Approval and Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 8-hour Ozone National Ambient Air Quality Standards; South Dakota, 43912-43918 [2011-18425]
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Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations
local permitting authorities must
comply with the appropriate PSD
Federal Implementation Plan (FIP) or
SIP requirements with respect to ozone.
EPA has had a standard approach in
its PSD SIP and FIP rules of not
mandating the use of a particular model
for all circumstances, instead treating
the choice of a particular method for
analyzing ozone impacts as
circumstance-dependent. EPA then
determines whether the State’s
implementation plan revision submittal
meets the PSD SIP requirements. As
explained above, in this case the
Colorado SIP meets the requirements of
40 CFR part 51.166(k) and (l).
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III. Final Action
In this action, EPA is approving in
full the following section 110(a)(2)
infrastructure elements for Colorado for
the 1997 ozone NAAQS: (A), (B), (C),
(D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J), (K),
(L), and (M). EPA is taking no action
today on section 110(a)(2)(E)(ii) for the
1997 ozone NAAQS. EPA will address
this sub-element in a later action.
IV. 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 USC 7410(k), 40 CFR 52.02(a)).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves some state law as
meeting Federal requirements and
disapproves other state law because it
does not meet Federal requirements;
this action does not impose additional
requirements beyond those imposed by
state law. For that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive 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
Order 13132 (64 FR 43255, August 10,
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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 USC 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.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by September 20,
2011. Filing a petition for
reconsideration by the Administrator of
this final rule does not affect the finality
of this action for the purposes of judicial
review nor does it extend the time
within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. This action may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incoporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: June 30, 2011.
James B. Martin,
Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for Part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart G—Colorado
2. Section 52.353 is added to read as
follows:
■
§ 52.353 Section 110(a)(2) infrastructure
requirements.
On January 7, 2008 James B. Martin,
Executive Director of the Colorado
Department of Public Health and
Environment for the State of Colorado,
submitted a certification letter which
provides the State of Colorado’s SIP
provisions which meet the requirements
of CAA Section 110(a)(1) and (2)
relevant to the 1997 Ozone NAAQS.
[FR Doc. 2011–18421 Filed 7–21–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2010–0301; FRL–9441–6]
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: Final rule.
AGENCY:
EPA is approving the State
Implementation Plan (SIP) submission
from the State of South Dakota to
demonstrate that the SIP meets the
requirements of the Clean Air Act (CAA)
for the National Ambient Air Quality
Standards (NAAQS) promulgated for
ozone on July 18, 1997. The CAA
requires that each state, after a new or
revised NAAQS is promulgated, review
their SIPs to ensure that they meet the
requirements of the ‘‘infrastructure
elements’’. The State of South Dakota
SUMMARY:
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submitted a certification, dated
February 1, 2008, that its SIP met these
requirements for the 1997 ozone
NAAQS; the certification was
determined to be complete on March 27,
2008. In addition, EPA is partially
approving a June 14, 2010 SIP submittal
from the State that revises the State’s
Prevention of Significant Deterioration
(PSD) program.
DATES: Effective Date: This final rule is
effective August 22, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R08–OAR–2010–0301. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
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:
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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. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews
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I. Background
On July 18, 1997, EPA promulgated
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 submissions 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 to certify that fact via
a letter to EPA.1
On March 27, 2008, EPA published a
final rule entitled, ‘‘Completeness
Findings for Section 110(a) State
Implementation Plans for the 8-hour
Ozone NAAQS’’ (73 FR 16205). In the
rule, EPA made a finding for each state
that it had submitted or had 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 South Dakota
had submitted a complete SIP
(‘‘Infrastructure SIP’’) to meet these
requirements.
On May 12, 2011, EPA published a
notice of proposed rulemaking (NPR) for
the State of South Dakota (76 FR 27622)
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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to act on the State’s Infrastructure SIP
for the 1997 ozone NAAQS.
Specifically, in the NPR EPA proposed
approval of South Dakota’s SIP as
meeting the requirements of all section
110(a)(2) elements with respect to the
1997 ozone NAAQS, aside from
elements 110(a)(2)(D)(i), 110(a)(2)(I),
and the visibility protection
requirement of element 110(a)(2)(J), on
which EPA did not propose action.2
EPA proposed to approve element
110(a)(2)(C) for the 1997 ozone NAAQS
in the event that the State clarified (or
modified) its February 1, 2008
certification to ensure consistency with
two rules related to regulation of
greenhouse gas (GHG) emissions:
‘‘Prevention of Significant Deterioration
and Title V Greenhouse Gas Tailoring
Rule’’ (‘‘Tailoring Rule’’), 75 FR 31514
(June 3, 2010), and ‘‘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 prevention
of significant deterioration (PSD)
program to the extent that it applied
PSD permitting to greenhouse gas (GHG)
emissions increases from GHG-emitting
sources below thresholds set in the
Tailoring Rule. 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 previouslyapproved 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
proposed approval of the South Dakota
Infrastructure SIP for infrastructure
element (C) if either the State clarified
(or modified) 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
acted to withdraw from EPA
2 See the NPR (76 FR 27622) for further
explanation regarding the omission of elements
110(a)(2)(D)(i) and 110(a)(2)(I) from the proposal.
