Partial Approval and Partial Disapproval and Promulgation of Air Quality Implementation Plans; South Dakota; Revisions to South Dakota Administrative Code; Permit: New and Modified Sources, 36419-36428 [2014-14031]
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Federal Register / Vol. 79, No. 124 / Friday, June 27, 2014 / Rules and Regulations
Pub. L. 107–295, 116 Stat. 2064; Department
of Homeland Security Delegation No. 0170.1.
ENVIRONMENTAL PROTECTION
AGENCY
2. Add a temporary § 165.T07–0471 to
read as follows:
40 CFR Part 52
■
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§ 165.T07–0471 Safety Zone; Fourth of
July Fireworks Displays Within Captain of
the Port Charleston Zone, SC.
(a) Regulated Area. The following
regulated areas are safety zones.
(1) Murrells Inlet, South Carolina. All
waters within a 1,000 yard radius
around Veterans Pier, from which the
fireworks will be launched, located on
the Atlantic Intracoastal Waterway.
(2) North Myrtle Beach, South
Carolina. All waters within a 500 yard
radius around Cherry Grove Pier, from
which the fireworks will be launched,
located on the Atlantic Ocean.
(b) Effective and enforcement periods.
Paragraph (a)(1) of this section will be
enforced from 9:00 p.m. until 10:15 p.m.
on July 4, 2014. Paragraph (a)(2) of this
section will be enforced from 9:00 p.m.
until 10:25 p.m. on July 4, 2014.
(c) Definition. The term ‘‘designated
representative’’ means Coast Guard
Patrol Commanders, including Coast
Guard coxswains, petty officers, and
other officers operating Coast Guard
vessels, and Federal, state, and local
officers designated by or assisting the
Captain of the Port Charleston in the
enforcement of the regulated area.
(d) Regulations. (1) All persons and
vessels are prohibited from entering,
transiting through, anchoring in, or
remaining within the regulated area
unless authorized by the Captain of the
Port Charleston or a designated
representative.
(2) Persons and vessels desiring to
enter, transit through, anchor in, or
remain within the regulated area may
contact the Captain of the Port
Charleston by telephone at 843–740–
7050, or a designated representative via
VHF radio on channel 16, to request
authorization. If authorization to enter,
transit through, anchor in, or remain
within the regulated area is granted by
the Captain of the Port Charleston or a
designated representative, all persons
and vessels receiving such authorization
must comply with the instructions of
the Captain of the Port Charleston or a
designated representative.
(3) The Coast Guard will provide
notice of the regulated area by Local
Notice to Mariners, Broadcast Notice to
Mariners, and on-scene designated
representatives.
Dated: June 17, 2014.
R. R. Rodriguez,
Captain, U.S. Coast Guard, Captain of the
Port Charleston.
[FR Doc. 2014–15137 Filed 6–26–14; 8:45 am]
BILLING CODE 9110–04–P
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[EPA–R08–OAR–2014–0241; FRL–9912–24Region 8]
Partial Approval and Partial
Disapproval and Promulgation of Air
Quality Implementation Plans; South
Dakota; Revisions to South Dakota
Administrative Code; Permit: New and
Modified Sources
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
partially approve and partially
disapprove State Implementation Plan
(SIP) revisions submitted by the State of
South Dakota on June 14, 2010, June 20,
2011, and July 29, 2013. All three SIP
submittals revise the portion of the
Administrative Rules of South Dakota
(ARSD) that pertain to the issuance of
South Dakota air quality permits. In
addition, the June 14, 2010 submittal
revises certain definitions and dates of
incorporation by reference. The June 14,
2010 submittal contains new, amended
and renumbered rules; the June 20, 2011
submittal contains new rules; and the
July 29, 2013 submittal contains
amended rules. In this rulemaking, we
are taking final action on all portions of
the June 14, 2010 submittal, except for
those portions of the submittal which do
not belong in the SIP. We are also taking
final action on portions of the June 20,
2011 submittal that were not acted on in
our April 18, 2014 rulemaking regarding
greenhouse gases and the State’s
Prevention of Significant Deterioration
(PSD) program. We are taking final
action on portions of the July 29, 2013
submittal that supersede portions of the
two previous submittals; the remainder
of the July 29, 2013 submittal will be
acted on at a later date. This action is
being taken under section 110 of the
Clean Air Act (CAA).
DATES: This final rule is effective July
28, 2014.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R08–OAR–2014–0241. All
documents in the docket are listed in
the www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
SUMMARY:
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36419
either electronically in
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 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, 8:00 a.m. to
4:00 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Kevin Leone, Air Program, Mailcode
8P–AR, Environmental Protection
Agency, Region 8, 1595 Wynkoop
Street, Denver, Colorado 80202–1129,
(303) 312–6227, or leone.kevin@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Response to Comments
III. Basis for our Final Action
IV. Final Action
V. Statutory and Executive Orders Review
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 initials ARSD mean or refer to
the Administrative Rules of South
Dakota.
(iii) The initials DENR mean the
Department of Environment and Natural
Resources.
(iv) The words EPA, we, us or our
mean or refer to the United States
Environmental Protection Agency.
(v) The words minor NSR mean NSR
established under section 110(a)(2)(C) of
the Act and 40 CFR 51.160 through
51.164.
(vi) The initials NAAQS mean or refer
to National Ambient Air Quality
Standards.
(vii) The initials NSR mean new
source review, a phrase intended to
encompass the stationary source
regulatory programs that regulate the
construction and modification of
stationary sources as provided under
CAA section 110(a)(2)(C), CAA Title I,
parts C and D, and 40 CFR 51.160
through 51.166.
(viii) The initials PSD mean or refer
to Prevention of Significant
Deterioration.
(ix) The initials SIP mean or refer to
State Implementation Plan.
(x) The words State or South Dakota
mean the State of South Dakota, unless
the context indicates otherwise.
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I. Background
The CAA (section 110(a)(2)(C)), 40
CFR 51.160, and the other statutory and
regulatory provisions discussed in this
final notice, require states to have
legally enforceable procedures in their
SIPs to prevent construction or
modification of a source if it would
violate any SIP control strategies or
interfere with attainment or
maintenance of the national ambient air
quality standards (NAAQS). Such minor
new source review (NSR) programs are
for pollutants from stationary sources
that do not require PSD or
nonattainment NSR permits. A state
may customize the requirements of its
minor NSR program as long as the
program meets the minimum statutory
and regulatory requirements.
On June 14, 2010, South Dakota
submitted revisions to its minor source
NSR program. The June 14, 2010
submittal included: (1) Revisions to the
definitions associated with the Air
Pollution Control Program to ensure the
definitions are current and consistent
with other chapters in the regulations.
These revisions include: grammatical
changes, renumbering, modified
definitions, new definitions and deleted
definitions; (2) Revisions to the date of
federal regulations referenced
throughout ARSD Article 74:36; (3)
Addition of a construction permit
program for new minor sources and
minor modifications to existing sources,
created by adding new Chapter 74:36:20
(Construction Permits for New Sources
or Modifications); and (4) Revisions to
the minor source operating permit
programs to incorporate the changes
associated with the new proposed
construction permit program.
In South Dakota’s regulations in
ARSD Article 74:36 that are currently
approved into the SIP, the minor source
construction permit and operating
permit programs are combined so, in
practice, a source receives one permit
from the State which serves as both a
construction and operating permit.1 The
revisions in the June 14, 2010 submittal
separate the two programs into a new
minor source construction permit
program and a minor source operating
permit program. Under the new
revisions, a source would first apply for
a construction permit before applying
for an operating permit. A cross-walk
table, which discusses the rule revisions
in Article 74:36 individually, and the
1 For major sources and major modifications, the
State already has two SIP-approved construction
permit programs (PSD and nonattainment NSR)
and, separately for major sources, a title V operating
permit program that has been approved through the
title V (not the SIP) process.
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action we are proposing, is included in
the docket for this rulemaking.
South Dakota’s June 14, 2010
submittal also contains rule revisions
that are not included in SIPs. These
rules, which we are not taking action on
here (i.e., New Source Performance
Standards, operating permits for part 70
sources, etc.), are outlined in the crosswalk table located in the docket for this
rulemaking.
South Dakota’s June 20, 2011,
submittal includes the following rule
revisions: (1) Revises Sections
74:36:01:01, 74:36:01:08, 74:36:01:15
and 74:36:09:02 related to regulation of
greenhouse gases (revisions to Sections
74:36:01:08, 74:36:01:15 and 74:36:09:02
to comply with EPA’s Greenhouse Gas
Tailoring Rule were previously acted
on); 2 EPA is taking final action on
74:36:01:01 in this rulemaking); (2)
Revises Chapter 74:36:20 by revising
Section 74:36:20:02 (Construction
Permits Required); and (3) Adds new
Section 74:36:20:02.01 (Initiating
Construction Prior to Permit Issuance).
Section 74:36:20:02.01 allows sources
who meet certain conditions to start
construction prior to receiving a permit
provided they meet the requirements in
that section. EPA is taking final action
on 74:36:20:02 and 74:36:20:02.01 in
this rulemaking.3
With respect to South Dakota’s July
29, 2013 submittal, we are only taking
final action on the following revisions:
(1) The removal of section
74:36:04:03.01 (Minor Source Operating
Permit Variance); and (2) Revisions to
section 74:36:10 (New Source Review).
In our April 16, 2014 proposed action
(79 FR 21424), we proposed to: (1)
Approve 74:36:01:01 (Definitions);
74:36:02 (Ambient Air Quality);
74:36:03 (Air Quality Episodes);
74:36:04 (Operating Permits for Minor
Sources); 74:36:10 (New Source Review);
74:36:11 (Performance Testing);
74:36:12 (Control of Visible Emissions);
74:36:13 (Continuous Emissions
Monitoring); 74:36:18 (Regulations for
State Facilities in the Rapid City Area);
and 74:36:20 (Construction Permits for
New Sources or Modifications);
74:36:01:01(73) (Subject to Regulation);
the deletion of 74:36:04:03.01 (Minor
Source Operating Permit Variance); (2)
Disapprove 74:36:20:02.01 (Initiating
Construction Prior to Permit Issuance);
2 On February 11, 2014 (79 FR 8130) EPA
proposed action on these provisions. EPA finalized
its action on April 18, 2014 (79 FR 21852).
3 Under a consent decree, by May 30, 2014, EPA
is required to sign a notice of final action to
approve, disapprove, approve in part and
disapprove in part, or conditionally approve this
June 20, 2011 SIP submittal. WildEarth Guardians
v. EPA, Civil Action No. 1:12–cv–03307 (D. Colo.).
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the phrase: ‘‘unless it meets the
requirements in 74:36:20:02.01’’ in
74:36:04:20:02 (Construction Permit
Required); (3) Not take action on
74:36:05 (Operating Permits for Part 70
Sources); 74:36:07 (New Source
Performance Standards); 74:36:08
(National Emission Standards for
Hazardous Air Pollutants); 74:36:09
(Prevention of Significant
Deterioration); 74:36:16 (Acid Rain
Program); and 74:36:19 (Mercury Budget
Trading Program).
We provided a detailed explanation of
the bases for our proposal. See 79 FR
21426–21429. We invited comment on
all aspects of our proposal and provided
a 30-day comment period. The comment
period ended on May 16, 2014.
In this action, we are responding to
the comments we received and taking
final rulemaking action on the rules
from the State’s June 14, 2010, June 20,
2011, and July 29, 2013 submittals.
II. Response to Comments
In response to our April 16, 2014
proposed rulemaking, we received
comments from Department of
Environment and Natural Resources
(DENR) Secretary Steven M. Pirner on
behalf of the State of South Dakota. In
this section, we summarize these
comments and provide our responses.
Comment: The comments explain that
DENR submitted a draft copy of ARSD
74:36:20:02.01 in December 2010 to EPA
for informal comments prior to
beginning the State’s formal rule making
process; and that EPA provided
preliminary comments back to DENR
via email on January 11, 2011. DENR’s
comments on our proposal suggest that
DENR notified EPA that those
preliminary concerns were addressed in
ARSD 74:36:20:02.01(1),
74:36:20:02.01(2) and 74:36:20:02.01(6).
