved PSD program that
incorporates by reference the federal
program at 40 CFR 52.21. EPA has
further evaluated South Dakota’s SIPapproved PSD program in this proposed
action under IV.3, element 110(a)(2)(C).
Finally, with regard to the applicable
requirements for visibility protection,
EPA recognizes that states are subject to
visibility and regional haze program
requirements under part C of the act. In
the event of the establishment of a new
NAAQS, however, the visibility and
regional haze program requirements
under part C do not change. Thus we
find that there are no applicable
visibility requirements under section
110(a)(2)(J) when a new NAAQS
becomes effective. In conclusion, the
South Dakota SIP meets the
requirements of section 110(a)(2)(J) for
the 1997 ozone NAAQS.
12. Air quality and modeling/data:
Section 110(a)(2)(K) requires that each
SIP provide for (i) the performance of
such air quality modeling as the
Administrator may prescribe for the
purpose of predicting the effect on
ambient air quality of any emissions of
any air pollutant for which the
Administrator has established a
NAAQS, and (ii) the submission, upon
request, of data related to such air
quality modeling to the Administrator.
a. South Dakota’s response to this
requirement: The rules in ARSD Chapter
74:36:04 (Operating permit for minor
sources), 74:36:05 (Operating permit for
part 70 sources), 74:36:09 (Prevention of
significant deterioration), and 74:36:10
(New source review) provide DENR
with the authority to perform air quality
modeling for predicting effects on air
quality of emissions of any NAAQS
pollutant and submission of such data
to EPA upon request. Authority to
promulgate these rules is contained in
SDCL 34A–1–6 and 34A–1–9.
b. EPA Analysis: South Dakota’s SIP
meets the requirements of CAA section
110(a)(2)(K) for the 1997 ozone NAAQS.
In particular, South Dakota’s PSD
program incorporates by reference the
federal program at 40 CFR 52.21,
including the provision at 40 CFR
52.21(l)(1) requiring that estimates of
ambient air concentrations be based on
applicable air quality models specified
in Appendix W of 40 CFR part 51, and
the provision at 40 CFR 52.21(l)(2)
requiring that modification or
substitution of a model specified in
Appendix W must be approved by the
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Administrator. As a result, the SIP
provides for such air quality modeling
as the Administrator has prescribed.
13. Permitting fees: Section
110(a)(2)(L) requires SIPs to require the
owner or operator of each major
stationary source to pay to the
permitting authority, as a condition of
any permit required under this act, a fee
sufficient to cover (i) the reasonable
costs of reviewing and acting upon any
application for such a permit, and (ii) if
the owner or operator receives a permit
for such source, the reasonable costs of
implementing and enforcing the terms
and conditions of any such permit (not
including any court costs or other costs
associated with any enforcement
action), until such fee requirement is
superseded with respect to such sources
by the Administrator’s approval of a fee
program under title V.
a. South Dakota’s response to this
requirement: The DENR has an
approved title V operating permit
program (61 FR 2720, Jan. 29, 1996) that
requires major stationary sources to pay
permitting fees to cover the cost of
reviewing, approving, implementing
and enforcing the title V permit.
b. EPA Analysis: South Dakota’s
approved title V operating permit
program meets the requirements of CAA
section 110(a)(2)(L) for the 1997 ozone
NAAQS. Final approval of the title V
operating permit program became
effective February 28, 1996. (See 61 FR
2720, Jan. 29, 1996.) As discussed in the
notice proposing approval of the title V
program (60 FR 2917, Jan. 12, 1995), the
State demonstrated that the fees
collected were sufficient to administer
the program.
14. Consultation/participation by
affected local entities: Section
110(a)(2)(M) requires states to provide
for consultation and participation in SIP
development by local political
subdivisions affected by the SIP.
a. South Dakota’s response to this
requirement: SDCL 34A–1–1, 34A–1–10
provides DENR with the authority to
provide for consultation and
participation in South Dakota’s SIP
development by local political
subdivision affected by the SIP.
Cooperation by DENR with other
agencies provides for the consultation,
advise, and cooperation with other state,
local, industries, other states, interstate
or inter local agencies, and the federal
government, and with interested
persons or groups on air pollution
control issues.
b. EPA Analysis: South Dakota’s
submittal meets the requirements of
CAA section 110(a)(2)(M) for the 1997
ozone NAAQS.
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V. What action is EPA taking?
In this action, EPA is proposing to
approve in full the following section
110(a)(2) infrastructure elements for
South Dakota for the 1997 ozone
NAAQS: (A), (B), (D)(ii), (E), (F), (G),
(H), (J), (K), (L), (M). EPA proposes to
approve the section 110(a)(2)(C)
infrastructure element in full in the
event that South Dakota takes one of the
actions described in the discussion of
that element; in the alternative, EPA
proposes to disapprove the section
110(a)(2)(C) element to the extent
described and to otherwise approve this
element. EPA is taking no action on
infrastructure elements (D)(i) and (I) for
the 1997 ozone NAAQS. EPA also
proposes to approve the portion of
South Dakota’s June 14, 2010 SIP
submission that revises South Dakota’s
PSD program to incorporate by reference
the federal program at 40 CFR 52.21 as
of July 1, 2009, except to the extent that
revision applies PSD permitting to GHG
emissions increases from GHG-emitting
sources below the thresholds set out in
the Tailoring Rule, 75 FR 31514.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations
(42 U.S.C. 7410(k), 40 CFR 52.02(a)).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely approves some state law
as meeting Federal requirements and
disapproves other state law because it
does not meet Federal requirements;
this proposed action does not impose
additional requirements beyond those
imposed by state law. For that reason,
this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• 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
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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 rule does not have
Tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the State, and EPA notes that
it will not impose substantial direct
costs on Tribal governments or preempt
Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: May 4, 2011.