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consideration the remaining portion of
its PSD program submission that would
have applied PSD permitting to GHG
sources below the Tailoring Rule
thresholds. On May 9, 2011, EPA
received a letter from South Dakota
(dated May 5, 2011) clarifying 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, 2010.3
In the May 12, 2011 NPR, EPA also
proposed action on revisions to
Administrative Rules of South Dakota
(ARSD) Chapter 74:36:09 (PSD) from
South Dakota’s June 14, 2010 SIP
submission. The revisions to the State’s
PSD program updated the date of
incorporation by reference of the
Federal rules at 40 CFR 52.21 to July 1,
2009. EPA proposed to approve this
revision with the following exception.
Consistent with the Tailoring Rule and
the SIP PSD Narrowing Rule, EPA
proposed 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.
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Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that
address the infrastructure requirements
of CAA section 110(a)(1) and (2) for
ozone and PM2.5 NAAQS for various
states across the country. Commenters
on EPA’s recent proposals for some
states raised concerns about EPA
statements that it was not addressing
certain substantive issues in the context
of acting on the infrastructure SIP
submissions.4 The commenters
specifically raised concerns involving
provisions in existing SIPs and with
EPA’s statements that it would address
two issues separately and not as part of
actions on the infrastructure SIP
submissions: (i) Existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction at sources, that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); and (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that purport to
permit revisions to SIP approved
3 South Dakota’s May 5, 2011 clarification letter
is available in the docket for this action.
4 See, Comments of Midwest Environmental
Defense Center, dated May 31, 2011. Docket # EPA–
R05–OAR–2007–1179 (adverse comments on
proposals for three states in Region 5). EPA notes
that these public comments on another proposal are
not relevant to this rulemaking and do not have to
be directly addressed in this rulemaking. EPA will
respond to these comments in the appropriate
rulemaking action to which they apply.
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emissions limits with limited public
process or without requiring further
approval by EPA, that may be contrary
to the CAA (‘‘director’s discretion’’).
EPA notes that there are two other
substantive issues for which EPA
likewise stated that it would address the
issues separately: (i) Existing provisions
for minor source new source review
programs that may be inconsistent with
the requirements of the CAA and EPA’s
regulations that pertain to such
programs (‘‘minor source new source
review (NSR)’’); and (ii) existing
provisions for Prevention of Significant
Deterioration programs that may be
inconsistent with current requirements
of EPA’s ‘‘Final NSR Improvement
Rule,’’ 67 FR 80,186 (December 31,
2002), as amended by 72 FR 32,526
(June 13, 2007) (‘‘NSR Reform’’). In light
of the comments, EPA now believes that
its statements in various proposed
actions on infrastructure SIPs with
respect to these four individual issues
should be explained in greater depth
with respect to these issues.
EPA intended the statements in the
proposals concerning these four issues
merely to be informational, and to
provide general notice of the potential
existence of provisions within the
existing SIPs of some states that might
require future corrective action. EPA did
not want states, regulated entities, or
members of the public to be under the
misconception that the Agency’s
approval of the infrastructure SIP
submission of a given state should be
interpreted as a reapproval of certain
types of provisions that might exist
buried in the larger existing SIP for such
state. Thus, for example, EPA explicitly
noted that the Agency believes that
some states may have existing SIP
approved SSM provisions that are
contrary to the CAA and EPA policy,
but that ‘‘in this rulemaking, EPA is not
proposing to approve or disapprove any
existing state provisions with regard to
excess emissions during SSM of
operations at facilities.’’ EPA further
explained, for informational purposes,
that ‘‘EPA plans to address such State
regulations in the future.’’ EPA made
similar statements, for similar reasons,
with respect to the director’s discretion,
minor source NSR, and NSR Reform
issues. EPA’s objective was to make
clear that approval of an infrastructure
SIP for these ozone and PM2.5 NAAQS
should not be construed as explicit or
implicit reapproval of any existing
provisions that relate to these four
substantive issues.
Unfortunately, the commenters and
others evidently interpreted these
statements to mean that EPA considered
action upon the SSM provisions and the
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other three substantive issues to be
integral parts of acting on an
infrastructure SIP submission, and
therefore that EPA was merely
postponing taking final action on the
issue in the context of the infrastructure
SIPs. This was not EPA’s intention. To
the contrary, EPA only meant to convey
its awareness of the potential for certain
types of deficiencies in existing SIPs,
and to prevent any misunderstanding
that it was reapproving any such
existing provisions. EPA’s intention was
to convey its position that the statute
does not require that infrastructure SIPs
address these specific substantive issues
in existing SIPs and that these issues
may be dealt with separately, outside
the context of acting on the
infrastructure SIP submission of a state.