DENR’s comments further explain that it
believed EPA’s concerns were addressed
at that time, since EPA did not provide
the same comment during the public
notice phase of the rule making.
Response: EPA disagrees with this
comment. While we aim to provide
comments before and during a state’s
rule making process, the CAA neither
requires that EPA comment on proposed
SIP rules, nor does it preclude EPA from
carrying out its statutory duty to
disapprove an inadequate SIP if EPA
does not provide comments to a state.
The notion that EPA’s silence suggests
a SIP is approvable—simply because
EPA did not comment during the State’s
formal rule making process—has no
support in the Act, it is contrary to the
purposes of the Act and EPA’s express
obligation to approve only SIP
submittals that meet the requirements of
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the Act, as explained elsewhere in this
final action. Moreover, nothing in EPA’s
preliminary comments suggested that
the State’s draft rules would be
approvable if the State were to make the
suggested changes.4
DENR comments indicate that it
provided notification to us that our
preliminary concerns were addressed by
provisions in ARSD 74:36:20:02.01(1),
74:36:20:02.01(2) and 74:36:20:02.01(6).
The comment does not cite to a
particular communication from the
State. Therefore, we are unclear what
notification DENR is referring to. We are
aware of one email from the State
regarding this topic; 5 however, that
email summarizes other provisions in
the State rules.
Comment: DENR provided an analysis
of the public comments received on the
State’s proposed rule, and disagreed
with ‘‘EPA’s implication that all public
commenters were concerned about
allowing construction prior to receiving
a construction permit.’’
Response: We disagree with the
assertions in this comment. The
comment does not cite to specific
language in the proposed notice;
however, we assume the commenter is
referring to Footnote 5 in our proposed
rulemaking where we stated: ‘‘[t]he
State also received public comments
from 13 individuals on this issue and
related concerns.’’ 79 FR 21428. EPA
did not intend to interpret the meaning
or intent of the public comments on the
State’s proposed rule, but simply
included this footnote to point out that
the State received adverse comments
during its rulemaking process that
expressed concerns regarding the State’s
proposed rules.
Comment: DENR suggests that EPA is
being arbitrary and capricious in
enforcing the language in 40 CFR 51.161
for public participation in minor NSR
permitting programs. DENR indicates
that there are ‘‘EPA approved state
implementation plans that have been in
place for many years which do not
require a 30-day public notice for any
non-PSD construction permits,’’ and
provides as an example ‘‘Iowa’s state
implementation plan which is South
Dakota’s neighbor and competitor for
economic development projects.’’ The
comment states that ‘‘EPA cannot give
one state an advantage over another in
economic development by requiring
inconsistent mandates to SIPs.’’ DENR’s
4 Email from Laurel Dygowski, South Dakota SIP
Program Manager, EPA Region 8 Air Program, to
Brian Gustafson, South Dakota (January 11, 2011).
5 Email from Kyrk Rombough, Natural Resource
Engineering Director DENR Air Quality Program, to
Kevin Leone, Environmental Scientist, EPA Region
8 Air Program (January 18, 2011).
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comment suggests that even if EPA’s
argument had validity, DENR is
required by its regulations to notice the
construction permit ‘‘before the
applicant can operate any equipment
which emits air pollutants into the air.’’
Response: EPA disagrees with this
comment. We apply applicable CAA
provisions and EPA regulations to
determine the approvability of the SIP.
As we explained in our proposed notice,
EPA regulations ‘‘require a minimum
30-day period for public comment on
the information submitted by the owner
or operator prior to construction.’’ 79 FR
21428. These regulations explicitly
mandate that state SIP minor permitting
regulations ‘‘include the opportunity for
public comment on information
submitted by owners and operators.’’ 40
CFR 51.160, 51.161(a). The regulations
further require that the information
available to the public ‘‘must include
the agency’s analysis of the effect of
construction or modification on ambient
air quality, including the agency’s
proposed approval or disapproval.’’
EPA’s regulations specify that state SIP
permitting procedures ‘‘shall include, as
a minimum . . . a 30-day period for
submittal of public comment.’’ These
public participation requirements apply
to ‘‘construction or modification’’ 6 of a
‘‘facility, building, structure or
installation.’’ 7 Finally, the regulations
require that public notice be sent to the
EPA Regional Office and to all other
state and local air pollution control
agencies having jurisdiction in the
region in which the new or modified
source ‘‘will be located.’’ 40 CFR
51.161(d).
The State rule allows owners and
operators to ‘‘initiate construction prior
to issuance of the construction permit,’’
ARSD 74:36:20:02.01, and public notice
is provided after construction. DENR’s
comment notes that notice of the
construction permit is provided ‘‘before
the applicant can operate any
equipment.’’ Providing an opportunity
for public comment before the applicant
can operate the equipment does not
meet the requirements in 40 CFR
51.161, as the State rules fail to provide
the opportunity for comment prior to
construction and therefore are
inconsistent with EPA regulations. They
also fail to provide either the public or
EPA and local permitting authorities
either notice or an opportunity to
comment on where the facility ‘‘will be
located.’’ Moreover, DENR’s comment
lacks any analysis of how the State rule,
which provides for public participation
6 40
CFR 51.160(a).
7 Id.
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36421
after construction, is consistent with the
regulatory requirements.
The comment suggests, but provides
no evidence that, EPA’s disapproval of
this rule would give another state an
advantage over South Dakota’s
economic development. Neither the
CAA nor EPA’s implementing
regulations contain any specific
requirement that we take economic
development into account in
determining the approvability of SIP
amendments. While we are not required
to consider economic development
impacts, the State’s comments provide
no details regarding economic
development impacts for us to consider.
Additionally, DENR’s SIP rules have
contained the 30-day public comment
period minor source permits for many
years.8 While the DENR’s comments
indicate that it has been implementing
new rule ARSD 74:36:20:01.01 for
approximately three years,9 it provides
no information regarding impacts to
economic development in the State
prior to implementation of the new
program.
Finally, the comments suggest there
are other state SIPs where EPA has
approved less than the 30-day public
comment period, and mentions Iowa,
without, however, providing either
citations to any relevant Iowa
regulations or references to prior EPA
interpretations. Therefore, we do not
know what the comment refers to. To
the extent EPA may have approved
provisions in other SIPs that allow for
less than the 30-day public comment
period, as we explained in the proposed
notice and this final action, our current
interpretation of 40 CFR 51.161 is that
it requires that state SIPs include a
minimum of a 30-day period for
submittal of public comments on
proposed minor source permits.
Comment: DENR asserted that the
CAA (Section 110(a)(2)(C)) and the
federal regulations (40 CFR 51.160(a)
and (b)) ‘‘do not state a construction
permit must be issued prior to
construction activities beginning.’’ For
support of this assertion, DENR
references EPA’s preliminary comments
8 For example, EPA approved 74:36:04:12 (Public
Participation in Permitting Process) on April 7,
2003. [68 FR 16726.]
9 Normally, a state should generally not be
implementing a SIP revision prior to EPA approval,
when the revision is a relaxation of the existing SIP.
General Motors Corp. v. United States, 496 U.S.
530, at 540 (‘‘There can be little or no doubt that
the existing SIP remains the ‘applicable
implementation plan’ even after the State has
submitted a proposed revision’’). EPA reviews SIP
revisions for compliance with the Act and
regulations.
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on the proposed rules,10 as well as
EPA’s mention in the proposed notice of
prior approval of such programs.11
Response: We disagree with this
comment. The CAA contains provisions
for the preconstruction review and
approval of new and modified sources
of air pollution, which are generally
implemented by a state through a
permitting program as part of an
approved SIP, or in some cases by EPA.
For minor sources, which are those
sources that have the potential to emit
below major source thresholds of the
PSD and nonattainment NSR program,
the CAA has specific requirements.
Under CAA section 110(a)(2)(C), the
state’s SIP must provide for ‘‘the
regulation of the modification and
construction of any stationary source
. . . as necessary to ensure that national
ambient air quality standards are
achieved.’’ 12 Therefore, all SIPs must
contain minor source preconstruction
approval programs. The CAA contains
separate and distinct requirements for
operating permits, which we are not
reviewing in this action.
EPA’s implementing regulations
specify the requirements for minor NSR
programs, and the relevant provisions
are discussed here. 40 CFR 51.160–
51.164. Each state SIP must set forth
legally enforceable procedures which
will allow the state to determine
whether the construction or
modification of a minor source, or a
‘‘minor modification’’ of an existing
source, ‘‘will’’ (1) result in a violation of
10 The comments reference the following from
EPA’s preliminary comments, ‘‘[i]t should be noted
that EPA’s regulations at 40 CFR 51.160 do not
require the issuance of a permit for the construction
of modification of minor sources, but only that the
SIP include a procedure to prevent the construction
of a source or modification that would violate the
SIP control strategy or interfere with attainment or
maintenance of the NAAQS.’’ Email from Laurel
Dygowski, South Dakota SIP Program Manager, EPA
Region 8 Air Program, to Brian Gustafson, South
Dakota (January 11, 2011). EPA’s regulations do not
explicitly require that a state’s minor source
program provide approval of construction through
the specific mechanism of a permit, so long as there
is some preconstruction approval process that
meets the requirements of 40 CFR 51.160–161.
11 The comments do not refer to a particular
quotation from the proposed rule; however, we
assume the commenter is referring to the following:
‘‘[w]e acknowledge that EPA may have approved
some state minor source programs with approaches/
requirements similar to those proposed by South
Dakota, which may warrant EPA evaluation in the
future.’’ 79 FR 21428. Our current interpretation of
the CAA and regulatory requirements are as
explained in this action.
12 The Act defines ‘‘construction’’ when used on
connection with any source or facility, to include
‘‘modification,’’ which ‘‘means any physical change
in, or change in the method of operation of, a
stationary source which increases the amount of
any air pollutant emitted by such source or which
results in the emission of any air pollutant not
previously emitted. CAA sections 111(a)(4),
169(2)(C).
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applicable portions of the State’s control
strategy, or (2) interfere with attainment
of maintenance of any NAAQS in the
State or in a neighboring state. 40 CFR
51.160(a). The SIP must also include the
means by which a state can ‘‘prevent’’
construction that ‘‘will interfere with
the attainment or maintenance of a
national standard.’’ 40 CFR 51.160(b).
Therefore, SIPs must require that
owners or operators of source that are
subject to minor NSR submit
information to the state so the state can
determine if the construction or
modification of the source will result in
a violation of the control strategy or
interfere with attainment of
maintenance of the NAAQS. 40 CFR
51.160(b). SIPs must also contain,
among other elements, a ‘‘control
strategy,’’ which is a combination of
measures (including emission
limitations and measures that apply to
stationary sources) designed to achieve
the reduction of emission necessary for
attainment and maintenance of the
NAAQS. 40 CFR 51.100(n). Therefore,
there are minimum statutory and
regulatory requirements that apply to
minor source permit programs,
adherence to which is determined under
the CAA by EPA. CAA section 110.
Under the current, federally-approved
South Dakota SIP, minor sources are
subject to the State’s permitting
requirements and must receive
authorization to proceed with the
construction or modification in
accordance with the SIP, [ARSD
74:36:04:02], unless they meet
exemption requirements in ARSD
74:36:04:03.
Under the State’s proposed program
that allows for initiating construction
prior to issuance, the owner or operator
may begin construction or modification
if they meet two basic requirements: (1)
Submit a permit application to the
department; and (2) notify the
department that they intend to initiate
construction. ARSD 74:36:20:01.01(1),
(2). Once these two requirements are
met, the owner or operator may begin
and complete construction or
modification of true minor sources.
ARSD 74:36:20:01.01(3), (4). The
proposed rules do not require State
review of the proposed construction or
modification before the construction of
modification occurs. The State rules
also do not provide for the State to
affirmatively approve the proposed
modification or construction before it
commences or before completion of the
construction or modification. While
there are provisions in the rule that
cover activities after construction and
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modification,13 there is no State
administrative approval or review of
any kind prior to construction activities.
