Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 and 2006 PM2.5, 71040-71057 [2014-28301]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 79, Number 230 (Monday, December 1, 2014)]
[Proposed Rules]
[Pages 71040-71057]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-28301]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2011-0725, FRL-9919-95-Region-8]


Promulgation of State Implementation Plan Revisions; 
Infrastructure Requirements for the 1997 and 2006 PM2.5, 2008 Lead, 
2008 Ozone, and 2010 NO2 National Ambient Air Quality Standards; South 
Dakota

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of State Implementation Plan (SIP) revisions from the 
State of South Dakota to demonstrate the State meets infrastructure 
requirements of the Clean Air Act (CAA) for the National Ambient Air 
Quality Standards (NAAQS) promulgated for particulate matter (PM) on 
July 18, 1997 and October 17, 2006; lead (Pb) on October 15, 2008; 
ozone on March 12, 2008; and nitrogen dioxide (NO2) on 
January 22, 2010. EPA is also proposing to approve SIP revisions the 
State submitted updating the Prevention of Significant Deterioration 
(PSD) program and provisions regarding state boards. Section 110(a) of 
the CAA requires that each state submit a SIP for the implementation, 
maintenance, and enforcement of each NAAQS promulgated by EPA.

DATES: Written comments must be received on or before December 31, 
2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2011-0725, by one of the following methods:
     https://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     Email: fulton.abby@epa.gov.
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Director, Air Program, Environmental Protection 
Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129.
     Hand Delivery: Director, Air Program, Environmental 
Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. Such deliveries are only accepted 
Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding federal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2011-0725. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA, without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to

[[Page 71041]]

technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to section I, General Information, of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
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 that if at all possible, you 
contact the individual listed in the FOR FURTHER INFORMATION CONTACT 
section to view the hard copy of the docket. You may view the hard copy 
of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. 303-312-6563, 
fulton.abby@epa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The word Administrator means or refers to the Administrator of 
the U.S. Environmental Protection Agency.
    (ii) The initials AERR mean or refer to Air Emissions Reporting 
Rule.
    (iii) The words or initials Act or CAA mean or refer to the Clean 
Air Act, unless the context indicates otherwise.
    (iv) The initials AMNP mean or refer to Air Monitoring Network 
Plan.
    (v) The initials ARSD mean or refer to the Administrative Rules of 
South Dakota.
    (vi) The initials BACT mean or refer to Best Available Control 
Technology.
    (vii) The initials BME mean or refer to Board of Minerals and 
Environment.
    (viii) The initials CAIR mean or refer to the Clean Air Interstate 
Rule.
    (ix) The initials CBI mean or refer to confidential business 
information.
    (x) The initials CSAPR mean or refer to the Cross-State Air 
Pollution Rule.
    (xi) The words or initials Department or DENR mean or refer to the 
Department of Environment and Natural Resources.
    (xii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (xiii) The initials FRM mean or refer to Federal Reference Method.
    (xiv) The initials GHG mean or refer to greenhouse gases.
    (xv) The initials NAAQS mean or refer to national ambient air 
quality standards.
    (xvi) The initials NEI mean or refer to the National Emissions 
Inventory.
    (xvii) The initials NO2 mean or refer to nitrogen dioxide. The 2010 
NO2 NAAQS is expressed as the three year average of the 98th 
percentile of the annual distribution of daily maximum 1-hour average 
concentrations.
    (xviii) The initials NSR mean or refer to new source review.
    (xix) The initials Pb mean or refer to primary and secondary lead 
less than or equal to 0.15 micrograms per cubic meter.
    (xx) The initials PM mean or refer to particulate matter.
    (xxi) The initials PM2.5 mean or refer to particulate matter with 
an aerodynamic diameter of less than 2.5 micrometers (fine particulate 
matter).
    (xxii) The initials ppb mean or refer to parts per billion.
    (xxiii) The initials ppm mean or refer to parts per million.
    (xxiv) The initials PSD mean or refer to Prevention of Significant 
Deterioration.
    (xxv) The initials SDCL mean or refer to South Dakota Codified 
Laws.
    (xxvi) The initials SILs mean or refer to significant impact level.
    (xxvii) The initials SIP mean or refer to State Implementation 
Plan.
    (xxviii) The initials SLAMS mean or refer to State and Local Air 
Monitoring Stations.
    (xxix) The initials SMCs mean or refer to significant monitoring 
concentrations.
    (xxx) The initials SSM mean or refer to start-up, shutdown, or 
malfunction.
    (xxxi) The word State means or refers to the State of South Dakota.
    (xxxii) The initials [mu]g/m\3\ mean or refer to micrograms per 
cubic meter.