To be clear, EPA did not mean to imply
that it was not taking a full final agency
action on the infrastructure SIP
submission with respect to any
substantive issue that EPA considers to
be a required part of acting on such
submissions under section 110(k) or
under section 110(c). Given the
confusion evidently resulting from
EPA’s statements, however, we want to
explain more fully the Agency’s reasons
for concluding that these four potential
substantive issues in existing SIPs may
be addressed separately.
The requirement for the SIP
submissions at issue arises out of CAA
section 110(a)(1). That provision
requires that states must make a SIP
submission ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof)’’ and
that these SIPS are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. Section
110(a)(2) includes a list of specific
elements that ‘‘[e]ach such plan’’
submission must meet. EPA has
historically referred to these particular
submissions that states must make after
the promulgation of a new or revised
NAAQS as ‘‘infrastructure SIPs.’’ This
specific term does not appear in the
statute, but EPA uses the term to
distinguish this particular type of SIP
submission designed to address basic
structural requirements of a SIP from
other types of SIP submissions designed
to address other different requirements,
such as ‘‘nonattainment SIP’’
submissions required to address the
nonattainment planning requirements of
part D, ‘‘regional haze SIP’’ submissions
required to address the visibility
protection requirements of CAA section
169A, NSR permitting program
submissions required to address the
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requirements of part D, and a host of
other specific types of SIP submissions
that address other specific matters.
Although section 110(a)(1) addresses
the timing and general requirements for
these infrastructure SIPs, and section
110(a)(2) provides more details
concerning the required contents of
these infrastructure SIPs, EPA believes
that many of the specific statutory
provisions are facially ambiguous. In
particular, the list of required elements
provided in section 110(a)(2) contains a
wide variety of disparate provisions,
some of which pertain to required legal
authority, some of which pertain to
required substantive provisions, and
some of which pertain to requirements
for both authority and substantive
provisions.5 Some of the elements of
section 110(a)(2) are relatively
straightforward, but others clearly
require interpretation by EPA through
rulemaking, or recommendations
through guidance, in order to give
specific meaning for a particular
NAAQS.6
Notwithstanding that section 110(a)(2)
states that ‘‘each’’ SIP submission must
meet the list of requirements therein,
EPA has long noted that this literal
reading of the statute is internally
inconsistent, insofar as section
110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met
on the schedule provided for these SIP
submissions in section 110(a)(1).7 This
illustrates that EPA must determine
which provisions of section 110(a)(2)
may be applicable for a given
infrastructure SIP submission.
Similarly, EPA has previously decided
that it could take action on different
parts of the larger, general
‘‘infrastructure SIP’’ for a given NAAQS
5 For example, section 110(a)(2)(E) provides that
states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a substantive program to
address certain sources as required by part C of the
CAA; section 110(a)(2)(G) provides that states must
have both legal authority to address emergencies
and substantive contingency plans in the event of
such an emergency.
6 For example, section 110(a)(2)(D)(i) requires
EPA to be sure that each SIP contains adequate
provisions to prevent significant contribution to
nonattainment of the NAAQS in other states. This
provision contains numerous terms that require
substantial rulemaking by EPA in order to
determine such basic points as what constitutes
significant contribution. See, e.g., ‘‘Rule To Reduce
Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid
Rain Program; Revisions to the NOx SIP Call; Final
Rule,’’ 70 FR 25,162 (May 12, 2005)(defining,
among other things, the phrase ‘‘contribute
significantly to nonattainment’’).
7 See, e.g., Id., 70 FR 25,162, at 63–65 (May 12,
2005)(explaining relationship between timing
requirement of section 110(a)(2)(D) versus section
110(a)(2)(I)).
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without concurrent action on all
subsections, such as section
110(a)(2)(D)(i), because the Agency
bifurcated the action on these latter
‘‘interstate transport’’ provisions within
section 110(a)(2) and worked with states
to address each of the four prongs of
section 110(a)(2)(D)(i) with substantive
administrative actions proceeding on
different tracks with different
schedules.8 This illustrates that EPA
may conclude that subdividing the
applicable requirements of section
110(a)(2) into separate SIP actions may
sometimes be appropriate for a given
NAAQS where a specific substantive
action is necessitated, beyond a mere
submission addressing basic structural
aspects of the SIP. Finally, EPA notes
that not every element of section
110(a)(2) would be relevant, or as
relevant, or relevant in the same way,
for each new or revised NAAQS and the
attendant infrastructure SIP submission
for that NAAQS. For example, the
monitoring requirements that might be
necessary for purposes of section
110(a)(2)(B) for one NAAQS could be
very different than what might be
necessary for a different pollutant. Thus,
the content of an infrastructure SIP
submission to meet this element from a
state might be very different for an
entirely new NAAQS, versus a minor
revision to an existing NAAQS.9
Similarly, EPA notes that other types
of SIP submissions required under the
statute also must meet the requirements
of section 110(a)(2), and this also
demonstrates the need to identify the
applicable elements for other SIP
submissions. For example,
nonattainment SIPs required by part D
likewise have to meet the relevant
subsections of section 110(a)(2) such as
section 110(a)(2)(A) or (E). By contrast,
it is clear that nonattainment SIPs
would not need to meet the portion of
section 110(a)(2)(C) that pertains to part
C, i.e., the PSD requirement applicable
in attainment areas. Nonattainment SIPs
required by part D also would not need
to address the requirements of section
110(a)(2)(G) with respect to emergency
episodes, as such requirements would
issued separate guidance to states with
respect to SIP submissions to meet section
110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5
NAAQS. See, ‘‘Guidance for State Implementation
Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8–Hour Ozone and PM2.5
National Ambient Air Quality Standards,’’ from
William T. Harnett, Director Air Quality Policy
Division OAQPS, to Regional Air Division Director,
Regions I–X, dated August 15, 2006.