The State receives notice from the
owner or operator before construction
starts; however, there are no provisions
in the rule that specify any action the
State is to take regarding that notice or
any mechanism to ensure
preconstruction review and approval.
Therefore, neither the State, public, nor
EPA can determine whether the project
will be in compliance with the CAA and
implementing regulations before
construction is initiated and completed.
The State rules allow construction to
proceed, and provide for review of the
construction while it is underway (or
after the construction is complete). As
discussed above, we interpret the CAA
and implementing regulations to require
regulation and approval of construction
of any stationary source before the
construction occurs, not as proposed by
the State, review and approval
construction in process or after it has
occurred. While we have not interpreted
the CAA and regulations to require that
states implement the SIP requirement
for a minor source program through the
mechanism of a permitting program, we
have required that SIPs include some
mechanism for preconstruction review
and approval of proposed minor sources
before the activities commence. Such
review and approval is necessary to
determine whether the proposed
construction or modification will violate
a control strategy or interfere with
attainment or maintenance of the
NAAQS and to ‘‘prevent such
construction or modification’’ that will
do so as required by 51.160(a) and (b).14
The proposed rules provide for State
approval before the owner or operator
begins operating the source and emitting
pollutants but provide no mechanism to
evaluate or prevent proposed
13 The proposed SIP rule provides that: The
owner or operator assume liability for construction
(ARSD 74:36:20:02.01(5)); the owner or operator
may not operate the equipment and emit air
pollutants prior to receiving a construction permit
(ARSD 74:36:20:02.01(5)); if the department
demonstrates that the construction or modification
will interfere with the attainment or maintenance
of the NAAQS or increment, the owner or operator
must cease construction (ARSD 74:36:20:02.01(6));
and (4) the owner or operator will be required to
make any changes to the new source or
modification of an existing source that may be
imposed in the construction permit (ARSD
74:36:20:02.01(7)).
14 We would note, however, to a substantial
degree, it is the permit process itself, embodied in
South Dakota’s current SIP regulations, that
provides the vehicle to identify and make
enforceable specific measures necessary to protect
the NAAQS. As explained in the notice, it is the
lack of such authority for the State to review and
approve the modification or construction that is
fatal to the proposed revisions.
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construction. Therefore, the proposed
changes to the SIP are incomplete as
they lack the ‘‘legally enforceable
procedures that enable’’ the State to
make the necessary determination and
ensure that the State ‘‘will prevent such
construction’’ if the source ‘‘will’’
violate the control strategy or interfere
with NAAQS attainment. Finally, the
commenter appears to imply that our
preliminary comments to the State are
controlling or binding on our final
action. As explained above, while we
aim, and often do, provide comments
early and throughout a state’s
rulemaking process, those comments are
not final agency actions. There is
nothing in the Act that requires such
comments, much less that makes them
binding on EPA such as to require that
EPA approve a SIP that does not meet
regulatory requirements. To the
contrary, Congress entrusted with EPA
an oversight role to ensure the
requirements of the Act are met.
Moreover, nothing in EPA’s preliminary
comments suggested that the State’s
draft rules would be approvable if the
State were to make the suggested
changes.
Comment: DENR also takes exception
to EPA’s implication that DENR’s
decision to approve or deny a permit
would be influenced by a facility that
has been built (the ‘‘equity in the
ground’’ issue) and could potentially
cause a violation of a NAAQS. The
comments also note EPA’s concerns
expressed in the proposal regarding
fundamental design issues that cannot
be overcome should the State seek
modifications to protect the NAAQS.
DENR explains that: (1) The State rules
require the owner or operator to assume
these risks and make required changes
before operation; (2) the State ‘‘has
taken enforcement action when
necessary on facilities that have violated
their permits and/or that began
construction and operation prior to
obtaining the appropriate permits;’’ (3)
since the State established its initial SIP
in the 1970’s ‘‘the construction and
operation of a true minor source has not
caused or interfered with attaining or
maintaining a National Ambient Air
Quality Standard;’’ and (4) if DENR
believes a NAAQS would be violated,
‘‘DENR would prevent a source from
operating until appropriate changes
were made to protect’’ the NAAQS.
Response: EPA agrees in part with
this comment. First, we acknowledge
that there are some safeguards in the
proposed rule; however, we remain
concerned that there is no mechanism
for either the public or local regulatory
authorities with jurisdiction to comment
on where ‘‘the source will be located.’’
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And leaving aside the lack of regulatory
and public input into siting decisions,
after a source has been constructed there
may remain fundamental design issues
that cannot be overcome by the
provisions in the proposed rules.
Second, the comment indicates that the
State has taken enforcement action
where necessary; however, it provides
no details regarding such actions. Third,
the comment suggests that true minor
sources have not caused or interfered
with attaining or maintaining the
NAAQS, but provides no evidence to
support this statement and does not
address the legal requirement for legally
enforceable procedures to ‘‘prevent’’
construction of a source that ‘‘will’’
have such effects. Finally, the comments
indicate that if DENR believes
enforcement were necessary, it would
prevent the source from ‘‘operating.’’
The comment does not include a
reference to what authority the DENR
would use for such enforcement.
Moreover, the comment asserts that the
State has authority to prevent source
operation but does not attempt to assert
that the program authorizes the state to
‘‘prevent such construction’’ as may
violate the control strategy or interfere
with attainment. EPA acknowledges that
74:36:20:02.01 (Initiating construction
prior to permit issuance) has some
safeguards in place; however, the rules
fall short of meeting the requirements of
the CAA and implementing regulations.
Comment: DENR indicates it
‘‘believes it has provided enough
provisions in allowing construction
prior to DENR completing its analysis
(i.e., statement of basis) of the project
and issuing a construction permit after
a 30-day public comment period to
protect’’ both the State’s control strategy
and the NAAQS. DENR explains this is
demonstrated by approximately three
years of program implementation. DENR
also explains that the State is in full
attainment with all the NAAQS.
Response: EPA disagrees with this
comment because the final rule, as
adopted by the State, allows no review
or comment on siting decisions and
does not require any type of
administrative approval from the State
prior to allowing unpermitted
‘‘construction’’ activities. Therefore,
neither the State, public, nor EPA can
evaluate siting decisions or determine
whether the project ‘‘will’’ be in
compliance with the CAA and
implementing regulations before
construction occurs. Regardless of South
Dakota’s current attainment status of the
NAAQS, 74:36:20:02.01 does not meet
the minimum requirements as outlined
in the beginning of Section II of this
rulemaking.
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36423
The fact that South Dakota has
implemented the proposed changes to
the SIP before EPA’s final action, is not,
as the comment appears to suggest, a
basis for EPA approval. Under CAA
section 116, a state may not implement
any emission limitation or any control
or abatement requirement that is less
stringent than the applicable, approved
SIP. The current SIP requires that
sources obtain a permit from the State
prior to construction. The proposed SIP
revisions are less stringent than the
existing SIP because they allow sources
to construct without obtaining a permit
prior to construction. Therefore,
proposed SIP revisions violate CAA
section 116 by exempting sources from
the existing SIP requirement to obtain a
permit before beginning construction.
Furthermore, as we explained in our
proposal, Section 110(i) of the CAA
specifically precludes states from
changing requirements of the SIP except
through SIP revisions approved by EPA.
SIP revisions will be approved by EPA
only if they meet all requirements of the
Act and the implementing regulations.
The CAA gives EPA both the authority
and the obligation to review a proposed
program’s compliance with the Act and
applicable regulations and to
disapprove regulations that do not meet
legal requirements. Therefore, a state’s
implementation of proposed SIP
amendments prior to EPA approval,
does not limit EPA’s authority to take
final rulemaking action to disapprove
SIP provisions that the state has been
implementing without SIP approval.
Finally, the commenter suggests the
permit rules preventing sources from
operating protect the State’s control
strategy and the NAAQS, and points to
the State’s attainment status for all the
NAAQS. However, the commenter
provides nothing further in its
comments in the way of rationale and
data to show that allowing unpermitted
construction will ensure the State’s
continuing and future attainment status.
CAA section 110(l) requires a
demonstration that a SIP revision does
not interfere with any requirement
concerning attainment and maintenance
of the NAAQs and that any relaxation is
sufficiently protective of air quality and
other CAA requirements in order for
EPA to approve. The fact that the SIP
submittal and the comments lack a
demonstration (e.g., air quality
monitoring data and trends, projected
minor source participation and impacts,
and emission inventory data and trends)
to show that the minor source
permitting rule revisions are not likely
to interfere with NAAQS or the State’s
SIP control strategy provides further
evidence that the SIP is not approvable.
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Without a demonstration from the State
that shows the minor sources that are
subject to this program will not impact
attainment and maintenance, we have
no information to determine the
significance of the proposed rule and
whether the sources will impact the
NAAQS. Minor sources, either
individually or collectively, may impact
attainment. Finally, even if we assume
the substitution of the new program for
the prior minor source permit program
were allowed under section 110(l), the
State has provided no demonstration to
show the new rules achieve the same
results as the existing rules for these
sources. Therefore, we lack information
and a basis to approve these
amendments to the SIP under section
110(1).
III. Basis for Our Final Action
We have fully considered the
comments we received, and have
concluded that no changes from our
proposed rule are warranted. As
discussed in our proposal and this rule,
our action is based on an evaluation of
South Dakota’s rules against the
requirements of CAA sections
110(a)(2)(C), 110(i), 110(l), 116, our
minor source NSR regulations at 40 CFR
51.160–51.164, and other requirements
discussed in section II of this action.
Section 110(a)(2)(C) of the Act
contains the requirements for
preconstruction review programs for
minor sources and requires that each
SIP include a program to regulate the
construction and modification of
stationary sources as necessary to assure
that the NAAQS are achieved.
EPA’s minor source implementing
regulations are in 40 CFR 51.160–
51.164. The regulations require that a
SIP include ‘‘legally enforceable
procedures that enable’’ the permitting
agency to determine whether
construction ‘‘will result in’’
interference with the NAAQS, 40 CFR
51.160(a). The SIP must also include the
means by which a state or local agency
can ‘‘prevent’’ construction that ‘‘will
interfere with the attainment or
maintenance of a national standard.’’ 40
CFR 51.160(b). 40 CFR 51.161(a)
requires that the legally enforceable
procedures in 40 CFR 51.160 must also
require the state or local agency to
provide opportunity for public comment
on information submitted by owners or
operators. The public information must
include the agency’s analysis of the
effect of construction or modification on
ambient air quality, including the
agency’s proposed approval or
disapproval. 40 CFR 51.161(b) requires
a minimum 30-day public comment
period. Finally, the regulations require
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that public notice be sent to the EPA
Regional Office and to all other state
and local air pollution control agencies
having jurisdiction in the region in
which the new or modified source ‘‘will
be located.’’ 40 CFR 51.161(d).
We are approving those rules that
meet the relevant requirements and
disapproving those rules that do not
meet the relevant requirements, or are
not appropriate for inclusion in the SIP.
Specifically, we are disapproving
74:36:04:20:01 (Initiating Construction
Prior to Permit Issuance), and the
related phrase: ‘‘unless it meets the
requirements in 74:36:20:02.01’’ in
74:36:04:20:02 (Construction Permit
Required). We are disapproving the
related phrase because it references the
rule we are disapproving.
For a detailed description of the bases
for our actions on the individual rules,
please refer to our notice of proposed
rulemaking (79 FR 21424) and our
response to comments in section II of
this action.
We are sensitive to the concerns
expressed in the State’s comments. We
also understand the State’s goals in
promulgating rule 74:36:20:02.01, as
expressed during the State’s rulemaking,
were to ‘‘expedite the construction of
specific facilities that will have minimal
impact to the ambient air and for those
projects that may be impacted by
inclement weather (i.e. winter
months),’’ 15 ‘‘and to ensure that new
businesses and existing businesses
looking to expand are permitted in an
expedited manner.’’ 16 79 FR 21428. If
requested by South Dakota, EPA will
work with the State to develop revised
rules that are consistent with the State
goals and consistent with the CAA and
implementing regulations.17
IV. Final Action
In this rulemaking, we are taking final
action to: (1) Approve revisions to
74:36:01:01 (Definitions); 74:36:02
(Ambient Air Quality); 74:36:03 (Air
Quality Episodes); 74:36:04 (Operating
Permits for Minor Sources); 74:36:10
(New Source Review); 74:36:11
(Performance Testing); 74:36:12 (Control
15 State of South Dakota SIP Submittal, at PDF
pages 170–171 (June 14, 2011, part 1 of 2).