Table of Contents

I. General Information
II. Background
III. What is the scope of this Rulemaking?
IV. What infrastructure elements are required under Sections 
110(a)(1) and (2)?
V. How did South Dakota address the infrastructure elements of 
Sections 110(a)(1) and (2)?
VI. Analysis of the State submittals
VII. What action is EPA taking?
VIII. Statutory and Executive Orders Reviews

 I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to EPA through https://www.regulations.gov or email. Clearly 
mark the part or all of the information that you claim to be CBI. For 
CBI information on a disk or CD ROM that you mail to EPA, mark the 
outside of the disk or CD ROM as CBI and then identify electronically 
within the disk or CD ROM the specific information that is claimed as 
CBI. In addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register volume, 
date, and page number);
     Follow directions and organize your comments;
     Explain why you agree or disagree;
     Suggest alternatives and substitute language for your 
requested changes;
     Describe any assumptions and provide any technical 
information and/or data that you used;
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced;
     Provide specific examples to illustrate your concerns, and 
suggest alternatives;
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats; and,
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    On July 18, 1997, EPA promulgated a new 24-hour and annual NAAQS 
for fine particulate matter (PM2.5) (62 FR 38652). More 
recently, on October 17, 2006, EPA revised the standards for

[[Page 71042]]

PM2.5, tightening the 24-hour PM2.5 standard from 
65 micrograms per cubic meter ([mu]g/m\3\) to 35[mu]g/m\3\, and 
retaining the annual PM2.5 standard at 15 [mu]g/m\3\ (71 FR 
61144). On March 12, 2008, EPA promulgated a new NAAQS for ozone, 
revising the levels of the primary and secondary 8-hour ozone standards 
from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436). 
Subsequently, on October 15, 2008, EPA revised the level of the primary 
and secondary Pb NAAQS from 1.5 micrograms per cubic meter ([mu]g/m\3\) 
to 0.15 [mu]g/m\3\ (73 FR 66964). On January 22, 2010, EPA promulgated 
a new 1-hour primary NAAQS for NO2 at a level of 100 parts 
per billion (ppb) while retaining the annual standard of 53 ppb. The 
secondary NO2 NAAQS remains unchanged at 53 ppb (75 FR 6474, 
Feb. 9, 2010).
    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure their SIPs provide for 
implementation, maintenance, and enforcement of the NAAQS. These 
submissions must contain any revisions needed for meeting the 
applicable SIP requirements of section 110(a)(2), or certifications 
that their existing SIPs for PM, ozone, Pb, and NO2 already 
meet those requirements. EPA highlighted this statutory requirement in 
an October 2, 2007, guidance document entitled ``Guidance on SIP 
Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour 
Ozone and PM2.5 National Ambient Air Quality Standards'' 
(2007 Memo). On September 25, 2009, EPA issued an additional guidance 
document pertaining to the 2006 PM2.5 NAAQS entitled 
``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) 
for the 2006 24-Hour Fine Particle (PM2.5) National Ambient 
Air Quality Standards (NAAQS)'' (2009 Memo), followed by the October 
14, 2011, ``Guidance on Infrastructure SIP Elements Required Under 
Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air 
Quality Standards (NAAQS)'' (2011 Memo). Most recently, EPA issued 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and (2)'' on September 13, 2013 
(2013 Memo).

III. What is the scope of this Rulemaking?

    EPA is acting upon the SIP submissions from South Dakota that 
address the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the1997 and 2006 PM2.5, 2008 ozone, 2008 Pb, 
and 2010 NO2 NAAQS. The requirement for states to make a SIP 
submission of this type arises out of CAA section 110(a)(1). Pursuant 
to section 110(a)(1), states must make SIP submissions ``within 3 years 
(or such shorter period as the Administrator may prescribe) after the 
promulgation of a national primary ambient air quality standard (or any 
revision thereof),'' and these SIP submissions are to provide for the 
``implementation, maintenance, and enforcement'' of such NAAQS. The 
statute directly imposes on states the duty to make these SIP 
submissions, and the requirement to make the submissions is not 
conditioned upon EPA taking any action other than promulgating a new or 
revised NAAQS. Section 110(a)(2) includes a list of specific elements 
that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA; ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A; and 
nonattainment new source review (NSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\1\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \1\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is section 110(a)(2) requires 
that ``each'' SIP submission must meet the list of requirements 
therein, while EPA has long noted that this literal reading of the 
statute is internally inconsistent and would create a conflict with the 
nonattainment provisions in part D of title I of the CAA, which 
specifically address nonattainment SIP requirements.\2\ Section 
110(a)(2)(I) pertains to nonattainment SIP requirements and part D 
addresses when attainment plan SIP submissions to address nonattainment 
area requirements are due. For example, section 172(b) requires EPA to 
establish a schedule for submission of such plans for certain 
pollutants when the Administrator promulgates the designation of an 
area as nonattainment, and section 107(d)(1)(B) allows up to two years, 
or in some cases three years, for such designations to be 
promulgated.\3\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \2\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \3\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a