9 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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not be limited to nonattainment areas.
As this example illustrates, each type of
SIP submission may implicate some
subsections of section 110(a)(2) and not
others.
Given the potential for ambiguity of
the statutory language of section
110(a)(1) and (2), EPA believes that it is
appropriate for EPA to interpret that
language in the context of acting on the
infrastructure SIPs for a given NAAQS.
Because of the inherent ambiguity of the
list of requirements in section 110(a)(2),
EPA has adopted an approach in which
it reviews infrastructure SIPs against
this list of elements ‘‘as applicable.’’ In
other words, EPA assumes that Congress
could not have intended that each and
every SIP submission, regardless of the
purpose of the submission or the
NAAQS in question, would meet each
of the requirements, or meet each of
them in the same way. EPA elected to
use guidance to make recommendations
for infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued
guidance making recommendations for
the infrastructure SIP submissions for
both the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS.10 Within this
guidance document, EPA described the
duty of states to make these submissions
to meet what the Agency characterized
as the ‘‘infrastructure’’ elements for
SIPs, which it further described as the
‘‘basic SIP requirements, including
emissions inventories, monitoring, and
modeling to assure attainment and
maintenance of the standards.’’ 11 As
further identification of these basic
structural SIP requirements,
‘‘attachment A’’ to the guidance
document included a short description
of the various elements of section
110(a)(2) and additional information
about the types of issues that EPA
considered germane in the context of
such infrastructure SIPs. EPA
emphasized that the description of the
basic requirements listed on attachment
A was not intended ‘‘to constitute an
interpretation of’’ the requirements, and
was merely a ‘‘brief description of the
10 See, ‘‘Guidance on SIP Elements Required
Under Section 110(a)(1) and (2) for the 1997 8-hour
Ozone and PM2.5 National Ambient Air Quality
Standards,’’ from William T. Harnett, Director, Air
Quality Policy Division, to Air Division Directors,
Regions I–X, dated October 2, 2007 (the ‘‘2007
Guidance’’). EPA issued comparable guidance for
the 2006 PM2.5 NAAQS entitled ‘‘Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2)
for the 2006 24-Hour Fine Particle (PM2.5) National
Ambient Air Quality Standards (NAAQS),’’ from
William T. Harnett, Director, Air Quality Policy
Division, to Regional Air Division Directors,
Regions I–X, dated September 25, 2009 (the ‘‘2009
Guidance’’).
11 Id., at page 2.
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required elements.’’ 12 EPA also stated
its belief that with one exception, these
requirements were ‘‘relatively self
explanatory, and past experience with
SIPs for other NAAQS should enable
States to meet these requirements with
assistance from EPA Regions.’’ 13 For the
one exception to that general
assumption, however, i.e., how states
should proceed with respect to the
requirements of section 110(a)(2)(G) for
the 1997 PM2.5 NAAQS, EPA gave
much more specific recommendations.
But for other infrastructure SIP
submittals, and for certain elements of
the submittals for the 1997 PM2.5
NAAQS, EPA assumed that each state
would work with its corresponding EPA
regional office to refine the scope of a
state’s submittal based on an assessment
of how the requirements of section
110(a)(2) should reasonably apply to the
basic structure of the SIP for the
NAAQS in question.
Significantly, the 2007 Guidance did
not explicitly refer to the SSM,
director’s discretion, minor source NSR,
or NSR Reform issues as among specific
substantive issues EPA expected states
to address in the context of the
infrastructure SIPs, nor did EPA give
any more specific recommendations
with respect to how states might address
such issues even if they elected to do so.
The SSM and director’s discretion
issues implicate section 110(a)(2)(A),
and the minor source NSR and NSR
Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance,
however, EPA did not indicate to states
that it intended to interpret these
provisions as requiring a substantive
submission to address these specific
issues in the context of the
infrastructure SIPs for these NAAQS.
Instead, EPA’s 2007 Guidance merely
indicated its belief that the states should
make submissions in which they
established that they have the basic SIP
structure necessary to implement,
maintain, and enforce the NAAQS. EPA
believes that states can establish that
they have the basic SIP structure,
notwithstanding that there may be
potential deficiencies within the
existing SIP. Thus, EPA’s proposals
mentioned these issues not because the
Agency considers them issues that must
be addressed in the context of an
12 Id.,
at attachment A, page 1.
at page 4. In retrospect, the concerns raised
by commenters with respect to EPA’s approach to
some substantive issues indicates that the statute is
not so ‘‘self explanatory,’’ and indeed is sufficiently
ambiguous that EPA needs to interpret it in order
to explain why these substantive issues do not need
to be addressed in the context of infrastructure SIPs
and may be addressed at other times and by other
means.