16 State of South Dakota SIP Submittal, at PDF
page 105 (June 14, 2011, part 2 of 2) (Board of
Minerals and Environment Minutes, February 17,
2011).
17 One option for South Dakota is to amend its
‘‘initiating construction prior to permit issuance’’
section to allow only certain limited, seasonal, prepermit construction activities and specify which
activities are allowed, and exclude construction of
any emitting unit. An example of this type of prepermit construction language can be found in the
Administrative Rules of Montana (ARM)
17.8.743(2), which EPA approved on August 8,
2011 (76 FR 40237).
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of Visible Emissions); 74:36:13
(Continuous Emissions Monitoring
Systems); 74:36:18 (Regulations for
State Facilities in the Rapid City Area);
and 74:36:20 (Construction Permits for
New Sources or Modifications); (2)
Disapprove 74:36:20:02.01 (Initiating
Construction Prior to Permit Issuance),
and the phrase ‘‘, unless it meets the
requirements in 74:36:20:02.01’’ in
74:36:20:02 (Construction Permit
Required); (3) Not take action on
74:36:05 (Operating Permits for Part 70
Sources); 74:36:07 (New Source
Performance Standards); 74:36:08
(National Emission Standards for
Hazardous Air Pollutants); 74:36:09
(Prevention of Significant
Deterioration); 74:36:16 (Acid Rain
Program); and 74:36:19 (Mercury Budget
Trading Program).
V. Statutory and Executive Orders
Review
Under the Clean Air Act, 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 Clean Air Act.
Accordingly, this final action merely
approves certain state law as meeting
Federal requirements, disapproves other
state law as not meeting Federal
requirements, and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive 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,
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);
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• 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 Clean Air Act;
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).
State citation
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 August 26, 2014.
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 CAA
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 29, 2014.
Shaun L. McGrath,
Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for Part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart QQ—South Dakota
2. Section 52.2170 is amended in the
table titled ‘‘State of South Dakota
Regulations’’ in paragraph (c)(1):
■ a. By revising the table entries for
‘‘74:36:01:01’’ and ‘‘74:36:01:05’’;
■
State
effective
date
Title/subject
b. By adding the table entry for
‘‘74:36:01:10’’ in numerical order;
■ c. By revising the table entry for
‘‘74:36:01:20’’;
■ d. By adding the table entry for
‘‘74:36:01:21’’ in numerical order;
■ e. By revising the table entries for
‘‘74:36:02:02’’ through ‘‘74:36:02:05’’,
‘‘74:36:03:01’’, and ‘‘74:36:03:02’’;
■ f. By adding the table entries for
‘‘74:36:04:02’’, ‘‘74:36:04:02.01’’, and
‘‘74:36:04:03’’ in numerical order;
■ g. By revising the table entry for
‘‘74:36:04:04’’;
■ h. By adding the table entries for
‘‘74:36:04:06’’, ‘‘74:36:04:07’’,
‘‘74:36:04:09’’, ‘‘74:36:04:10’’,
‘‘74:36:04:12’’, ‘‘74:36:04:12.01’’,
‘‘74:36:04:13’’, ‘‘74:36:04:15’’ through
‘‘74:36:04:18’’, ‘‘74:36:04:20’’,
‘‘74:36:04:20.01’’, ‘‘74:36:04:20.04’’,
‘‘74:36:04:23’’, ‘‘74:36:04:27’’, and
‘‘74:36:04:32’’ in numerical order;
■ i. By revising the table entries for
‘‘74:36:10:02’’, ‘‘74:36:10:03.01’’,
‘‘74:36:10:05’’, ‘‘74:36:10:07’’, and
‘‘74:36:10:08’’;
■ j. By removing the table entries for
‘‘74:36:10:09’’ and ‘‘74:36:10:10’’ and
the second entry for ‘‘74:36:13:07’’ ;
■ k. By revising the table entries for
‘‘74:36:11:01’’, ‘‘74:36:12:01’’,
‘‘74:36:12:03’’, ‘‘74:36:13:02’’,
‘‘74:36:13:03’’, ‘‘74:36:13:04’’,
‘‘74:36:13:06’’, the first entry for
‘‘74:36:13:07’’, and the entries for
‘‘74:36:13:08’’, and ‘‘74:36:18:10’’; and
■ l. By adding a new centered heading
for ‘‘74:36:20 [Construction Permits For
New Sources Or Modifications]’’ and
the table entries ‘‘74:36:20:01 through
74:36:20:24’’, in numerical order.
The amendments read as follows:
■
§ 52.2170
*
Identification of plan.
*
*
(c) * * *
*
EPA approval date
and citation 1
*
Explanations
74:36:01 Definitions
Definitions ...............................
4/20/2011
74:36:01:05 ..............................
Applicable requirements of the
Clean Air Act defined.
6/28/2010
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
*
*
74:36:01:10 ..............................
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74:36:01:01 ..............................
*
Modification defined ................
*
6/28/2010
*
6/27/2014, [Insert Federal
Register citation].
*
*
*
*
74:36:01:20 ..............................
*
Physical change in or change
in the method of operation
defined.
Commence construction defined.
*
6/28/2010
*
6/27/2014, [Insert Federal
Register citation].
*
*
6/28/2010
6/27/2014, [Insert Federal
Register citation].
74:36:01:21 ..............................
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State citation
State
effective
date
Title/subject
EPA approval date
and citation 1
74:36:02 Ambient Air Quality
74:36:02:02 ..............................
Ambient air quality standards
6/28/2010
74:36:02:03 ..............................
Methods of sampling and
analysis.
Air quality monitoring network
6/28/2010
Ambient air monitoring requirements.
6/28/2010
74:36:02:04 ..............................
74:36:02:05 ..............................
6/28/2010
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
74:36:03 Air Quality Episodes
74:36:03:01 ..............................
74:36:03:02 ..............................
Air pollution emergency episode.
Episode emergency contingency plan.
6/28/2010
6/28/2010
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
74:36:04 Operating Permits for Minor Sources
74:36:04:02 ..............................
Minor source operating permit
required.
Minor source operating permit
exemption.
Emission unit exemptions .......
6/28/2010
6/28/2010
74:36:04:15 ..............................
Standard for issuance of a
minor source operating permit.
Timely and complete application for operating permit required.
Required contents of complete
application for operating
permit.
Permit application—Completeness review.
Time period for department’s
recommendation.
Public participation in permitting process.
Public review of department’s
draft permit.
Final permit decision—Notice
to interested persons.
Contents of operating permit ..
74:36:04:16 ..............................
Operating permit expiration ....
6/28/2010
74:36:04:17 ..............................
Renewal of operating permit ..
6/28/2010
74:36:04:18 ..............................
Operating permit revision .......
6/28/2010
74:36:04:20 ..............................
Procedures for administrative
permit amendments.
Minor permit amendment required.
Department deadline to approve minor permit amendment.
Reopening operating permit
for cause.
Operating permit termination,
revision, and revocation.
General permits ......................
6/28/2010
74:36:04:02.01 .........................
74:36:04:03 ..............................
74:36:04:04 ..............................
74:36:04:06 ..............................
74:36:04:07 ..............................
74:36:04:09 ..............................
74:36:04:10 ..............................
74:36:04:12 ..............................
74:36:04:12.01 .........................
74:36:04:13 ..............................
74:36:04:20.01 .........................
74:36:04:20.04 .........................
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and citation 1
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74:36:10 New Source Review
74:36:10:02 ..............................
Definitions ...............................
6/25/2013
74:36:10:03.01 .........................
New source review
preconstruction permit required.
New source review
preconstruction permit.
Determining credit for emission offsets.
Projected actual emissions .....
6/25/2013
74:36:10:05 ..............................
74:36:10:07 ..............................
74:36:10:08 ..............................
6/25/2013
6/25/2013
6/25/2013
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
74:36:11 Performance Testing
74:36:11:01 ..............................
Stack performance testing or
other testing methods.
6/28/2010
6/27/2014, [Insert Federal
Register citation].
74:36:12 Control of Visible Emissions
74:36:12:01 ..............................
74:36:12:03 ..............................
Restrictions on visible emissions.
Exceptions granted to alfalfa
pelletizers or dehydrators.
6/28/2010
6/28/2010
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
74:36:13 Continuous Emissions Monitoring Systems
74:36:13:02 ..............................
Minimum performance specifications for all continuous
emission monitoring systems.
Reporting requirements ..........
6/28/2010
6/27/2014, [Insert Federal
Register citation].
6/28/2010
6/28/2010
74:36:13:06 ..............................
Notice to department of exceedance.
Compliance certification .........
74:36:13:07 ..............................
Credible evidence ...................
6/28/2010
74:36:13:08 ..............................
Compliance assurance monitoring.
6/28/2010
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
74:36:13:03 ..............................
74:36:13:04 ..............................
*
*
6/28/2010
*
*
*
74:36:18 Regulations for State Facilities In the Rapid City Area
*
*
74:36:18:10 ..............................
*
*
Visible emission limit for construction and continuous operation activities.
*
*
6/28/2010
*
*
6/27/2014, [Insert Federal
Register citation].
*
*
74:36:20 Construction Permits For New Sources Or Modifications
Applicability .............................
6/28/2010
74:36:20:02 ..............................
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74:36:20:01 ..............................
Construction permit required ..
4/20/2011
74:36:20:03 ..............................
Construction permit exemption
6/28/2010
74:36:20:04 ..............................
Emission unit exemptions .......
6/28/2010
74:36:20:05 ..............................
Standard for issuance of construction permit.
Timely and complete application for a construction permit required.
6/28/2010
74:36:20:06 ..............................
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Except for ‘‘, unless it meets
the requirements in section
74:36:20:02.01’’.
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74:36:20:07 ..............................
Required contents of complete
application for a construction permit.
Applicant required to supplement or correct application.
Permit application—Completeness review.
Time period for department’s
recommendation.
Public participation in permitting process.
Public review of department’s
draft permit.
Final permit decision—Notice
to interested persons.
Right to petition for contested
case hearing.
Contents of construction permit.
Administrative permit amendment.
Procedures for administrative
permit amendments.
Reopening construction permit
for cause.
Procedures to reopen construction permit.
Construction permit does not
exempt from other requirements.
Expiration of a construction
permit.
Notice of constructing or operating noncompliance—Contents.
Petition for contested case on
alleged violation.
Circumvention of emissions
not allowed.
74:36:20:08 ..............................
74:36:20:09 ..............................
74:36:20:10 ..............................
74:36:20:11 ..............................
74:36:20:12 ..............................
74:36:20:13 ..............................
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74:36:20:19 ..............................
74:36:20:20 ..............................
74:36:20:21 ..............................
74:36:20:22 ..............................
74:36:20:23 ..............................
74:36:20:24 ..............................
*
*
EPA approval date
and citation 1
6/28/2010
6/27/2014, [Insert Federal
Register citation].
6/28/2010
Explanations
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/28/2010
6/28/2010
6/28/2010
6/28/2010
6/28/2010
6/28/2010
6/28/2010
6/28/2010
6/28/2010
6/28/2010
6/28/2010
6/28/2010
6/28/2010
6/28/2010
6/28/2010
6/28/2010
*
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
6/27/2014, [Insert Federal
Register citation].
*
*
*
*
1 In
order to determine the EPA effective date for a specific provision that is listed in this table, consult the Federal Register cited in this column for that particular provision.