Judith Wong,
Acting Regional Administrator, Region 8.
[FR Doc. 2011–11723 Filed 5–11–11; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R4–ES–2008–0107; MO
92210–0–0009–B2]
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RIN 1018–AV88
Endangered and Threatened Wildlife
and Plants; Listing of the Altamaha
Spinymussel and Designation of
Critical Habitat
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of
comment period, notice of availability
of draft economic analysis, and
amended required determinations.
AGENCY:
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12:41 May 11, 2011
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We, the U.S. Fish and
Wildlife Service, announce the
reopening of the public comment period
on the October 6, 2010, proposed
designation of critical habitat for the
Altamaha spinymussel (Elliptio spinosa)
under the Endangered Species Act of
1973, as amended (Act). We also
announce the availability of a draft
economic analysis (DEA) of the
proposed designation of critical habitat
and an amended required
determinations section of the proposal.
We are reopening the comment period
to allow all interested parties an
opportunity to comment simultaneously
on the proposed rule, the associated
DEA, and the amended required
determinations section. Comments
previously submitted need not be
resubmitted and will be fully
considered in preparation of the final
rule.
DATES: We will consider comments
received on or before June 13, 2011.
Comments must be received by 11:59
p.m. Eastern Time on the closing date.
Any comments that we receive after the
closing date may not be considered in
the final decision on this action.
ADDRESSES: You may submit comments
by one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments to
Docket No. FWS–R4–ES–2008–0107.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: Docket No.
FWS–R4–ES–2008–0107; Division of
Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N.
Fairfax Drive, MS 2042–PDM;
Arlington, VA 22203.
We will post all comments on
https://www.regulations.gov. This
generally means that we will post any
personal information you provide us
(see the Public Comments section below
for more information).
FOR FURTHER INFORMATION CONTACT:
Sandra Tucker, Field Supervisor, U.S.
Fish and Wildlife Service, Georgia
Ecological Services Office, 105
Westpark Dr., Suite D, Athens, GA
30606; telephone 706–613–9493;
facsimile 706–613–6059. Persons who
use a telecommunications device for the
deaf (TDD) may call the Federal
Information Relay Service (FIRS) at
800–877–8339.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Public Comments
We will accept written comments and
information during this reopened
comment period on our proposed listing
and designation of critical habitat for
the Altamaha spinymussel that was
PO 00000
Frm 00015
Fmt 4702
Sfmt 4702
27629
published in the Federal Register on
October 6, 2010 (75 FR 61664), our DEA
of the proposed designation, and the
amended required determinations
provided in this document. We will
consider information and
recommendations from all interested
parties. We are particularly interested in
comments concerning:
(1) The reasons why we should or
should not designate habitat as ‘‘critical
habitat’’ under section 4 of the Act (16
U.S.C. 1531 et seq.), including whether
there are threats to the species from
human activity, the degree of which can
be expected to increase due to the
designation, and whether that increase
in threat outweighs the benefit of
designation such that the designation of
critical habitat is not prudent.
(2) Specific information on:
(a) The distribution of the Altamaha
spinymussel;
(b) The amount and distribution of
Altamaha spinymussel habitat; and
(c) What areas occupied by the
species at the time of listing that contain
features essential for the conservation of
the species we should include in the
designation and why; and
(d) What areas not occupied at the
time of listing are essential to the
conservation of the species and why.
(3) Land use designations and current
or planned activities in the subject areas
and their possible impacts on proposed
critical habitat.
(4) Any foreseeable economic,
national security, or other relevant
impacts that may result from
designating any area that may be
included in the final designation. We
are particularly interested in any
impacts on small entities, and the
benefits of including or excluding areas
from the proposed designation that are
subject to these impacts.
(5) Whether our approach to
designating critical habitat could be
improved or modified in any way to
provide for greater public participation
and understanding, or to assist us in
accommodating public concerns and
comments.
(6) Information on the extent to which
the description of economic impacts in
the DEA is complete and accurate.
(7) The likelihood of adverse social
reactions to the designation of critical
habitat, as discussed in the DEA, and
how the consequences of such reactions,
if likely to occur, would relate to the
conservation and regulatory benefits of
the proposed critical habitat
designation.
(8) Which areas would be appropriate
as critical habitat for the species.
E:\FR\FM\12MYP1.SGM
12MYP1
]]>Agencies
[Federal Register Volume 76, Number 92 (Thursday, May 12, 2011)]
[Proposed Rules]
[Pages 27622-27629]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-11723]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2010-0301; FRL-9304-7]
Approval and Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient
Air Quality Standards; South Dakota
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve the State Implementation Plan
(SIP) submission from the State of South Dakota to demonstrate that the
SIP meets the requirements of section 110(a)(1) and (2) of the Clean
Air Act (CAA) for the National Ambient Air Quality Standards (NAAQS)
promulgated for ozone on July 18, 1997. Section 110(a)(1) of the CAA
requires that each state, after a new or revised NAAQS is promulgated,
review their
[[Page 27623]]
SIPs to ensure that they meet the requirements of the ``infrastructure
elements'' of section 110(a)(2). The State of South Dakota submitted a
certification of their Infrastructure SIP for the 1997 ozone NAAQS,
dated February 1, 2008, which was determined to be complete on March
27, 2008 (73 FR 16205). EPA does not propose to act on the State's
February 1, 2008 submission to meet the requirements of section
110(a)(2)(D)(i) of the CAA, relating to interstate transport of air
pollution, for the 1997 ozone NAAQS. EPA approved the State's
interstate transport SIP submission on May 8, 2008 (73 FR 26019).