13 Id.,
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infrastructure SIP as required by section
110(a)(1) and (2), but rather because
EPA wanted to be clear that it considers
these potential existing SIP problems as
separate from the pending infrastructure
SIP actions.
EPA believes that this approach to the
infrastructure SIP requirement is
reasonable, because it would not be
feasible to read section 110(a)(1) and (2)
to require a top to bottom, stem to stern,
review of each and every provision of an
existing SIP merely for purposes of
assuring that the state in question has
the basic structural elements for a
functioning SIP for a new or revised
NAAQS. Because SIPs have grown by
accretion over the decades as statutory
and regulatory requirements under the
CAA have evolved, they may include
some outmoded provisions and
historical artifacts that, while not fully
up to date, nevertheless may not pose a
significant problem for the purposes of
‘‘implementation, maintenance, and
enforcement’’ of a new or revised
NAAQS when EPA considers the overall
effectiveness of the SIP. To the contrary,
EPA believes that a better approach is
for EPA to determine which specific SIP
elements from section 110(a)(2) are
applicable to an infrastructure SIP for a
given NAAQS, and to focus attention on
those elements that are most likely to
need a specific SIP revision in light of
the new or revised NAAQS. Thus, for
example, EPA’s 2007 Guidance
specifically directed states to focus on
the requirements of section 110(a)(2)(G)
for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA
regulations for emergency episodes for
this NAAQS and an anticipated absence
of relevant provisions in existing SIPs.
Finally, EPA believes that its
approach is a reasonable reading of
section 110(a)(1) and (2) because the
statute provides other avenues and
mechanisms to address specific
substantive deficiencies in existing SIPs.
These other statutory tools allow the
Agency to take appropriate tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a SIP is substantially
inadequate to attain or maintain the
NAAQS, to mitigate interstate transport,
or otherwise to comply with the CAA.14
Section 110(k)(6) authorizes EPA to
correct errors in past actions, such as
14 EPA has recently issued a SIP call to rectify a
specific SIP deficiency related to the SSM issue.
See, ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revision,’’ 74 FR 21,639
(April 18, 2011).
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past approvals of SIP submissions.15
Significantly, EPA’s determination that
an action on the infrastructure SIP is not
the appropriate time and place to
address all potential existing SIP
problems does not preclude the
Agency’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action at a later time. For
example, although it may not be
appropriate to require a state to
eliminate all existing inappropriate
director’s discretion provisions in the
course of acting on the infrastructure
SIP, EPA believes that section
110(a)(2)(A) may be among the statutory
bases that the Agency cites in the course
of addressing the issue in a subsequent
action.16
II. Response to Comments
EPA did not receive any comments on
the May 12, 2011, NPR (76 FR 27622).
III. Final Action
In this action, EPA is approving the
following section 110(a)(2)
infrastructure elements for South Dakota
for the 1997 ozone NAAQS: (A), (B), (C),
(D)(ii), (E), (F), (G), (H), (J), (K), (L), (M).
EPA is also approving 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.
IV. 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 USC 7410(k), 40 CFR 52.02(a)).
Thus, in reviewing SIP submissions,
15 EPA has recently utilized this authority to
correct errors in past actions on SIP submissions
related to PSD programs. See, ‘‘Limitation of
Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’
75 FR 82,536 (Dec. 30, 2010). EPA has previously
used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency
determined it had approved in error. See, e.g., 61
FR 38,664 (July 25, 1996) and 62 FR 34,641 (June
27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67,062
(November 16, 2004) (corrections to California SIP);
and 74 FR 57,051 (November 3, 2009) (corrections
to Arizona and Nevada SIPs).
16 EPA has recently disapproved a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42,342 at
42,344 (July 21,2010)(proposed disapproval of
director’s discretion provisions); 76 FR 4,540 (Jan.
26, 2011)(final disapproval of such provisions).
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EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves some state law as
meeting Federal requirements and
disapproves other state law because it
does not meet Federal requirements;
this action does not impose additional
requirements beyond those imposed by
state law. For that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
USC 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
USC 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and,
State citation
• 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.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by September 20,
2011. Filing a petition for
reconsideration by the Administrator of
this final rule does not affect the finality
of this action for the purposes of judicial
State
effective
date
Title/subject
*
*
*
review nor does it extend the time
within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. This action may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: June 30, 2011.
James B. Martin,
Acting Regional Administrator. Region 8.
■
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for Part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.2170 is amended by:
a. In paragraph (c)(1) revise the entries
under 74:36:09, Prevention of
Significant Deterioration, for
‘‘74:36:09:02’’ and ‘‘74:36:09:03’’.
■ b. In paragraph (e), add entry for ‘‘XI’’,
Section 110(a)(2) Infrastructure
Requirements for the 1997 8-Hour
Ozone NAAQS. The revisions and
addition read as follows:
■
■
Subpart QQ—South Dakota
§ 52.2170
*
Identification of Plan.