*
*
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*
*
[FR Doc. 2014–14031 Filed 6–26–14; 8:45 am]
ENVIRONMENTAL PROTECTION
AGENCY
BILLING CODE 6560–50–P
40 CFR Part 141
[EPA–HQ–OW–2014–0408; FRL–9912–52–
OW]
Expedited Approval of Alternative Test
Procedures for the Analysis of
Contaminants Under the Safe Drinking
Water Act; Analysis and Sampling
Procedures
35096 in the issue of Thursday, June 19,
2014, make the following correction:
On page 35093, the table titled
‘‘ALTERNATIVE TESTING METHODS
FOR CONTAMINANTS LISTED AT 40
CFR 141.852(a)(5)’’ should read as
follows:
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Correction
In rule document 2014–14369,
appearing on pages 35081 through
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]]>Agencies
[Federal Register Volume 79, Number 124 (Friday, June 27, 2014)]
[Rules and Regulations]
[Pages 36419-36428]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14031]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2014-0241; FRL-9912-24-Region 8]
Partial Approval and Partial Disapproval and Promulgation of Air
Quality Implementation Plans; South Dakota; Revisions to South Dakota
Administrative Code; Permit: New and Modified Sources
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to partially approve and partially disapprove State
Implementation Plan (SIP) revisions submitted by the State of South
Dakota on June 14, 2010, June 20, 2011, and July 29, 2013. All three
SIP submittals revise the portion of the Administrative Rules of South
Dakota (ARSD) that pertain to the issuance of South Dakota air quality
permits. In addition, the June 14, 2010 submittal revises certain
definitions and dates of incorporation by reference. The June 14, 2010
submittal contains new, amended and renumbered rules; the June 20, 2011
submittal contains new rules; and the July 29, 2013 submittal contains
amended rules. In this rulemaking, we are taking final action on all
portions of the June 14, 2010 submittal, except for those portions of
the submittal which do not belong in the SIP. We are also taking final
action on portions of the June 20, 2011 submittal that were not acted
on in our April 18, 2014 rulemaking regarding greenhouse gases and the
State's Prevention of Significant Deterioration (PSD) program. We are
taking final action on portions of the July 29, 2013 submittal that
supersede portions of the two previous submittals; the remainder of the
July 29, 2013 submittal will be acted on at a later date. This action
is being taken under section 110 of the Clean Air Act (CAA).
DATES: This final rule is effective July 28, 2014.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2014-0241. All documents in the docket are listed in
the www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in 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 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, 8:00 a.m. to 4:00 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, Mailcode 8P-
AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129, (303) 312-6227, or leone.kevin@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Response to Comments
III. Basis for our Final Action
IV. Final Action
V. Statutory and Executive Orders Review
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 initials ARSD mean or refer to the Administrative Rules of
South Dakota.
(iii) The initials DENR mean the Department of Environment and
Natural Resources.
(iv) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(v) The words minor NSR mean NSR established under section
110(a)(2)(C) of the Act and 40 CFR 51.160 through 51.164.
(vi) The initials NAAQS mean or refer to National Ambient Air
Quality Standards.
(vii) The initials NSR mean new source review, a phrase intended to
encompass the stationary source regulatory programs that regulate the
construction and modification of stationary sources as provided under
CAA section 110(a)(2)(C), CAA Title I, parts C and D, and 40 CFR 51.160
through 51.166.
(viii) The initials PSD mean or refer to Prevention of Significant
Deterioration.
(ix) The initials SIP mean or refer to State Implementation Plan.
(x) The words State or South Dakota mean the State of South Dakota,
unless the context indicates otherwise.
[[Page 36420]]
I. Background
The CAA (section 110(a)(2)(C)), 40 CFR 51.160, and the other
statutory and regulatory provisions discussed in this final notice,
require states to have legally enforceable procedures in their SIPs to
prevent construction or modification of a source if it would violate
any SIP control strategies or interfere with attainment or maintenance
of the national ambient air quality standards (NAAQS). Such minor new
source review (NSR) programs are for pollutants from stationary sources
that do not require PSD or nonattainment NSR permits. A state may
customize the requirements of its minor NSR program as long as the
program meets the minimum statutory and regulatory requirements.
On June 14, 2010, South Dakota submitted revisions to its minor
source NSR program. The June 14, 2010 submittal included: (1) Revisions
to the definitions associated with the Air Pollution Control Program to
ensure the definitions are current and consistent with other chapters
in the regulations. These revisions include: grammatical changes,
renumbering, modified definitions, new definitions and deleted
definitions; (2) Revisions to the date of federal regulations
referenced throughout ARSD Article 74:36; (3) Addition of a
construction permit program for new minor sources and minor
modifications to existing sources, created by adding new Chapter
74:36:20 (Construction Permits for New Sources or Modifications); and
(4) Revisions to the minor source operating permit programs to
incorporate the changes associated with the new proposed construction
permit program.
In South Dakota's regulations in ARSD Article 74:36 that are
currently approved into the SIP, the minor source construction permit
and operating permit programs are combined so, in practice, a source
receives one permit from the State which serves as both a construction
and operating permit.\1\ The revisions in the June 14, 2010 submittal
separate the two programs into a new minor source construction permit
program and a minor source operating permit program. Under the new
revisions, a source would first apply for a construction permit before
applying for an operating permit. A cross-walk table, which discusses
the rule revisions in Article 74:36 individually, and the action we are
proposing, is included in the docket for this rulemaking.
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\1\ For major sources and major modifications, the State already
has two SIP-approved construction permit programs (PSD and
nonattainment NSR) and, separately for major sources, a title V
operating permit program that has been approved through the title V
(not the SIP) process.
---------------------------------------------------------------------------
South Dakota's June 14, 2010 submittal also contains rule revisions
that are not included in SIPs. These rules, which we are not taking
action on here (i.e., New Source Performance Standards, operating
permits for part 70 sources, etc.), are outlined in the cross-walk
table located in the docket for this rulemaking.
South Dakota's June 20, 2011, submittal includes the following rule
revisions: (1) Revises Sections 74:36:01:01, 74:36:01:08, 74:36:01:15
and 74:36:09:02 related to regulation of greenhouse gases (revisions to
Sections 74:36:01:08, 74:36:01:15 and 74:36:09:02 to comply with EPA's
Greenhouse Gas Tailoring Rule were previously acted on); \2\ EPA is
taking final action on 74:36:01:01 in this rulemaking); (2) Revises
Chapter 74:36:20 by revising Section 74:36:20:02 (Construction Permits
Required); and (3) Adds new Section 74:36:20:02.01 (Initiating
Construction Prior to Permit Issuance). Section 74:36:20:02.01 allows
sources who meet certain conditions to start construction prior to
receiving a permit provided they meet the requirements in that section.
EPA is taking final action on 74:36:20:02 and 74:36:20:02.01 in this
rulemaking.\3\
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\2\ On February 11, 2014 (79 FR 8130) EPA proposed action on
these provisions. EPA finalized its action on April 18, 2014 (79 FR
21852).
\3\ Under a consent decree, by May 30, 2014, EPA is required to
sign a notice of final action to approve, disapprove, approve in
part and disapprove in part, or conditionally approve this June 20,
2011 SIP submittal. WildEarth Guardians v. EPA, Civil Action No.
1:12-cv-03307 (D. Colo.).
---------------------------------------------------------------------------
With respect to South Dakota's July 29, 2013 submittal, we are only
taking final action on the following revisions: (1) The removal of
section 74:36:04:03.01 (Minor Source Operating Permit Variance); and
(2) Revisions to section 74:36:10 (New Source Review).
In our April 16, 2014 proposed action (79 FR 21424), we proposed
to: (1) Approve 74:36:01:01 (Definitions); 74:36:02 (Ambient Air
Quality); 74:36:03 (Air Quality Episodes); 74:36:04 (Operating Permits
for Minor Sources); 74:36:10 (New Source Review); 74:36:11 (Performance
Testing); 74:36:12 (Control of Visible Emissions); 74:36:13 (Continuous
Emissions Monitoring); 74:36:18 (Regulations for State Facilities in
the Rapid City Area); and 74:36:20 (Construction Permits for New
Sources or Modifications); 74:36:01:01(73) (Subject to Regulation); the
deletion of 74:36:04:03.01 (Minor Source Operating Permit Variance);
(2) Disapprove 74:36:20:02.01 (Initiating Construction Prior to Permit
Issuance); the phrase: ``unless it meets the requirements in
74:36:20:02.01'' in 74:36:04:20:02 (Construction Permit Required); (3)
Not take action on 74:36:05 (Operating Permits for Part 70 Sources);
74:36:07 (New Source Performance Standards); 74:36:08 (National
Emission Standards for Hazardous Air Pollutants); 74:36:09 (Prevention
of Significant Deterioration); 74:36:16 (Acid Rain Program); and
74:36:19 (Mercury Budget Trading Program).
We provided a detailed explanation of the bases for our proposal.
See 79 FR 21426-21429. We invited comment on all aspects of our
proposal and provided a 30-day comment period. The comment period ended
on May 16, 2014.
In this action, we are responding to the comments we received and
taking final rulemaking action on the rules from the State's June 14,
2010, June 20, 2011, and July 29, 2013 submittals.
II. Response to Comments
In response to our April 16, 2014 proposed rulemaking, we received
comments from Department of Environment and Natural Resources (DENR)
Secretary Steven M. Pirner on behalf of the State of South Dakota. In
this section, we summarize these comments and provide our responses.
Comment: The comments explain that DENR submitted a draft copy of
ARSD 74:36:20:02.01 in December 2010 to EPA for informal comments prior
to beginning the State's formal rule making process; and that EPA
provided preliminary comments back to DENR via email on January 11,
2011. DENR's comments on our proposal suggest that DENR notified EPA
that those preliminary concerns were addressed in ARSD
74:36:20:02.01(1), 74:36:20:02.01(2) and 74:36:20:02.01(6). DENR's
comments further explain that it believed EPA's concerns were addressed
at that time, since EPA did not provide the same comment during the
public notice phase of the rule making.
Response: EPA disagrees with this comment. While we aim to provide
comments before and during a state's rule making process, the CAA
neither requires that EPA comment on proposed SIP rules, nor does it
preclude EPA from carrying out its statutory duty to disapprove an
inadequate SIP if EPA does not provide comments to a state. The notion
that EPA's silence suggests a SIP is approvable--simply because EPA did
not comment during the State's formal rule making process--has no
support in the Act, it is contrary to the purposes of the Act and EPA's
express obligation to approve only SIP submittals that meet the
requirements of
[[Page 36421]]
the Act, as explained elsewhere in this final action. Moreover, nothing
in EPA's preliminary comments suggested that the State's draft rules
would be approvable if the State were to make the suggested changes.\4\
---------------------------------------------------------------------------
\4\ Email from Laurel Dygowski, South Dakota SIP Program
Manager, EPA Region 8 Air Program, to Brian Gustafson, South Dakota
(January 11, 2011).
---------------------------------------------------------------------------
DENR comments indicate that it provided notification to us that our
preliminary concerns were addressed by provisions in ARSD
74:36:20:02.01(1), 74:36:20:02.01(2) and 74:36:20:02.01(6). The comment
does not cite to a particular communication from the State. Therefore,
we are unclear what notification DENR is referring to. We are aware of
one email from the State regarding this topic; \5\ however, that email
summarizes other provisions in the State rules.
---------------------------------------------------------------------------
\5\ Email from Kyrk Rombough, Natural Resource Engineering
Director DENR Air Quality Program, to Kevin Leone, Environmental
Scientist, EPA Region 8 Air Program (January 18, 2011).
---------------------------------------------------------------------------
Comment: DENR provided an analysis of the public comments received
on the State's proposed rule, and disagreed with ``EPA's implication
that all public commenters were concerned about allowing construction
prior to receiving a construction permit.''
Response: We disagree with the assertions in this comment. The
comment does not cite to specific language in the proposed notice;
however, we assume the commenter is referring to Footnote 5 in our
proposed rulemaking where we stated: ``[t]he State also received public
comments from 13 individuals on this issue and related concerns.'' 79
FR 21428. EPA did not intend to interpret the meaning or intent of the
public comments on the State's proposed rule, but simply included this
footnote to point out that the State received adverse comments during
its rulemaking process that expressed concerns regarding the State's
proposed rules.