DATES: Written comments must be received on or before June 13, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2010-0301, by one of the following methods:
https://www.regulations.gov. Follow the on-line
instructions for submitting comments.
E-mail: dolan.kathy@epa.gov.
Fax: (303) 312-6064 (please alert the individual listed in
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
Mail: Director, Air Program, Environmental Protection
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver,
Colorado 80202-1129.
Hand Delivery: Director, Air Program, Environmental
Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop
Street, Denver, Colorado 80202-1129. Such deliveries are only accepted
Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays.
Special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2010-0301. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA, without
going through https://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting
comments, go to section I, General Information, of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in https://www.regulations.gov or in hard copy at the Air 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: Kathy Dolan, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6142,
dolan.kathy@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.
Table of Contents
I. General Information
II. Background
III. What Infrastructure elements are required under sections
110(a)(1) and (2)?
IV. How did the State of South Dakota address the infrastructure
elements of Sections 110(a)(1) and (2)?
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews
I. General Information
What should I consider as I prepare my comments for EPA?
1. Submitting Confidential Business Information (CBI). Do not
submit CBI to EPA through https://www.regulations.gov or e-mail. Clearly
mark the part or all of the information that you claim to be CBI. For
CBI information on a disk or CD-ROM that you mail to EPA, mark the
outside of the disk or CD-ROM as CBI and then identify electronically
within the disk or CD-ROM the specific information that is claimed as
CBI. In addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
2. Tips for preparing your comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register, date, and page number);
Follow directions and organize your comments;
Explain why you agree or disagree;
Suggest alternatives and substitute language for your requested
changes;
Describe any assumptions and provide any technical information and/
or data that you used;
If you estimate potential costs or burdens, explain how you arrived
at your estimate in sufficient detail to allow for it to be reproduced;
Provide specific examples to illustrate your concerns, and suggest
alternatives;
Explain your views as clearly as possible, avoiding the use of
profanity or personal threats; and,
Make sure to submit your comments by the comment period deadline
identified.
[[Page 27624]]
II. Background
On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By
statute, SIPs meeting the requirements of sections 110(a)(1) and (2)
are to be submitted by states within three years after promulgation of
a new or revised standard. Section 110(a)(2) provides basic
requirements for SIPs, including emissions inventories, monitoring, and
modeling, to assure attainment and maintenance of the standards. These
requirements are set out in several ``infrastructure elements,'' listed
in section 110(a)(2).
Section 110(a) imposes the obligation upon states to make a SIP
submission to EPA for a new or revised NAAQS, and the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time the
state develops and submits the SIP for a new or revised NAAQS affects
the content of the submission. The contents of such SIP submission may
also vary depending upon what provisions the state's existing SIP
already contains. In the case of the 1997 ozone NAAQS, states typically
have met the basic program elements required in section 110(a)(2)
through earlier SIP submissions in connection with previous NAAQS.
In a guidance issued on October 2, 2007, EPA noted that, to the
extent an existing SIP already meets the section 110(a)(2)
requirements, states need only certify that fact via a letter to
EPA.\1\
---------------------------------------------------------------------------
\1\ Memorandum from William T. Harnett, Director, Air Quality
Policy Division, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards'' (Oct. 2, 2007).
---------------------------------------------------------------------------
On 3/27/08, EPA published a final rulemaking entitled,
``Completeness Findings for section 110(a) State Implementation Plans;
8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a finding for
each state that it had submitted or failed to submit a complete SIP
that provided the basic program elements of section 110(a)(2) necessary
to implement the 1997 8-hour ozone NAAQS. In particular, EPA found that
the State of South Dakota had submitted a complete SIP to meet these
requirements.
III. What infrastructure elements are required under Section 110(a)(1)
and (2)?
Section 110(a)(1) provides the procedural and timing requirements
for SIP submissions after a new or revised NAAQS is promulgated.
Section 110(a)(2) lists specific elements the SIP must contain or
satisfy. These infrastructure elements include requirements such as
modeling, monitoring, and emissions inventories, which are designed to
assure attainment and maintenance of the NAAQS. The elements that are
the subject of this action are listed below.
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control measures.
110(a)(2)(D)(ii): Interstate and international pollution.
110(a)(2)(E): Adequate resources and authority.
110(a)(2)(F): Stationary source monitoring and reporting.
110(a)(2)(G): Emergency powers.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(J): Consultation with government officials;
public notification; and prevention of significant deterioration (PSD)
and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
A detailed discussion of each of these elements is contained in the
next section.
Two elements identified in section 110(a)(2) are not governed by
the three- year submission deadline of section 110(a)(1) and are
therefore not addressed in this action. These elements relate to part D
of Title I of the CAA, and submissions to satisfy them are not due
within three years after promulgation of a new or revised NAAQS, but
rather are due at the same time nonattainment area plan requirements
are due under section 172. The two elements are: (i) Section
110(a)(2)(C) to the extent it refers to permit programs (known as
``nonattainment new source review (NSR)'') required under part D, and
(ii) section 110(a)(2)(I) pertaining to the nonattainment planning
requirements of part D. As a result, this action does not address
infrastructure elements related to the nonattainment NSR portion of
section 110(a)(2)(C) or related to 110(a)(2)(I).