*
*
(c) * * *
(1) * * *
*
EPA approval date and citation
*
*
*
Explanations
*
*
*
*
74:36:09 Prevention of Significant Deterioration
*
Prevention of significant deterioration.
*
6/28/10
74:36:09:03 ...............................
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*
*
74:36:09:02 ...............................
Public participation ...................
6/28/10
*
*
*
VerDate Mar<15>2010
*
*
18:10 Jul 21, 2011
*
6/30/11, 7/22/11 [insert page
number where the document
begins].
6/30/11, 7/22/11 [insert page
number where the document
begins].
(e) * * *
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Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Rules and Regulations
Name of nonregulatory
SIP provision
*
*
XI. Section 110(a)(2) Infrastructure Requirements for
the 1997 8-hour Ozone
NAAQS.
*
*
*
*
Applicable
geographic or
non-attainment
area
Statewide
*
[FR Doc. 2011–18425 Filed 7–21–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2010–0298; FRL–9440–6]
Approval and Promulgation of State
Implementation Plan Revisions;
Infrastructure Requirements for the
1997 8-Hour Ozone National Ambient
Air Quality Standard; Montana
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is partially approving
and partially disapproving the State
Implementation Plan (SIP) submission
from the State of Montana to
demonstrate that the SIP meets the
requirements of Sections 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 SIPs to ensure that they meet the
requirements of the ‘‘infrastructure
elements’’ of section 110(a)(2). The State
of Montana submitted two certifications,
dated November 28, 2007 and December
22, 2009, that its SIP met these
requirements for the 1997 ozone
NAAQS. The November 28, 2007
certification was determined to be
complete on March 27, 2008 (73 FR
16205).
SUMMARY:
Effective Date: This final rule is
effective August 22, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R08–OAR–2010–0298. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
emcdonald on DSK2BSOYB1PROD with RULES
DATES:
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19:39 Jul 21, 2011
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State submittal
date/adopted date
EPA approval data and
citation5
*
*
2/1/08 .....................................
*
6/30/11, 7/22/11 [insert page
number where the document begins].
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
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. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
On July 18, 1997, EPA promulgated
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
PO 00000
Frm 00116
Fmt 4700
Sfmt 4700
Explanations
*
*
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
a state develops and submits its SIP for
a new or revised NAAQS affects the
content of the submission. The contents
of such SIP submissions may also vary
depending upon what provisions a
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 to certify that fact via
a letter to EPA.1
On March 27, 2008, EPA published a
final rule entitled, ‘‘Completeness
Findings for Section 110(a) State
Implementation Plans for the 8-hour
Ozone NAAQS’’ (73 FR 16205). In the
rule, EPA made a finding for each state
that it had submitted or had 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 Montana had
submitted a complete SIP
(‘‘Infrastructure SIP’’) to meet these
requirements.
On May 19, 2011, EPA published a
notice of proposed rulemaking (NPR) for
the State of Montana (76 FR 28934) to
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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]]>Agencies
[Federal Register Volume 76, Number 141 (Friday, July 22, 2011)]
[Rules and Regulations]
[Pages 43912-43918]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18425]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2010-0301; FRL-9441-6]
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving the State Implementation Plan (SIP)
submission from the State of South Dakota to demonstrate that the SIP
meets the requirements of the Clean Air Act (CAA) for the National
Ambient Air Quality Standards (NAAQS) promulgated for ozone on July 18,
1997. The CAA requires that each state, after a new or revised NAAQS is
promulgated, review their SIPs to ensure that they meet the
requirements of the ``infrastructure elements''. The State of South
Dakota
[[Page 43913]]
submitted a certification, dated February 1, 2008, that its SIP met
these requirements for the 1997 ozone NAAQS; the certification was
determined to be complete on March 27, 2008. In addition, EPA is
partially approving a June 14, 2010 SIP submittal from the State that
revises the State's Prevention of Significant Deterioration (PSD)
program.
DATES: Effective Date: This final rule is effective August 22, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2010-0301. All documents in the docket are listed on
the https://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through 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. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
On July 18, 1997, EPA promulgated 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 submissions 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 to 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).
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On March 27, 2008, EPA published a final rule entitled,
``Completeness Findings for Section 110(a) State Implementation Plans
for the 8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a
finding for each state that it had submitted or had 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 South Dakota had submitted a complete SIP
(``Infrastructure SIP'') to meet these requirements.
On May 12, 2011, EPA published a notice of proposed rulemaking
(NPR) for the State of South Dakota (76 FR 27622) to act on the State's
Infrastructure SIP for the 1997 ozone NAAQS. Specifically, in the NPR
EPA proposed approval of South Dakota's SIP as meeting the requirements
of all section 110(a)(2) elements with respect to the 1997 ozone NAAQS,
aside from elements 110(a)(2)(D)(i), 110(a)(2)(I), and the visibility
protection requirement of element 110(a)(2)(J), on which EPA did not
propose action.\2\
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\2\ See the NPR (76 FR 27622) for further explanation regarding
the omission of elements 110(a)(2)(D)(i) and 110(a)(2)(I) from the
proposal.