[[Page 71043]]

plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\4\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submission.\5\
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    \4\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' (78 
FR 4339, Jan. 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 p.m.2.5 NAAQS,'' (78 FR 4337, Jan. 22, 2013) (EPA's final 
action on the infrastructure SIP for the 2006 PM2.5 
NAAQS).
    \5\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants 
because the content and scope of a state's infrastructure SIP 
submission to meet this element might be very different for an entirely 
new NAAQS than for a minor revision to an existing NAAQS.\6\
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    \6\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\7\ EPA's 
2013 Memo was developed to provide states with up-to-date guidance for 
infrastructure SIPs for any new or revised NAAQS. Within this guidance, 
EPA describes the duty of states to make infrastructure SIP submissions 
to meet basic structural SIP requirements within three years of 
promulgation of a new or revised NAAQS. EPA also made recommendations 
about many specific subsections of section 110(a)(2) that are relevant 
in the context of infrastructure SIP submissions.\8\ The guidance also 
discusses the substantively important issues that are germane to 
certain subsections of section 110(a)(2). Significantly, EPA interprets 
sections 110(a)(1) and 110(a)(2) such that infrastructure SIP 
submissions need to address certain issues and need not address others. 
Accordingly, EPA reviews each infrastructure SIP submission for 
compliance with the applicable statutory provisions of section 
110(a)(2), as appropriate.
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    \7\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \8\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's SIP 
appropriately addresses the requirements of section 110(a)(2)(E)(ii) 
and section 128. The 2013 Memo explains EPA's interpretation that there 
may be a variety of ways by which states can appropriately address 
these substantive statutory requirements, depending on the structure of 
an individual state's permitting or enforcement program (e.g., whether 
permits and enforcement orders are approved by a multi-member board or 
by a head of an executive agency). However they are addressed by the 
state, the substantive requirements of

[[Page 71044]]

section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and NSR pollutants, including 
greenhouse gases (GHGs). By contrast, structural PSD program 
requirements do not include provisions that are not required under 
EPA's regulations at 40 CFR 51.166 but are merely available as an 
option for the state, such as the option to provide grandfathering of 
complete permit applications with respect to the 2012 PM2.5 
NAAQS. Accordingly, the latter optional provisions are types of 
provisions EPA considers irrelevant in the context of an infrastructure 
SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, inter alia, the requirement that states have a 
program to regulate minor new sources. Thus, EPA evaluates whether the 
state has an EPA approved minor NSR program and whether the program 
addresses the pollutants relevant to that NAAQS. In the context of 
acting on an infrastructure SIP submission, however, EPA does not think 
it is necessary to conduct a review of each and every provision of a 
state's existing minor source program (i.e., already in the existing 
SIP) for compliance with the requirements of the CAA and EPA's 
regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction (SSM) that may be contrary to the CAA and 
EPA's policies addressing such excess emissions; (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, Dec. 
31, 2002, as amended by 72 FR 32526, June 13, 2007. (``NSR Reform''). 
Thus, EPA believes it may approve an infrastructure SIP submission 
without scrutinizing the totality of the existing SIP for such 
potentially deficient provisions and may approve the submission even if 
it is aware of such existing provisions.\9\ It is important to note 
that EPA's approval of a state's infrastructure SIP submission should 
not be construed as explicit or implicit re-approval of any existing 
potentially deficient provisions that relate to the three specific 
issues just described.
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    \9\ By contrast, EPA notes that if a state were to include a new 
provision in an infrastructure SIP submission that contained a legal 
deficiency, such as a new exemption for excess emissions during SSM 
events, then EPA would need to evaluate that provision for 
compliance against the rubric of applicable CAA requirements in the 
context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up-to-date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, the 2013 Memo gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes its approach with respect to infrastructure 
SIP requirements is based on a reasonable reading of sections 110(a)(1) 
and 110(a)(2) because the CAA provides other avenues and mechanisms to 
address specific substantive deficiencies in existing SIPs. These other 
statutory tools allow EPA to take appropriately tailored action, 
depending upon the nature and severity of the alleged SIP deficiency. 
Section 110(k)(5) authorizes EPA to issue a ``SIP call'' whenever the 
agency determines that a state's SIP is substantially inadequate to 
attain or maintain the NAAQS, to mitigate interstate transport, or to 
otherwise comply with the CAA.\10\ Section 110(k)(6) authorizes EPA to 
correct errors in past actions, such as past approvals of SIP 
submissions.\11\ Significantly, EPA's determination that an action on a 
state's infrastructure SIP submission is not the appropriate time and 
place to address all potential existing SIP deficiencies does not 
preclude EPA's subsequent reliance on provisions in section 110(a)(2) 
as part of the basis for action to correct those deficiencies at a 
later time. For example, although it may not be appropriate to require 
a state to eliminate all existing inappropriate director's discretion 
provisions in the course of acting on an infrastructure SIP submission, 
EPA believes that section 110(a)(2)(A) may be among the statutory bases 
that EPA relies upon in the course of addressing