This action also does not address the ``interstate transport''
requirements of element 110(a)(2)(D)(i). In a separate action, EPA
approved the State's submission to meet the requirements of 110
(a)(2)(D)(i) for the 1997 ozone NAAQS (73 FR 26019).
IV. How did the State of South Dakota address the elements of the
infrastructure provisions of Section 110(a)(2)?
1. Emission limits and other control measures: Section 110(a)(2)(A)
requires SIPs to include enforceable emission limitations and other
control measures, means, or techniques (including economic incentives
such as fees, marketable permits, and auctions of emissions rights), as
well as schedules and timetables for compliance as may be necessary or
appropriate to meet the applicable requirements of this Act.
a. South Dakota's response to this requirement: The rules in the
Administrative Rules of South Dakota (ARSD) Chapter 74:36:04 (Operating
permits for minor sources), 74:36:05 (Operating permits for part 70
sources), 74:35:06 (Regulated air pollutant emissions), 74:36:07 (New
source performance standards), 74:36:08 (National emission standards
for hazardous air pollutants), 74:36:09 (Prevention of significant
deterioration), and 74:36:10 (New source review) provide enforceable
emission limits and other control measures, means or techniques,
schedules for compliance and other related matters necessary to
maintain South Dakota in attainment with the federal NAAQS. Authority
to promulgate these rules is contained in South Dakota Codified Laws
(SDCL) 34A-1-1, 34A-1-6, 34A-1-18, 34A-1-19.
b. EPA analysis: South Dakota's SIP meets the requirements of CAA
section 110(a)(2)(A) for the 1997 ozone NAAQS, subject to the following
clarifications. First, this infrastructure element does not require the
submittal of regulations or emission limitations developed specifically
for attaining the 1997 ozone NAAQS. Furthermore, South Dakota has no
areas designated as nonattainment for the 1997 ozone NAAQS. As a
result, the South Dakota SIP contains no emissions limitations specific
to ozone and/or its precursors. Instead, South Dakota regulates
emissions of ozone and its precursors through its SIP-approved major
and minor source permitting programs.\2\ This suffices, in the case of
[[Page 27625]]
South Dakota, to meet the requirements of section 110(a)(2)(A) for the
1997 ozone NAAQS.
---------------------------------------------------------------------------
\2\ Certain rules cited by South Dakota--its title V program
(ARSD 74:36:05), new source performance standards (ARSD 74:36:07),
and national emissions standards for hazardous air pollutants (ARSD
74:36:08)--are not required for inclusion into South Dakota's SIP
and are therefore not considered by EPA in this action.
---------------------------------------------------------------------------
Second, in this action, EPA is not proposing to approve or
disapprove any existing state rules with regard to director's
discretion or variance provisions. A number of states have such
provisions which are contrary to the CAA and existing EPA guidance (52
FR 45109, Nov. 24, 1987), and the Agency plans to take action in the
future to address such state regulations. In the meantime, EPA
encourages any state having a director's discretion or variance
provision which is contrary to the CAA and EPA guidance to take steps
to correct the deficiency as soon as possible.
Finally, in this action, EPA is also not proposing to approve or
disapprove any existing SIP provisions with regard to excess emissions
during startup, shutdown, or malfunction (SSM) of operations at a
facility. A number of states have SSM provisions which are contrary to
the CAA and existing EPA guidance \3\ and the Agency plans to address
such state regulations in the future. In the meantime, EPA encourages
any state having a deficient SSM provision to take steps to correct it
as soon as possible.
---------------------------------------------------------------------------
\3\ Steven Herman, Assistant Administrator for Enforcement and
Compliance Assurance, and Robert Perciasepe, Assistant Administrator
for Air and Radiation, Memorandum to EPA Air Division Directors,
``State Implementation Plans (SIPs): Policy Regarding Excess
Emissions During Malfunctions, Startup, and Shutdown.'' (Sept. 20,
1999).
---------------------------------------------------------------------------
2. Ambient air quality monitoring/data system: Section 110(a)(2)(B)
requires SIPs to provide for establishment and operation of appropriate
devices, methods, systems, and procedures necessary to (i) monitor,
compile, and analyze data on ambient air quality, and (ii) upon
request, make such data available to the Administrator.
a. South Dakota's response to this requirement: The rules in ARSD
74:36:02 define the goals, NAAQS, air monitoring methods and monitoring
requirements provided for establishment and operation of ambient air
quality monitors, collecting and analyzing ambient air quality data and
making these data available to EPA. Authority used to promulgate these
rules is contained in SDCL 34A-1-6 and 34A-1-15.
b. EPA analysis: South Dakota's air monitoring programs and data
systems meet the requirements of CAA section 110(a)(2)(B) for the 1997
ozone NAAQS. The South Dakota Department of Environment and Natural
Resources (DENR) 2008 Ambient Air Monitoring Annual Network Plan was
approved by EPA Region 8 on March 23, 2009.
3. Program for enforcement of control measures: Section
110(a)(2)(C) requires SIPs to include a program to provide for the
enforcement of the measures described in subparagraph (A), and
regulation of the modification and construction of any stationary
source within the areas covered by the plan as necessary to assure that
NAAQS are achieved, including a permit program as required in parts C
and D.
a. South Dakota's response to this requirement: SDCL 34A-1-39
through 34A-1-54 and 34A-1-62 provides DENR with the authority to
provide enforcement of all South Dakota SIP measures and the
regulations under ARSD Chapter 74:36:09 (Prevention of significant
deterioration) and 74:36:10 (New source review).
b. EPA analysis: As explained above, in this action EPA is not
evaluating non-attainment related provisions, such as the nonattainment
New Source Review (NSR) program required by part D of the Act. In
addition, South Dakota has no nonattainment areas for the 1997 ozone
NAAQS and is therefore not required at this point to have a
corresponding nonattainment NSR program. In this action, EPA is
evaluating the State's PSD program as required by part C of the Act,
and the State's minor NSR program as required by 110(a)(2)(C).