Comment: DENR suggests that EPA is being arbitrary and capricious
in enforcing the language in 40 CFR 51.161 for public participation in
minor NSR permitting programs. DENR indicates that there are ``EPA
approved state implementation plans that have been in place for many
years which do not require a 30-day public notice for any non-PSD
construction permits,'' and provides as an example ``Iowa's state
implementation plan which is South Dakota's neighbor and competitor for
economic development projects.'' The comment states that ``EPA cannot
give one state an advantage over another in economic development by
requiring inconsistent mandates to SIPs.'' DENR's comment suggests that
even if EPA's argument had validity, DENR is required by its
regulations to notice the construction permit ``before the applicant
can operate any equipment which emits air pollutants into the air.''
Response: EPA disagrees with this comment. We apply applicable CAA
provisions and EPA regulations to determine the approvability of the
SIP. As we explained in our proposed notice, EPA regulations ``require
a minimum 30-day period for public comment on the information submitted
by the owner or operator prior to construction.'' 79 FR 21428. These
regulations explicitly mandate that state SIP minor permitting
regulations ``include the opportunity for public comment on information
submitted by owners and operators.'' 40 CFR 51.160, 51.161(a). The
regulations further require that the information available to the
public ``must include the agency's analysis of the effect of
construction or modification on ambient air quality, including the
agency's proposed approval or disapproval.'' EPA's regulations specify
that state SIP permitting procedures ``shall include, as a minimum . .
. a 30-day period for submittal of public comment.'' These public
participation requirements apply to ``construction or modification''
\6\ of a ``facility, building, structure or installation.'' \7\
Finally, the regulations require that public notice be sent to the EPA
Regional Office and to all other state and local air pollution control
agencies having jurisdiction in the region in which the new or modified
source ``will be located.'' 40 CFR 51.161(d).
---------------------------------------------------------------------------
\6\ 40 CFR 51.160(a).
\7\ Id.
---------------------------------------------------------------------------
The State rule allows owners and operators to ``initiate
construction prior to issuance of the construction permit,'' ARSD
74:36:20:02.01, and public notice is provided after construction.
DENR's comment notes that notice of the construction permit is provided
``before the applicant can operate any equipment.'' Providing an
opportunity for public comment before the applicant can operate the
equipment does not meet the requirements in 40 CFR 51.161, as the State
rules fail to provide the opportunity for comment prior to construction
and therefore are inconsistent with EPA regulations. They also fail to
provide either the public or EPA and local permitting authorities
either notice or an opportunity to comment on where the facility ``will
be located.'' Moreover, DENR's comment lacks any analysis of how the
State rule, which provides for public participation after construction,
is consistent with the regulatory requirements.
The comment suggests, but provides no evidence that, EPA's
disapproval of this rule would give another state an advantage over
South Dakota's economic development. Neither the CAA nor EPA's
implementing regulations contain any specific requirement that we take
economic development into account in determining the approvability of
SIP amendments. While we are not required to consider economic
development impacts, the State's comments provide no details regarding
economic development impacts for us to consider. Additionally, DENR's
SIP rules have contained the 30-day public comment period minor source
permits for many years.\8\ While the DENR's comments indicate that it
has been implementing new rule ARSD 74:36:20:01.01 for approximately
three years,\9\ it provides no information regarding impacts to
economic development in the State prior to implementation of the new
program.
---------------------------------------------------------------------------
\8\ For example, EPA approved 74:36:04:12 (Public Participation
in Permitting Process) on April 7, 2003. [68 FR 16726.]
\9\ Normally, a state should generally not be implementing a SIP
revision prior to EPA approval, when the revision is a relaxation of
the existing SIP. General Motors Corp. v. United States, 496 U.S.
530, at 540 (``There can be little or no doubt that the existing SIP
remains the `applicable implementation plan' even after the State
has submitted a proposed revision''). EPA reviews SIP revisions for
compliance with the Act and regulations.
---------------------------------------------------------------------------
Finally, the comments suggest there are other state SIPs where EPA
has approved less than the 30-day public comment period, and mentions
Iowa, without, however, providing either citations to any relevant Iowa
regulations or references to prior EPA interpretations. Therefore, we
do not know what the comment refers to. To the extent EPA may have
approved provisions in other SIPs that allow for less than the 30-day
public comment period, as we explained in the proposed notice and this
final action, our current interpretation of 40 CFR 51.161 is that it
requires that state SIPs include a minimum of a 30-day period for
submittal of public comments on proposed minor source permits.
Comment: DENR asserted that the CAA (Section 110(a)(2)(C)) and the
federal regulations (40 CFR 51.160(a) and (b)) ``do not state a
construction permit must be issued prior to construction activities
beginning.'' For support of this assertion, DENR references EPA's
preliminary comments
[[Page 36422]]
on the proposed rules,\10\ as well as EPA's mention in the proposed
notice of prior approval of such programs.\11\
---------------------------------------------------------------------------
\10\ The comments reference the following from EPA's preliminary
comments, ``[i]t should be noted that EPA's regulations at 40 CFR
51.160 do not require the issuance of a permit for the construction
of modification of minor sources, but only that the SIP include a
procedure to prevent the construction of a source or modification
that would violate the SIP control strategy or interfere with
attainment or maintenance of the NAAQS.'' Email from Laurel
Dygowski, South Dakota SIP Program Manager, EPA Region 8 Air
Program, to Brian Gustafson, South Dakota (January 11, 2011). EPA's
regulations do not explicitly require that a state's minor source
program provide approval of construction through the specific
mechanism of a permit, so long as there is some preconstruction
approval process that meets the requirements of 40 CFR 51.160-161.
\11\ The comments do not refer to a particular quotation from
the proposed rule; however, we assume the commenter is referring to
the following: ``[w]e acknowledge that EPA may have approved some
state minor source programs with approaches/requirements similar to
those proposed by South Dakota, which may warrant EPA evaluation in
the future.'' 79 FR 21428. Our current interpretation of the CAA and
regulatory requirements are as explained in this action.
---------------------------------------------------------------------------
Response: We disagree with this comment. The CAA contains
provisions for the preconstruction review and approval of new and
modified sources of air pollution, which are generally implemented by a
state through a permitting program as part of an approved SIP, or in
some cases by EPA. For minor sources, which are those sources that have
the potential to emit below major source thresholds of the PSD and
nonattainment NSR program, the CAA has specific requirements. Under CAA
section 110(a)(2)(C), the state's SIP must provide for ``the regulation
of the modification and construction of any stationary source . . . as
necessary to ensure that national ambient air quality standards are
achieved.'' \12\ Therefore, all SIPs must contain minor source
preconstruction approval programs. The CAA contains separate and
distinct requirements for operating permits, which we are not reviewing
in this action.
---------------------------------------------------------------------------
\12\ The Act defines ``construction'' when used on connection
with any source or facility, to include ``modification,'' which
``means any physical change in, or change in the method of operation
of, a stationary source which increases the amount of any air
pollutant emitted by such source or which results in the emission of
any air pollutant not previously emitted. CAA sections 111(a)(4),
169(2)(C).
---------------------------------------------------------------------------
EPA's implementing regulations specify the requirements for minor
NSR programs, and the relevant provisions are discussed here. 40 CFR
51.160-51.164. Each state SIP must set forth legally enforceable
procedures which will allow the state to determine whether the
construction or modification of a minor source, or a ``minor
modification'' of an existing source, ``will'' (1) result in a
violation of applicable portions of the State's control strategy, or
(2) interfere with attainment of maintenance of any NAAQS in the State
or in a neighboring state. 40 CFR 51.160(a). The SIP must also include
the means by which a state can ``prevent'' construction that ``will
interfere with the attainment or maintenance of a national standard.''
40 CFR 51.160(b). Therefore, SIPs must require that owners or operators
of source that are subject to minor NSR submit information to the state
so the state can determine if the construction or modification of the
source will result in a violation of the control strategy or interfere
with attainment of maintenance of the NAAQS. 40 CFR 51.160(b). SIPs
must also contain, among other elements, a ``control strategy,'' which
is a combination of measures (including emission limitations and
measures that apply to stationary sources) designed to achieve the
reduction of emission necessary for attainment and maintenance of the
NAAQS. 40 CFR 51.100(n). Therefore, there are minimum statutory and
regulatory requirements that apply to minor source permit programs,
adherence to which is determined under the CAA by EPA. CAA section 110.
Under the current, federally-approved South Dakota SIP, minor
sources are subject to the State's permitting requirements and must
receive authorization to proceed with the construction or modification
in accordance with the SIP, [ARSD 74:36:04:02], unless they meet
exemption requirements in ARSD 74:36:04:03.
Under the State's proposed program that allows for initiating
construction prior to issuance, the owner or operator may begin
construction or modification if they meet two basic requirements: (1)
Submit a permit application to the department; and (2) notify the
department that they intend to initiate construction. ARSD
74:36:20:01.01(1), (2). Once these two requirements are met, the owner
or operator may begin and complete construction or modification of true
minor sources. ARSD 74:36:20:01.01(3), (4). The proposed rules do not
require State review of the proposed construction or modification
before the construction of modification occurs. The State rules also do
not provide for the State to affirmatively approve the proposed
modification or construction before it commences or before completion
of the construction or modification. While there are provisions in the
rule that cover activities after construction and modification,\13\
there is no State administrative approval or review of any kind prior
to construction activities. The State receives notice from the owner or
operator before construction starts; however, there are no provisions
in the rule that specify any action the State is to take regarding that
notice or any mechanism to ensure preconstruction review and approval.
Therefore, neither the State, public, nor EPA can determine whether the
project will be in compliance with the CAA and implementing regulations
before construction is initiated and completed.
---------------------------------------------------------------------------
\13\ The proposed SIP rule provides that: The owner or operator
assume liability for construction (ARSD 74:36:20:02.01(5)); the
owner or operator may not operate the equipment and emit air
pollutants prior to receiving a construction permit (ARSD
74:36:20:02.01(5)); if the department demonstrates that the
construction or modification will interfere with the attainment or
maintenance of the NAAQS or increment, the owner or operator must
cease construction (ARSD 74:36:20:02.01(6)); and (4) the owner or
operator will be required to make any changes to the new source or
modification of an existing source that may be imposed in the
construction permit (ARSD 74:36:20:02.01(7)).
---------------------------------------------------------------------------
The State rules allow construction to proceed, and provide for
review of the construction while it is underway (or after the
construction is complete). As discussed above, we interpret the CAA and
implementing regulations to require regulation and approval of
construction of any stationary source before the construction occurs,
not as proposed by the State, review and approval construction in
process or after it has occurred. While we have not interpreted the CAA
and regulations to require that states implement the SIP requirement
for a minor source program through the mechanism of a permitting
program, we have required that SIPs include some mechanism for
preconstruction review and approval of proposed minor sources before
the activities commence. Such review and approval is necessary to
determine whether the proposed construction or modification will
violate a control strategy or interfere with attainment or maintenance
of the NAAQS and to ``prevent such construction or modification'' that
will do so as required by 51.160(a) and (b).\14\ The proposed rules
provide for State approval before the owner or operator begins
operating the source and emitting pollutants but provide no mechanism
to evaluate or prevent proposed
[[Page 36423]]
construction. Therefore, the proposed changes to the SIP are incomplete
as they lack the ``legally enforceable procedures that enable'' the
State to make the necessary determination and ensure that the State
``will prevent such construction'' if the source ``will'' violate the
control strategy or interfere with NAAQS attainment. Finally, the
commenter appears to imply that our preliminary comments to the State
are controlling or binding on our final action. As explained above,
while we aim, and often do, provide comments early and throughout a
state's rulemaking process, those comments are not final agency
actions. There is nothing in the Act that requires such comments, much
less that makes them binding on EPA such as to require that EPA approve
a SIP that does not meet regulatory requirements. To the contrary,
Congress entrusted with EPA an oversight role to ensure the
requirements of the Act are met. Moreover, nothing in EPA's preliminary
comments suggested that the State's draft rules would be approvable if
the State were to make the suggested changes.