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EPA proposed to approve element 110(a)(2)(C) for the 1997 ozone
NAAQS in the event that the State clarified (or modified) its February
1, 2008 certification to ensure consistency with two rules related to
regulation of greenhouse gas (GHG) emissions: ``Prevention of
Significant Deterioration and Title V Greenhouse Gas Tailoring Rule''
(``Tailoring Rule''), 75 FR 31514 (June 3, 2010), and ``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 prevention of significant deterioration (PSD) program to the
extent that it applied PSD permitting to greenhouse gas (GHG) emissions
increases from GHG-emitting sources below thresholds set in the
Tailoring Rule. 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 proposed approval of the South Dakota
Infrastructure SIP for infrastructure element (C) if either the State
clarified (or modified) 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
acted to withdraw from EPA
[[Page 43914]]
consideration the remaining portion of its PSD program submission that
would have applied PSD permitting to GHG sources below the Tailoring
Rule thresholds. On May 9, 2011, EPA received a letter from South
Dakota (dated May 5, 2011) clarifying 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.\3\
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\3\ South Dakota's May 5, 2011 clarification letter is available
in the docket for this action.
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In the May 12, 2011 NPR, EPA also proposed action on revisions to
Administrative Rules of South Dakota (ARSD) Chapter 74:36:09 (PSD) from
South Dakota's June 14, 2010 SIP submission. The revisions to the
State's PSD program updated the date of incorporation by reference of
the Federal rules at 40 CFR 52.21 to July 1, 2009. EPA proposed to
approve this revision with the following exception. Consistent with the
Tailoring Rule and the SIP PSD Narrowing Rule, EPA proposed 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.
Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and PM2.5 NAAQS
for various states across the country. Commenters on EPA's recent
proposals for some states raised concerns about EPA statements that it
was not addressing certain substantive issues in the context of acting
on the infrastructure SIP submissions.\4\ The commenters specifically
raised concerns involving provisions in existing SIPs and with EPA's
statements that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction at sources, that may be contrary to the CAA
and EPA's policies addressing such excess emissions (``SSM''); and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated that it would address the issues
separately: (i) Existing provisions for minor source new source review
programs that may be inconsistent with the requirements of the CAA and
EPA's regulations that pertain to such programs (``minor source new
source review (NSR)''); and (ii) existing provisions for Prevention of
Significant Deterioration programs that may be inconsistent with
current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR
80,186 (December 31, 2002), as amended by 72 FR 32,526 (June 13, 2007)
(``NSR Reform''). In light of the comments, EPA now believes that its
statements in various proposed actions on infrastructure SIPs with
respect to these four individual issues should be explained in greater
depth with respect to these issues.
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\4\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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EPA intended the statements in the proposals concerning these four
issues merely to be informational, and to provide general notice of the
potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing state provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues.
Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issue in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements, however, we want to explain more fully the Agency's
reasons for concluding that these four potential substantive issues in
existing SIPs may be addressed separately.
The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPS are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, NSR permitting program
submissions required to address the
[[Page 43915]]
requirements of part D, and a host of other specific types of SIP
submissions that address other specific matters.
Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\5\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\6\
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\5\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
\6\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each SIP contains adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in other states. This
provision contains numerous terms that require substantial
rulemaking by EPA in order to determine such basic points as what
constitutes significant contribution. See, e.g., ``Rule To Reduce
Interstate Transport of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program; Revisions to the
NOx SIP Call; Final Rule,'' 70 FR 25,162 (May 12,
2005)(defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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Notwithstanding that section 110(a)(2) states that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\7\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\8\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the SIP. Finally, EPA
notes that not every element of section 110(a)(2) would be relevant, or
as relevant, or relevant in the same way, for each new or revised NAAQS
and the attendant infrastructure SIP submission for that NAAQS. For
example, the monitoring requirements that might be necessary for
purposes of section 110(a)(2)(B) for one NAAQS could be very different
than what might be necessary for a different pollutant. Thus, the
content of an infrastructure SIP submission to meet this element from a
state might be very different for an entirely new NAAQS, versus a minor
revision to an existing NAAQS.\9\
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\7\ See, e.g., Id., 70 FR 25,162, at 63-65 (May 12,
2005)(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
\8\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
\9\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\10\ Within this guidance document, EPA
described the duty of states to make these submissions to meet what the
Agency characterized as the ``infrastructure'' elements for SIPs, which
it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \11\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the
[[Page 43916]]
required elements.'' \12\ EPA also stated its belief that with one
exception, these requirements were ``relatively self explanatory, and
past experience with SIPs for other NAAQS should enable States to meet
these requirements with assistance from EPA Regions.'' \13\ For the one
exception to that general assumption, however, i.e., how states should
proceed with respect to the requirements of section 110(a)(2)(G) for
the 1997 PM2.5 NAAQS, EPA gave much more specific recommendations. But
for other infrastructure SIP submittals, and for certain elements of
the submittals for the 1997 PM2.5 NAAQS, EPA assumed that each state
would work with its corresponding EPA regional office to refine the
scope of a state's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the SIP for the NAAQS in question.