South Dakota's SIP-approved PSD program incorporates by reference
(with certain exceptions) the federal PSD program in 40 CFR 52.21 as of
July 1, 2005 (72 FR 72617). As described in our notice of approval of
the program (72 FR 72617), South Dakota's PSD program met the general
requirements of CAA section 110(a)(2)(C) as of that date.
Greenhouse Gas Regulation
EPA notes a potential inconsistency between South Dakota's February
1, 2008 infrastructure SIP certification and EPA's recently promulgated
rule, ``Limitation of Approval of Prevention of Significant
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans'' (``PSD SIP Narrowing Rule''), 75 FR 82536
(Dec. 30, 2010). In the PSD SIP Narrowing Rule, EPA withdrew its
previous approval of South Dakota's PSD program to the extent that it
applied PSD permitting to greenhouse gas (GHG) emissions increases from
GHG-emitting sources below thresholds set in EPA's June 3, 2010
``Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule'' (``Tailoring Rule''), 75 FR 31514. EPA withdrew its
approval on the basis that the State lacked sufficient resources to
issue PSD permits to such sources at the statutory thresholds in effect
in the previously-approved PSD program. After the PSD SIP Narrowing
Rule, the portion of South Dakota's PSD SIP from which EPA withdrew its
approval had the status of having been submitted to EPA but not yet
acted upon. In its February 1, 2008 certification, South Dakota relied
on its PSD program as approved at that date--which was before December
30, 2010, the effective date of the PSD SIP Narrowing Rule--to satisfy
the requirements of infrastructure element 110(a)(2)(C). Given EPA's
basis for the PSD SIP Narrowing Rule, EPA proposes approval of the
South Dakota infrastructure SIP for infrastructure element (C) if
either the State clarifies (or modifies) its certification to make
clear that the State relies only on the portion of the PSD program that
remains approved after the PSD SIP Narrowing Rule issued on December
30, 2010, and for which the State has sufficient resources to
implement, or the State acts to withdraw from EPA consideration the
remaining portion of its PSD program submission that would have applied
PSD permitting to GHG sources below the Tailoring Rule thresholds. In
the alternative, if South Dakota does not take either action, EPA
proposes to disapprove the infrastructure SIP to the extent it
incorporates that portion of the previously-approved PSD program from
which EPA withdrew its approval in the PSD SIP Narrowing Rule, which is
the portion which would have applied PSD permitting requirements to GHG
emissions increases from GHG-emitting sources below the Tailoring Rule
thresholds. Such disapproval, if finalized, would not result in a need
for South Dakota to resubmit a SIP revision, sanctions, or a federal
implementation plan (FIP).
Regulation of Ozone Precursors
In order for South Dakota's SIP-approved PSD program to satisfy the
requirements of section 110(a)(2)(C) for the 1997 ozone NAAQS, the
program must also properly regulate ozone precursors. On November 29,
2005, EPA promulgated the phase 2 implementation rule for the 1997
ozone NAAQS, which includes requirements for PSD programs to treat
nitrogen oxides as a precursor for ozone (72 FR 71612). The phase 2
implementation rule accordingly updated the federal program at 40 CFR
52.21 to meet these requirements, effective January 30, 2006. This
effective date is after the July 1, 2005 date of incorporation of 40
CFR 52.21 by the currently approved South
[[Page 27626]]
Dakota SIP. In other words, South Dakota's current SIP-approved PSD
program does not meet the requirements of the phase 2 ozone
implementation rule.
On June 14, 2010, the State submitted to EPA a SIP revision that
(among other things) revises ARSD 74:36:09 (Prevention of significant
deterioration) to incorporate by reference the federal PSD program in
40 CFR 52.21 as of July 1, 2009. As a result of the revised
incorporation date, the submitted PSD program meets the requirements of
the phase 2 ozone implementation rule. EPA therefore proposes to
concurrently approve the portion of the June 14, 2010 submission
revising ARSD 74:36:09, with the following exception.
Consistent with the Tailoring Rule, the SIP PSD Narrowing Rule, and
the discussion above, EPA proposes to disapprove the revision of ARSD
74:36:09 in the June 14, 2010 submission to the extent that the
revision applies PSD permitting to GHG emissions increases from GHG-
emitting sources below Tailoring Rule thresholds. The Tailoring Rule
modified the federal PSD program at 40 CFR 52.21, effective August 2,
2010, to incorporate the Tailoring Rule thresholds.\4\ 75 FR at 31606-
07. This effective date is after July 1, 2009, the date of
incorporation of 40 CFR 52.21 in South Dakota's June 14, 2010
submission. Therefore, in order to ensure consistency with the
Tailoring Rule and the PSD SIP Narrowing Rule, it is necessary for EPA
to propose to disapprove the revision to the extent it applies PSD
permitting to GHG emissions increases from GHG-emitting sources below
Tailoring Rule thresholds. As mentioned above, this disapproval will
not result in a need for South Dakota to submit a SIP revision,
sanctions, or a FIP.
---------------------------------------------------------------------------
\4\ Note that this is the effective date of the modification of
52.21, not the initial date of applicability of the thresholds,
which was January 2, 2011.