---------------------------------------------------------------------------
\14\ We would note, however, to a substantial degree, it is the
permit process itself, embodied in South Dakota's current SIP
regulations, that provides the vehicle to identify and make
enforceable specific measures necessary to protect the NAAQS. As
explained in the notice, it is the lack of such authority for the
State to review and approve the modification or construction that is
fatal to the proposed revisions.
---------------------------------------------------------------------------
Comment: DENR also takes exception to EPA's implication that DENR's
decision to approve or deny a permit would be influenced by a facility
that has been built (the ``equity in the ground'' issue) and could
potentially cause a violation of a NAAQS. The comments also note EPA's
concerns expressed in the proposal regarding fundamental design issues
that cannot be overcome should the State seek modifications to protect
the NAAQS. DENR explains that: (1) The State rules require the owner or
operator to assume these risks and make required changes before
operation; (2) the State ``has taken enforcement action when necessary
on facilities that have violated their permits and/or that began
construction and operation prior to obtaining the appropriate
permits;'' (3) since the State established its initial SIP in the
1970's ``the construction and operation of a true minor source has not
caused or interfered with attaining or maintaining a National Ambient
Air Quality Standard;'' and (4) if DENR believes a NAAQS would be
violated, ``DENR would prevent a source from operating until
appropriate changes were made to protect'' the NAAQS.
Response: EPA agrees in part with this comment. First, we
acknowledge that there are some safeguards in the proposed rule;
however, we remain concerned that there is no mechanism for either the
public or local regulatory authorities with jurisdiction to comment on
where ``the source will be located.'' And leaving aside the lack of
regulatory and public input into siting decisions, after a source has
been constructed there may remain fundamental design issues that cannot
be overcome by the provisions in the proposed rules. Second, the
comment indicates that the State has taken enforcement action where
necessary; however, it provides no details regarding such actions.
Third, the comment suggests that true minor sources have not caused or
interfered with attaining or maintaining the NAAQS, but provides no
evidence to support this statement and does not address the legal
requirement for legally enforceable procedures to ``prevent''
construction of a source that ``will'' have such effects. Finally, the
comments indicate that if DENR believes enforcement were necessary, it
would prevent the source from ``operating.'' The comment does not
include a reference to what authority the DENR would use for such
enforcement. Moreover, the comment asserts that the State has authority
to prevent source operation but does not attempt to assert that the
program authorizes the state to ``prevent such construction'' as may
violate the control strategy or interfere with attainment. EPA
acknowledges that 74:36:20:02.01 (Initiating construction prior to
permit issuance) has some safeguards in place; however, the rules fall
short of meeting the requirements of the CAA and implementing
regulations.
Comment: DENR indicates it ``believes it has provided enough
provisions in allowing construction prior to DENR completing its
analysis (i.e., statement of basis) of the project and issuing a
construction permit after a 30-day public comment period to protect''
both the State's control strategy and the NAAQS. DENR explains this is
demonstrated by approximately three years of program implementation.
DENR also explains that the State is in full attainment with all the
NAAQS.
Response: EPA disagrees with this comment because the final rule,
as adopted by the State, allows no review or comment on siting
decisions and does not require any type of administrative approval from
the State prior to allowing unpermitted ``construction'' activities.
Therefore, neither the State, public, nor EPA can evaluate siting
decisions or determine whether the project ``will'' be in compliance
with the CAA and implementing regulations before construction occurs.
Regardless of South Dakota's current attainment status of the NAAQS,
74:36:20:02.01 does not meet the minimum requirements as outlined in
the beginning of Section II of this rulemaking.
The fact that South Dakota has implemented the proposed changes to
the SIP before EPA's final action, is not, as the comment appears to
suggest, a basis for EPA approval. Under CAA section 116, a state may
not implement any emission limitation or any control or abatement
requirement that is less stringent than the applicable, approved SIP.
The current SIP requires that sources obtain a permit from the State
prior to construction. The proposed SIP revisions are less stringent
than the existing SIP because they allow sources to construct without
obtaining a permit prior to construction. Therefore, proposed SIP
revisions violate CAA section 116 by exempting sources from the
existing SIP requirement to obtain a permit before beginning
construction.
Furthermore, as we explained in our proposal, Section 110(i) of the
CAA specifically precludes states from changing requirements of the SIP
except through SIP revisions approved by EPA. SIP revisions will be
approved by EPA only if they meet all requirements of the Act and the
implementing regulations. The CAA gives EPA both the authority and the
obligation to review a proposed program's compliance with the Act and
applicable regulations and to disapprove regulations that do not meet
legal requirements. Therefore, a state's implementation of proposed SIP
amendments prior to EPA approval, does not limit EPA's authority to
take final rulemaking action to disapprove SIP provisions that the
state has been implementing without SIP approval.
Finally, the commenter suggests the permit rules preventing sources
from operating protect the State's control strategy and the NAAQS, and
points to the State's attainment status for all the NAAQS. However, the
commenter provides nothing further in its comments in the way of
rationale and data to show that allowing unpermitted construction will
ensure the State's continuing and future attainment status. CAA section
110(l) requires a demonstration that a SIP revision does not interfere
with any requirement concerning attainment and maintenance of the NAAQs
and that any relaxation is sufficiently protective of air quality and
other CAA requirements in order for EPA to approve. The fact that the
SIP submittal and the comments lack a demonstration (e.g., air quality
monitoring data and trends, projected minor source participation and
impacts, and emission inventory data and trends) to show that the minor
source permitting rule revisions are not likely to interfere with NAAQS
or the State's SIP control strategy provides further evidence that the
SIP is not approvable.
[[Page 36424]]
Without a demonstration from the State that shows the minor sources
that are subject to this program will not impact attainment and
maintenance, we have no information to determine the significance of
the proposed rule and whether the sources will impact the NAAQS. Minor
sources, either individually or collectively, may impact attainment.
Finally, even if we assume the substitution of the new program for the
prior minor source permit program were allowed under section 110(l),
the State has provided no demonstration to show the new rules achieve
the same results as the existing rules for these sources. Therefore, we
lack information and a basis to approve these amendments to the SIP
under section 110(1).
III. Basis for Our Final Action
We have fully considered the comments we received, and have
concluded that no changes from our proposed rule are warranted. As
discussed in our proposal and this rule, our action is based on an
evaluation of South Dakota's rules against the requirements of CAA
sections 110(a)(2)(C), 110(i), 110(l), 116, our minor source NSR
regulations at 40 CFR 51.160-51.164, and other requirements discussed
in section II of this action.
Section 110(a)(2)(C) of the Act contains the requirements for
preconstruction review programs for minor sources and requires that
each SIP include a program to regulate the construction and
modification of stationary sources as necessary to assure that the
NAAQS are achieved.
EPA's minor source implementing regulations are in 40 CFR 51.160-
51.164. The regulations require that a SIP include ``legally
enforceable procedures that enable'' the permitting agency to determine
whether construction ``will result in'' interference with the NAAQS, 40
CFR 51.160(a). The SIP must also include the means by which a state or
local agency can ``prevent'' construction that ``will interfere with
the attainment or maintenance of a national standard.'' 40 CFR
51.160(b). 40 CFR 51.161(a) requires that the legally enforceable
procedures in 40 CFR 51.160 must also require the state or local agency
to provide opportunity for public comment on information submitted by
owners or operators. The public information must include the agency's
analysis of the effect of construction or modification on ambient air
quality, including the agency's proposed approval or disapproval. 40
CFR 51.161(b) requires a minimum 30-day public comment period. Finally,
the regulations require that public notice be sent to the EPA Regional
Office and to all other state and local air pollution control agencies
having jurisdiction in the region in which the new or modified source
``will be located.'' 40 CFR 51.161(d).
We are approving those rules that meet the relevant requirements
and disapproving those rules that do not meet the relevant
requirements, or are not appropriate for inclusion in the SIP.
Specifically, we are disapproving 74:36:04:20:01 (Initiating
Construction Prior to Permit Issuance), and the related phrase:
``unless it meets the requirements in 74:36:20:02.01'' in
74:36:04:20:02 (Construction Permit Required). We are disapproving the
related phrase because it references the rule we are disapproving.
For a detailed description of the bases for our actions on the
individual rules, please refer to our notice of proposed rulemaking (79
FR 21424) and our response to comments in section II of this action.
We are sensitive to the concerns expressed in the State's comments.
We also understand the State's goals in promulgating rule
74:36:20:02.01, as expressed during the State's rulemaking, were to
``expedite the construction of specific facilities that will have
minimal impact to the ambient air and for those projects that may be
impacted by inclement weather (i.e. winter months),'' \15\ ``and to
ensure that new businesses and existing businesses looking to expand
are permitted in an expedited manner.'' \16\ 79 FR 21428. If requested
by South Dakota, EPA will work with the State to develop revised rules
that are consistent with the State goals and consistent with the CAA
and implementing regulations.\17\
---------------------------------------------------------------------------
\15\ State of South Dakota SIP Submittal, at PDF pages 170-171
(June 14, 2011, part 1 of 2).
\16\ State of South Dakota SIP Submittal, at PDF page 105 (June
14, 2011, part 2 of 2) (Board of Minerals and Environment Minutes,
February 17, 2011).
\17\ One option for South Dakota is to amend its ``initiating
construction prior to permit issuance'' section to allow only
certain limited, seasonal, pre-permit construction activities and
specify which activities are allowed, and exclude construction of
any emitting unit. An example of this type of pre-permit
construction language can be found in the Administrative Rules of
Montana (ARM) 17.8.743(2), which EPA approved on August 8, 2011 (76
FR 40237).
---------------------------------------------------------------------------
IV. Final Action
In this rulemaking, we are taking final action to: (1) Approve
revisions to 74:36:01:01 (Definitions); 74:36:02 (Ambient Air Quality);
74:36:03 (Air Quality Episodes); 74:36:04 (Operating Permits for Minor
Sources); 74:36:10 (New Source Review); 74:36:11 (Performance Testing);
74:36:12 (Control of Visible Emissions); 74:36:13 (Continuous Emissions
Monitoring Systems); 74:36:18 (Regulations for State Facilities in the
Rapid City Area); and 74:36:20 (Construction Permits for New Sources or
Modifications); (2) Disapprove 74:36:20:02.01 (Initiating Construction
Prior to Permit Issuance), and the phrase ``, unless it meets the
requirements in 74:36:20:02.01'' in 74:36:20:02 (Construction Permit
Required); (3) Not take action on 74:36:05 (Operating Permits for Part
70 Sources); 74:36:07 (New Source Performance Standards); 74:36:08
(National Emission Standards for Hazardous Air Pollutants); 74:36:09
(Prevention of Significant Deterioration); 74:36:16 (Acid Rain
Program); and 74:36:19 (Mercury Budget Trading Program).
V. Statutory and Executive Orders Review
Under the Clean Air Act, 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 Clean Air Act.
Accordingly, this final action merely approves certain state law as
meeting Federal requirements, disapproves other state law as not
meeting Federal requirements, and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive 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, 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);
[[Page 36425]]
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 Clean Air Act; 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 August 26, 2014. 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 CAA 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.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 29, 2014.
Shaun L. McGrath,
Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart QQ--South Dakota
0
2. Section 52.2170 is amended in the table titled ``State of South
Dakota Regulations'' in paragraph (c)(1):
0
a. By revising the table entries for ``74:36:01:01'' and
``74:36:01:05'';
0
b. By adding the table entry for ``74:36:01:10'' in numerical order;
0
c. By revising the table entry for ``74:36:01:20'';
0
d. By adding the table entry for ``74:36:01:21'' in numerical order;
0
e. By revising the table entries for ``74:36:02:02'' through
``74:36:02:05'', ``74:36:03:01'', and ``74:36:03:02'';
0
f. By adding the table entries for ``74:36:04:02'', ``74:36:04:02.01'',
and ``74:36:04:03'' in numerical order;
0
g. By revising the table entry for ``74:36:04:04'';
0
h. By adding the table entries for ``74:36:04:06'', ``74:36:04:07'',
``74:36:04:09'', ``74:36:04:10'', ``74:36:04:12'', ``74:36:04:12.01'',
``74:36:04:13'', ``74:36:04:15'' through ``74:36:04:18'',
``74:36:04:20'', ``74:36:04:20.01'', ``74:36:04:20.04'',
``74:36:04:23'', ``74:36:04:27'', and ``74:36:04:32'' in numerical
order;
0
i. By revising the table entries for ``74:36:10:02'',
``74:36:10:03.01'', ``74:36:10:05'', ``74:36:10:07'', and
``74:36:10:08'';
0
j. By removing the table entries for ``74:36:10:09'' and
``74:36:10:10'' and the second entry for ``74:36:13:07'' ;
0
k. By revising the table entries for ``74:36:11:01'', ``74:36:12:01'',
``74:36:12:03'', ``74:36:13:02'', ``74:36:13:03'', ``74:36:13:04'',
``74:36:13:06'', the first entry for ``74:36:13:07'', and the entries
for ``74:36:13:08'', and ``74:36:18:10''; and
0
l. By adding a new centered heading for ``74:36:20 [Construction
Permits For New Sources Or Modifications]'' and the table entries
``74:36:20:01 through 74:36:20:24'', in numerical order.