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\10\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National
Ambient Air Quality Standards,'' from William T. Harnett, Director,
Air Quality Policy Division, to Air Division Directors, Regions I-X,
dated October 2, 2007 (the ``2007 Guidance''). EPA issued comparable
guidance for the 2006 PM2.5 NAAQS entitled ``Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality Standards
(NAAQS),'' from William T. Harnett, Director, Air Quality Policy
Division, to Regional Air Division Directors, Regions I-X, dated
September 25, 2009 (the ``2009 Guidance'').
\11\ Id., at page 2.
\12\ Id., at attachment A, page 1.
\13\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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Significantly, the 2007 Guidance did not explicitly refer to the
SSM, director's discretion, minor source NSR, or NSR Reform issues as
among specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however,
EPA did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in the context of the infrastructure SIPs for these
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that
the states should make submissions in which they established that they
have the basic SIP structure necessary to implement, maintain, and
enforce the NAAQS. EPA believes that states can establish that they
have the basic SIP structure, notwithstanding that there may be
potential deficiencies within the existing SIP. Thus, EPA's proposals
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions.
EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of the absence
of underlying EPA regulations for emergency episodes for this NAAQS and
an anticipated absence of relevant provisions in existing SIPs.
Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a SIP is substantially
inadequate to attain or maintain the NAAQS, to mitigate interstate
transport, or otherwise to comply with the CAA.\14\ Section 110(k)(6)
authorizes EPA to correct errors in past actions, such as past
approvals of SIP submissions.\15\ Significantly, EPA's determination
that an action on the infrastructure SIP is not the appropriate time
and place to address all potential existing SIP problems does not
preclude the Agency's subsequent reliance on provisions in section
110(a)(2) as part of the basis for action at a later time. For example,
although it may not be appropriate to require a state to eliminate all
existing inappropriate director's discretion provisions in the course
of acting on the infrastructure SIP, EPA believes that section
110(a)(2)(A) may be among the statutory bases that the Agency cites in
the course of addressing the issue in a subsequent action.\16\
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\14\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).
\15\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82,536 (Dec. 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR
34,641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67,062 (November 16,
2004) (corrections to California SIP); and 74 FR 57,051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\16\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July
21,2010)(proposed disapproval of director's discretion provisions);
76 FR 4,540 (Jan. 26, 2011)(final disapproval of such provisions).
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II. Response to Comments
EPA did not receive any comments on the May 12, 2011, NPR (76 FR
27622).
III. Final Action
In this action, EPA is approving the following section 110(a)(2)
infrastructure elements for South Dakota for the 1997 ozone NAAQS: (A),
(B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), (M). EPA is also
approving 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.
IV. 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 USC 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions,
[[Page 43917]]
EPA's role is to approve state choices, provided that they meet the
criteria of the CAA. Accordingly, this action merely approves some
state law as meeting Federal requirements and disapproves other state
law because it does not meet Federal requirements; this action does not
impose additional requirements beyond those imposed by state law. For
that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 USC 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 USC 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and,
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this 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.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 20, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: June 30, 2011.
James B. Martin,
Acting Regional Administrator. Region 8.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 52.2170 is amended by:
0
a. In paragraph (c)(1) revise the entries under 74:36:09, Prevention of
Significant Deterioration, for ``74:36:09:02'' and ``74:36:09:03''.
0
b. In paragraph (e), add entry for ``XI'', Section 110(a)(2)
Infrastructure Requirements for the 1997 8-Hour Ozone NAAQS. The
revisions and addition read as follows:
Subpart QQ--South Dakota
Sec. 52.2170 Identification of Plan.
* * * * *
(c) * * *
(1) * * *
----------------------------------------------------------------------------------------------------------------
State effective EPA approval date
State citation Title/subject date and citation Explanations
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
74:36:09 Prevention of Significant Deterioration
----------------------------------------------------------------------------------------------------------------
* * * * * * *
74:36:09:02..................... Prevention of 6/28/10........... 6/30/11, 7/22/11 ..................
significant [insert page
deterioration. number where the
document begins].
74:36:09:03..................... Public 6/28/10........... 6/30/11, 7/22/11 ..................
participation. [insert page
number where the
document begins].
----------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
[[Page 43918]]
----------------------------------------------------------------------------------------------------------------
Applicable
Name of nonregulatory SIP geographic or State submittal EPA approval data
provision non-attainment date/adopted date and citation\5\ Explanations
area
----------------------------------------------------------------------------------------------------------------
* * * * * * *
XI. Section 110(a)(2) Statewide 2/1/08............. 6/30/11, 7/22/11 ...................
Infrastructure Requirements for [insert page
the 1997 8-hour Ozone NAAQS. number where the
document begins].
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2011-18425 Filed 7-21-11; 8:45 am]
BILLING CODE 6560-50-P