---------------------------------------------------------------------------
Minor New Source Review
The State has a SIP-approved minor NSR program, adopted under
section 110(a)(2)(C) of the Act, which regulates emissions of ozone and
its precursors. On September 6, 1995, EPA approved extensive changes to
the State's minor NSR program for incorporation into the SIP, and there
was at the time no objection to the provisions of this program (60 FR
46222). Since then, the State and EPA have relied on the existing State
minor NSR program to assure that new and modified sources not captured
by the major NSR permitting programs do not interfere with attainment
and maintenance of the NAAQS.
In this action, EPA is proposing to approve South Dakota's
infrastructure SIP for the 1997 ozone NAAQS with respect to the general
requirement in section 110(a)(2)(C) to include a program in the SIP
that regulates the modification and construction of any stationary
source as necessary to assure that the NAAQS are achieved. EPA is not
proposing to approve or disapprove the State's existing minor NSR
program itself to the extent that it is inconsistent with EPA's
regulations governing this program. A number of states may have minor
NSR provisions that are contrary to the existing EPA regulations for
this program. EPA intends to work with states to reconcile state minor
NSR programs with EPA's regulatory provisions for the program. The
statutory requirements of section 110(a)(2)(C) provide for considerable
flexibility in designing minor NSR programs, and it may be time to
revisit the regulatory requirements for this program to give the states
an appropriate level of flexibility to design a program that meets
their particular air quality concerns, while assuring reasonable
consistency across the country in protecting the NAAQS with respect to
new and modified minor sources.
4. Interstate transport: Section 110(a)(2)(D)(i) requires SIPs to
contain adequate provisions prohibiting, consistent with the provisions
of this title, any source or other type of emissions activity within
the state from emitting any air pollutant in amounts which will (I)
contribute significantly to nonattainment in, or interfere with
maintenance by, any other state, with respect to any such national
primary or secondary ambient air quality standard, or (II) interfere
with measures required to be included in the applicable implementation
plan for any other state under part C to prevent significant
deterioration of air quality or to protect visibility.
a. South Dakota's response to this requirement: South Dakota
submitted its Interstate Transport SIP to EPA on May 25, 2007.
b. EPA Analysis: EPA approved the State's Interstate Transport
provisions for the 1997 ozone NAAQS on May 8, 2008 (73 FR 26019). EPA
is taking no action relevant to section 110(a)(2)(D)(i) in this
proposal.
5. Interstate and International transport provisions: Section
110(a)(2)(D)(ii) requires that each SIP shall contain adequate
provisions insuring compliance with applicable requirements of sections
126 and 115 (relating to interstate and international pollution
abatement).
a. South Dakota's response to this requirement: South Dakota
submitted its Interstate Transport SIP to EPA on May 25, 2007.
b. EPA Analysis: Section 126(a) of the CAA requires notification to
affected, nearby states of major proposed new (or modified) sources.
Sections 126(b) and (c) pertain to petitions by affected states to the
Administrator regarding sources violating the ``interstate transport''
provisions of section 110(a)(2)(D)(i). Section 115 of the CAA similarly
pertains to international transport of air pollution.
South Dakota's SIP-approved PSD program incorporates by reference
the Federal PSD program at 40 CFR 52.21. However, South Dakota
separately implements public notice requirements by incorporating by
reference (with certain modifications) 40 CFR 51.166(q). In particular,
the SIP's incorporation of 51.166(q)(2)(iii), which requires notice to
states whose lands may be affected by the emissions of sources subject
to PSD, satisfies the notice requirement of section 126(a).
South Dakota has no pending obligations under sections 126(c) or
115(b); therefore, its SIP currently meets the requirements of those
sections. The SIP therefore meets the requirements of 110(a)(2)(D)(ii)
for the 1997 ozone NAAQS.
6. Adequate resources and authority: Section 110(a)(2)(E) requires
states to provide (i) necessary assurances that the state will have
adequate personnel, funding, and authority under state law to carry out
the SIP (and is not prohibited by any provision of federal or state law
from carrying out the SIP or portion thereof), (ii) requires that the
state comply with the requirements respecting state boards under
section 128, and (iii) necessary assurances that, where the state has
relied on a local or regional government, agency, or instrumentality
for the implementation of any SIP provision, the state has
responsibility for ensuring adequate implementation of such SIP
provision.
a. South Dakota's response to this requirement: SDCL 34A-1-4, 34A-
1-7 through 34A-1-10 provides DENR with adequate personnel to carry out
South Dakota's SIP and related issues. SDCL 34A-1-57 through 34A-1-60,
and DENR's agreement with EPA for 103 and 105 grants and associated
matching state funds provides DENR with the funding necessary to carry
out South Dakota's SIP and related issues. SDCL 34A-1 provides DENR
with the legal authority
[[Page 27627]]
to carry out South Dakota's SIP and related issues.
b. EPA Analysis: South Dakota's SIP meets the requirements of
section 110(a)(2)(E) for the 1997 ozone NAAQS. SDCL 34A-1-57 through
34A-1-60 provides adequate authority for the State of South Dakota and
the DENR to carry out its SIP obligations with respect to the 1997
ozone NAAQS. The State receives sections 103 and 105 grant funds
through its Performance Partnership Grant along with required state
matching funds to provide funding necessary to carry out South Dakota's
SIP requirements. South Dakota's resources meet the requirements of CAA
section 110(a)(2)(E). Finally, SDCL 1-40-25.1 requires the Board of
Minerals and Environment to be composed in accordance with section 128
of the CAA.