The amendments read as follows:
Sec. 52.2170 Identification of plan.
* * * * *
(c) * * *
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective EPA approval date Explanations
date and citation \1\
----------------------------------------------------------------------------------------------------------------
74:36:01 Definitions
----------------------------------------------------------------------------------------------------------------
74:36:01:01...................... Definitions......... 4/20/2011 6/27/2014, [Insert
Federal Register
citation].
74:36:01:05...................... Applicable 6/28/2010 6/27/2014, [Insert
requirements of the Federal Register
Clean Air Act citation].
defined.
* * * * * * *
74:36:01:10...................... Modification defined 6/28/2010 6/27/2014, [Insert
Federal Register
citation].
* * * * * * *
74:36:01:20...................... Physical change in 6/28/2010 6/27/2014, [Insert
or change in the Federal Register
method of operation citation].
defined.
74:36:01:21...................... Commence 6/28/2010 6/27/2014, [Insert
construction Federal Register
defined. citation].
----------------------------------------------------------------------------------------------------------------
[[Page 36426]]
74:36:02 Ambient Air Quality
----------------------------------------------------------------------------------------------------------------
74:36:02:02...................... Ambient air quality 6/28/2010 6/27/2014, [Insert
standards. Federal Register
citation].
74:36:02:03...................... Methods of sampling 6/28/2010 6/27/2014, [Insert
and analysis. Federal Register
citation].
74:36:02:04...................... Air quality 6/28/2010 6/27/2014, [Insert
monitoring network. Federal Register
citation].
74:36:02:05...................... Ambient air 6/28/2010 6/27/2014, [Insert
monitoring Federal Register
requirements. citation].
----------------------------------------------------------------------------------------------------------------
74:36:03 Air Quality Episodes
----------------------------------------------------------------------------------------------------------------
74:36:03:01...................... Air pollution 6/28/2010 6/27/2014, [Insert
emergency episode. Federal Register
citation].
74:36:03:02...................... Episode emergency 6/28/2010 6/27/2014, [Insert
contingency plan. Federal Register
citation].
----------------------------------------------------------------------------------------------------------------
74:36:04 Operating Permits for Minor Sources
----------------------------------------------------------------------------------------------------------------
74:36:04:02...................... Minor source 6/28/2010 6/27/2014, [Insert
operating permit Federal Register
required. citation].
74:36:04:02.01................... Minor source 6/28/2010 6/27/2014, [Insert
operating permit Federal Register
exemption. citation].
74:36:04:03...................... Emission unit 6/28/2010 6/27/2014, [Insert
exemptions. Federal Register
citation].
74:36:04:04...................... Standard for 6/28/2010 6/27/2014, [Insert
issuance of a minor Federal Register
source operating citation].
permit.
74:36:04:06...................... Timely and complete 6/28/2010 6/27/2014, [Insert
application for Federal Register
operating permit citation].
required.
74:36:04:07...................... Required contents of 6/28/2010 6/27/2014, [Insert
complete Federal Register
application for citation].
operating permit.
74:36:04:09...................... Permit application-- 6/28/2010 6/27/2014, [Insert
Completeness review. Federal Register
citation].
74:36:04:10...................... Time period for 6/28/2010 6/27/2014, [Insert
department's Federal Register
recommendation. citation].
74:36:04:12...................... Public participation 6/28/2010 6/27/2014, [Insert
in permitting Federal Register
process. citation].
74:36:04:12.01................... Public review of 6/28/2010 6/27/2014, [Insert
department's draft Federal Register
permit. citation].
74:36:04:13...................... Final permit 6/28/2010 6/27/2014, [Insert
decision--Notice to Federal Register
interested persons. citation].
74:36:04:15...................... Contents of 6/28/2010 6/27/2014, [Insert
operating permit. Federal Register
citation].
74:36:04:16...................... Operating permit 6/28/2010 6/27/2014, [Insert
expiration. Federal Register
citation].
74:36:04:17...................... Renewal of operating 6/28/2010 6/27/2014, [Insert
permit. Federal Register
citation].
74:36:04:18...................... Operating permit 6/28/2010 6/27/2014, [Insert
revision. Federal Register
citation].
74:36:04:20...................... Procedures for 6/28/2010 6/27/2014, [Insert
administrative Federal Register
permit amendments. citation].
74:36:04:20.01................... Minor permit 6/28/2010 6/27/2014, [Insert
amendment required. Federal Register
citation].
74:36:04:20.04................... Department deadline 6/28/2010 6/27/2014, [Insert
to approve minor Federal Register
permit amendment. citation].
74:36:04:23...................... Reopening operating 6/28/2010 6/27/2014, [Insert
permit for cause. Federal Register
citation].
74:36:04:27...................... Operating permit 6/28/2010 6/27/2014, [Insert
termination, Federal Register
revision, and citation].
revocation.
74:36:04:32...................... General permits..... 6/28/2010 6/27/2014, [Insert
Federal Register
citation].
[[Page 36427]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
74:36:10 New Source Review
----------------------------------------------------------------------------------------------------------------
74:36:10:02...................... Definitions......... 6/25/2013 6/27/2014, [Insert
Federal Register
citation].
74:36:10:03.01................... New source review 6/25/2013 6/27/2014, [Insert
preconstruction Federal Register
permit required. citation].
74:36:10:05...................... New source review 6/25/2013 6/27/2014, [Insert
preconstruction Federal Register
permit. citation].
74:36:10:07...................... Determining credit 6/25/2013 6/27/2014, [Insert
for emission Federal Register
offsets. citation].
74:36:10:08...................... Projected actual 6/25/2013 6/27/2014, [Insert
emissions. Federal Register
citation].
----------------------------------------------------------------------------------------------------------------
74:36:11 Performance Testing
----------------------------------------------------------------------------------------------------------------
74:36:11:01...................... Stack performance 6/28/2010 6/27/2014, [Insert
testing or other Federal Register
testing methods. citation].
----------------------------------------------------------------------------------------------------------------
74:36:12 Control of Visible Emissions
----------------------------------------------------------------------------------------------------------------
74:36:12:01...................... Restrictions on 6/28/2010 6/27/2014, [Insert
visible emissions. Federal Register
citation].
74:36:12:03...................... Exceptions granted 6/28/2010 6/27/2014, [Insert
to alfalfa Federal Register
pelletizers or citation].
dehydrators.
----------------------------------------------------------------------------------------------------------------
74:36:13 Continuous Emissions Monitoring Systems
----------------------------------------------------------------------------------------------------------------
74:36:13:02...................... Minimum performance 6/28/2010 6/27/2014, [Insert
specifications for Federal Register
all continuous citation].
emission monitoring
systems.
74:36:13:03...................... Reporting 6/28/2010 6/27/2014, [Insert
requirements. Federal Register
citation].
74:36:13:04...................... Notice to department 6/28/2010 6/27/2014, [Insert
of exceedance. Federal Register
citation].
74:36:13:06...................... Compliance 6/28/2010 6/27/2014, [Insert
certification. Federal Register
citation].
74:36:13:07...................... Credible evidence... 6/28/2010 6/27/2014, [Insert
Federal Register
citation].
74:36:13:08...................... Compliance assurance 6/28/2010 6/27/2014, [Insert
monitoring. Federal Register
citation].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
74:36:18 Regulations for State Facilities In the Rapid City Area
----------------------------------------------------------------------------------------------------------------
* * * * * * *
74:36:18:10...................... Visible emission 6/28/2010 6/27/2014, [Insert
limit for Federal Register
construction and citation].
continuous
operation
activities.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
74:36:20 Construction Permits For New Sources Or Modifications
----------------------------------------------------------------------------------------------------------------
74:36:20:01...................... Applicability....... 6/28/2010 6/27/2014, [Insert
Federal Register
citation].
74:36:20:02...................... Construction permit 4/20/2011 6/27/2014, [Insert Except for ``,
required. Federal Register unless it meets the
citation]. requirements in
section
74:36:20:02.01''.
74:36:20:03...................... Construction permit 6/28/2010 6/27/2014, [Insert
exemption. Federal Register
citation].
74:36:20:04...................... Emission unit 6/28/2010 6/27/2014, [Insert
exemptions. Federal Register
citation].
74:36:20:05...................... Standard for 6/28/2010 6/27/2014, [Insert
issuance of Federal Register
construction permit. citation].
74:36:20:06...................... Timely and complete 6/28/2010 6/27/2014, [Insert
application for a Federal Register
construction permit citation].
required.
[[Page 36428]]
74:36:20:07...................... Required contents of 6/28/2010 6/27/2014, [Insert
complete Federal Register
application for a citation].
construction permit.
74:36:20:08...................... Applicant required 6/28/2010 6/27/2014, [Insert
to supplement or Federal Register
correct application. citation].
74:36:20:09...................... Permit application-- 6/28/2010 6/27/2014, [Insert
Completeness review. Federal Register
citation].
74:36:20:10...................... Time period for 6/28/2010 6/27/2014, [Insert
department's Federal Register
recommendation. citation].
74:36:20:11...................... Public participation 6/28/2010 6/27/2014, [Insert
in permitting Federal Register
process. citation].
74:36:20:12...................... Public review of 6/28/2010 6/27/2014, [Insert
department's draft Federal Register
permit. citation].
74:36:20:13...................... Final permit 6/28/2010 6/27/2014, [Insert
decision--Notice to Federal Register
interested persons. citation].
74:36:20:14...................... Right to petition 6/28/2010 6/27/2014, [Insert
for contested case Federal Register
hearing. citation].
74:36:20:15...................... Contents of 6/28/2010 6/27/2014, [Insert
construction permit. Federal Register
citation].
74:36:20:16...................... Administrative 6/28/2010 6/27/2014, [Insert
permit amendment. Federal Register
citation].
74:36:20:17...................... Procedures for 6/28/2010 6/27/2014, [Insert
administrative Federal Register
permit amendments. citation].
74:36:20:18...................... Reopening 6/28/2010 6/27/2014, [Insert
construction permit Federal Register
for cause. citation].
74:36:20:19...................... Procedures to reopen 6/28/2010 6/27/2014, [Insert
construction permit. Federal Register
citation].
74:36:20:20...................... Construction permit 6/28/2010 6/27/2014, [Insert
does not exempt Federal Register
from other citation].
requirements.
74:36:20:21...................... Expiration of a 6/28/2010 6/27/2014, [Insert
construction permit. Federal Register
citation].
74:36:20:22...................... Notice of 6/28/2010 6/27/2014, [Insert
constructing or Federal Register
operating citation].
noncompliance--Cont
ents.
74:36:20:23...................... Petition for 6/28/2010 6/27/2014, [Insert
contested case on Federal Register
alleged violation. citation].
74:36:20:24...................... Circumvention of 6/28/2010 6/27/2014, [Insert
emissions not Federal Register
allowed. citation].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ In order to determine the EPA effective date for a specific provision that is listed in this table, consult
the Federal Register cited in this column for that particular provision.
* * * * *
[FR Doc. 2014-14031 Filed 6-26-14; 8:45 am]
BILLING CODE 6560-50-P