7. Stationary source monitoring and reporting: Section 110(a)(2)(F)
requires (i) the installation, maintenance, and replacement of
equipment, and the implementation of other necessary steps, by owners
or operators of stationary sources to monitor emissions from such
sources, (ii) period reports on the nature and amounts of emissions and
emissions-related data from such sources, and (iii) correlation of such
reports by the state agency with any emission limitations or standards
established pursuant to the Act, which reports shall be available at
reasonable times for public inspection.
a. South Dakota's response to this requirement: The rules in ARSD
Chapter 74:36:04 (Operating permits for minor sources), 74:35:05
(Operating permits for part 70 sources), 74:37:11 (Performance testing)
and 74:36:13 (Continuous emission monitoring systems) establish a
system to monitor emissions from stationary sources and periodic
emissions reports. Authority to promulgate these rules is contained in
SDCL 34A-a-6 and SDCL 34A-1-12.
b. EPA Analysis: South Dakota's SIP provides for monitoring,
recordkeeping, and reporting requirements for sources subject to minor
and major source permitting. As mentioned above, the SIP contains no
other, specific emissions limitations on ozone or its precursors. South
Dakota's SIP therefore meets the requirements of section 110(a)(2)(F)
for the 1997 ozone NAAQS.
8. Emergency powers: Section 110(a)(2)(G) requires states to
provide for authority to address activities causing imminent and
substantial endangerment to public health, including contingency plans
to implement the emergency episode provisions in their SIPs.
a. South Dakota's response to this requirement: The rules in ARSD
Chapter 74:36:03 (Air quality episodes) adopt by reference the criteria
in 40 CFR 51.151 as the air quality episode plan to address activities
causing imminent and substantial endangerment to public health,
including contingency plans to implement the emergency episode
provisions of the South Dakota SIP. Authority to promulgate these rules
is contained in SDCL 34A-1-6, 34A-1-15, and 34A-1-45. The episode
criteria specified in this chapter for ozone are based on an 8-hour
average ozone level at a monitoring site. These criteria have
previously been approved by EPA as adequate to address ozone emergency
episodes.
b. EPA analysis: SDCL 34A-1-45 provides DENR with general emergency
authority comparable to that in section 303 of the Act. The SIP also
requires DENR to follow criteria in 40 CFR 51.151 in proclaiming an
emergency episode and to develop a contingency plan. The contingency
plan, though, has not itself been incorporated into the SIP. However,
South Dakota has not monitored any values above the priority cut point
for ozone. See 40 CFR 51.150(b)(5). The SIP therefore meets the
requirements of 110(a)(2)(G) for the 1997 ozone NAAQS.
9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs
provide for revision of such plan (i) from time to time as may be
necessary to take account of revisions of such national primary or
secondary ambient air quality standard or the availability of improved
or more expeditious methods of attaining such standard, and (ii),
except as provided in paragraph (3)(C), whenever the Administrator
finds on the basis of information available to the Administrator that
the SIP is substantially inadequate to attain the NAAQS which it
implements or to otherwise comply with any additional requirements
under this Act.
a. South Dakota's response to this requirement: SDCL 34A-1-6
provides DENR with the authority to revise South Dakota's SIP in
response to changes to the federal NAAQS, availability of improved
methods for attaining the federal standards, or in response to an EPA
finding that the SIP is substantially inadequate.
b. EPA analysis: South Dakota's statutory provision at SDCL 34A-1-6
gives DENR sufficient authority to meet the requirements of
110(a)(2)(H).
10. Nonattainment Area Plan or Plan Revision under Part D: Section
110(a)(2)(I) requires that a SIP or SIP revision for an area designated
as a nonattainment area must meet the applicable requirements of part D
of this subchapter (relating to nonattainment areas).
a. EPA analysis for Section 110(a)(2)(I): As noted above, the
specific nonattainment area plan requirements of section 110(a)(2)(I)
are subject to the timing requirement of section 172, not the timing
requirement of section 110(a)(1). This element is therefore not
applicable to this action. EPA will take action on part D attainment
plans through a separate process.
11. Consultation with government officials, public notification,
PSD and visibility protection: Section 110(a)(2)(J) requires that each
SIP meet the applicable requirements of section 121 of this title
(relating to consultation), section 127 of this title (relating to
public notification), and part C of this subchapter (relating to
prevention of significant deterioration of air quality and visibility
protection).
a. South Dakota's response to this requirement: SDCL 34A-1-1 and
34-1-10 provide DENR with the authority to consult with local
governments, other states, federal government, etc. SDCL 1-40-31 and
34A-1-9 provide DENR with the authority to collect and disseminate
information and provide full public inspection and disclosure of all
non-confidential public records related to DENR and those activities
within its jurisdiction. The public is notified of any concentrations
that exceed the NAAQS through DENR's Air Quality program website that
contains the daily concentrations updated hourly from five sites
covering 17 parameters from continuous analyzers and monitors located
throughout the state. Four of these sites report hourly ozone levels to
the website and to the AirNow EPA database. Through this site, the
public is notified of high concentration periods. The rules in ARSD
Chapter 74:36:09 (Prevention of significant deterioration) adopt by
reference federal regulations under 40 CFR parts 51 and 52 and provide
DENR with regulations necessary to meet the applicable requirements of
part C of the federal CAA related to PSD and visibility protection.
South Dakota's PSD rules were approved in South Dakota's SIP on January
22, 2008. Authority to promulgate these rules is contained in SDCL 34A-
1-6.
b. EPA Analysis: The State has demonstrated that it has the
authority and rules in place to provide a process of consultation with
general purpose local governments, designated organizations of elected
officials of local governments and any Federal Land Manager having
authority over federal land to which the SIP applies,
[[Page 27628]]
consistent with the requirements of CAA section 121. Furthermore, EPA
previously addressed the requirements of CAA section 127 for the South
Dakota SIP. (45 FR 58528, Sept. 4, 1980.)
As discussed above, the State has a SIP-approved PSD program that
incorporates by reference the federal program at 40 CFR 52.21. EPA has
further evaluated South Dakota's SIP-approved PSD program in this
proposed action under IV.3, element 110(a)(2)(C).
Finally, with regard to the applicable requirements for visibility
protection, EPA recognizes that states are subject to visibility and
regional haze program requirements under part C of the act. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus we
find that there are no applicable visibility requirements under section
110(a)(2)(J) when a new NAAQS becomes effective. In conclusion, the
South Dakota SIP meets the requirements of section 110(a)(2)(J) for the
1997 ozone NAAQS.
12. Air quality and modeling/data: Section 110(a)(2)(K) requires
that each SIP provide for (i) the performance of such air quality
modeling as the Administrator may prescribe for the purpose of
predicting the effect on ambient air quality of any emissions of any
air pollutant for which the Administrator has established a NAAQS, and
(ii) the submission, upon request, of data related to such air quality
modeling to the Administrator.
a. South Dakota's response to this requirement: The rules in ARSD
Chapter 74:36:04 (Operating permit for minor sources), 74:36:05
(Operating permit for part 70 sources), 74:36:09 (Prevention of
significant deterioration), and 74:36:10 (New source review) provide
DENR with the authority to perform air quality modeling for predicting
effects on air quality of emissions of any NAAQS pollutant and
submission of such data to EPA upon request. Authority to promulgate
these rules is contained in SDCL 34A-1-6 and 34A-1-9.
b. EPA Analysis: South Dakota's SIP meets the requirements of CAA
section 110(a)(2)(K) for the 1997 ozone NAAQS. In particular, South
Dakota's PSD program incorporates by reference the federal program at
40 CFR 52.21, including the provision at 40 CFR 52.21(l)(1) requiring
that estimates of ambient air concentrations be based on applicable air
quality models specified in Appendix W of 40 CFR part 51, and the
provision at 40 CFR 52.21(l)(2) requiring that modification or
substitution of a model specified in Appendix W must be approved by the
Administrator. As a result, the SIP provides for such air quality
modeling as the Administrator has prescribed.
13. Permitting fees: Section 110(a)(2)(L) requires SIPs to require
the owner or operator of each major stationary source to pay to the
permitting authority, as a condition of any permit required under this
act, a fee sufficient to cover (i) the reasonable costs of reviewing
and acting upon any application for such a permit, and (ii) if the
owner or operator receives a permit for such source, the reasonable
costs of implementing and enforcing the terms and conditions of any
such permit (not including any court costs or other costs associated
with any enforcement action), until such fee requirement is superseded
with respect to such sources by the Administrator's approval of a fee
program under title V.
a. South Dakota's response to this requirement: The DENR has an
approved title V operating permit program (61 FR 2720, Jan. 29, 1996)
that requires major stationary sources to pay permitting fees to cover
the cost of reviewing, approving, implementing and enforcing the title
V permit.
b. EPA Analysis: South Dakota's approved title V operating permit
program meets the requirements of CAA section 110(a)(2)(L) for the 1997
ozone NAAQS. Final approval of the title V operating permit program
became effective February 28, 1996. (See 61 FR 2720, Jan. 29, 1996.) As
discussed in the notice proposing approval of the title V program (60
FR 2917, Jan. 12, 1995), the State demonstrated that the fees collected
were sufficient to administer the program.
14. Consultation/participation by affected local entities: Section
110(a)(2)(M) requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP.
a. South Dakota's response to this requirement: SDCL 34A-1-1, 34A-
1-10 provides DENR with the authority to provide for consultation and
participation in South Dakota's SIP development by local political
subdivision affected by the SIP. Cooperation by DENR with other
agencies provides for the consultation, advise, and cooperation with
other state, local, industries, other states, interstate or inter local
agencies, and the federal government, and with interested persons or
groups on air pollution control issues.
b. EPA Analysis: South Dakota's submittal meets the requirements of
CAA section 110(a)(2)(M) for the 1997 ozone NAAQS.
V. What action is EPA taking?
In this action, EPA is proposing to approve in full the following
section 110(a)(2) infrastructure elements for South Dakota for the 1997
ozone NAAQS: (A), (B), (D)(ii), (E), (F), (G), (H), (J), (K), (L), (M).
EPA proposes to approve the section 110(a)(2)(C) infrastructure element
in full in the event that South Dakota takes one of the actions
described in the discussion of that element; in the alternative, EPA
proposes to disapprove the section 110(a)(2)(C) element to the extent
described and to otherwise approve this element. EPA is taking no
action on infrastructure elements (D)(i) and (I) for the 1997 ozone
NAAQS. EPA also proposes to approve the portion of South Dakota's June
14, 2010 SIP submission that revises South Dakota's PSD program to
incorporate by reference the federal program at 40 CFR 52.21 as of July
1, 2009, except to the extent that revision applies PSD permitting to
GHG emissions increases from GHG-emitting sources below the thresholds
set out in the Tailoring Rule, 75 FR 31514.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves some state law as meeting Federal
requirements and disapproves other state law because it does not meet
Federal requirements; this proposed action does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
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
[[Page 27629]]
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 rule does not have Tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
Tribal governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Dated: May 4, 2011.
Judith Wong,
Acting Regional Administrator, Region 8.
[FR Doc. 2011-11723 Filed 5-11-11; 8:45 am]
BILLING CODE 6560-50-P