[[Page 71045]]

such deficiency in a subsequent action.\12\
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    \10\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639, April 18, 2011.
    \11\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536, Dec. 30, 2010. EPA has previously 
used its authority under CAA section 110(k)(6) to remove numerous 
other SIP provisions that the Agency determined it had approved in 
error. See, e.g., 61 FR 38664, July 25, 1996 and 62 FR 34641, June 
27, 1997 (corrections to American Samoa, Arizona, California, 
Hawaii, and Nevada SIPs); 69 FR 67062, Nov. 16, 2004 (corrections to 
California SIP); and 74 FR 57051, Nov. 3, 2009 (corrections to 
Arizona and Nevada SIPs).
    \12\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344, July 21, 2010 
(proposed disapproval of director's discretion provisions); 76 FR 
4540, Jan. 26, 2011 (final disapproval of such provisions).
---------------------------------------------------------------------------

IV. What infrastructure elements are required under Sections 110(a)(1) 
and (2)?

    CAA section 110(a)(1) provides the procedural and timing 
requirements for SIP submissions after a new or revised NAAQS is 
promulgated. Section 110(a)(2) lists specific elements the SIP must 
contain or satisfy. These infrastructure elements include requirements 
such as modeling, monitoring, and emissions inventories, which are 
designed to assure attainment and maintenance of the NAAQS. The 
elements that are the subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources and authority, conflict 
of interest, and oversight of local governments and regional agencies.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    A detailed discussion of each of these elements is contained in the 
next section.
    Two elements identified in section 110(a)(2) are not governed by 
the three year submission deadline of section 110(a)(1) and are 
therefore not addressed in this action. These elements relate to part D 
of Title I of the CAA, and submissions to satisfy them are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are due at the same time nonattainment area plan requirements 
are due under section 172. The two elements are: (1) Section 
110(a)(2)(C) to the extent it refers to permit programs (known as 
``nonattainment NSR'') required under part D, and (2) section 
110(a)(2)(I), pertaining to the nonattainment planning requirements of 
part D. As a result, this action does not address infrastructure 
elements related to the nonattainment NSR portion of section 
110(a)(2)(C) or related to 110(a)(2)(I). Furthermore, EPA interprets 
the CAA section 110(a)(2)(J) provision on visibility as not being 
triggered by a new NAAQS because the visibility requirements in part C, 
title 1 of the CAA are not changed by a new NAAQS.

V. How did South Dakota address the infrastructure elements of Sections 
110(a)(1) and (2)?

    The South Dakota Department of Environment and Natural Resources 
(DENR) submitted certifications of South Dakota's infrastructure SIP 
for the 1997 and 2006 PM2.5 NAAQS on May 20, 2008, and March 
4, 2011, respectively; the 2008 Pb NAAQS on October 10, 2012; the 2008 
ozone NAAQS on May 21, 2013; and the 2010 NO2 NAAQS October 
23, 2013. South Dakota's infrastructure certifications demonstrate how 
the State, where applicable, has plans in place that meet the 
requirements of section 110 for the 1997 and 2006 PM2.5, 
2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. These plans 
reference the current Administrative Rules of South Dakota (ARSD) and 
South Dakota Codified Laws (SDCL). These submittals are available 
within the electronic docket for today's proposed action at 
www.regulations.gov. The ARSD and SDCL referenced in the submittals are 
publicly available at https://legis.sd.gov/rules/RulesList.aspx and 
https://legis.sd.gov/Statutes/Codified_Laws/default.aspx. South Dakota's 
SIP, air pollution control regulations and statutes that have been 
previously approved by EPA and incorporated into the South Dakota SIP 
can be found at 40 CFR 52.2170.

VI. Analysis of the State Submittals

    1. Emission limits and other control measures: Section 110(a)(2)(A) 
requires SIPs to include enforceable emission limitations and other 
control measures, means, or techniques (including economic incentives 
such as fees, marketable permits, and auctions of emissions rights), as 
well as schedules and timetables for compliance as may be necessary or 
appropriate to meet the applicable requirements of this Act.
    Multiple SIP-approved State air quality regulations within the ARSD 
and cited in South Dakota's certifications provide enforceable emission 
limitations and other control measures, means of techniques, schedules 
for compliance, and other related matters necessary to meet the 
requirements of the CAA section 110(a)(2)(A) for the 1997 and 2006 
PM2.5, 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS, 
subject to the following clarifications.
    First, this infrastructure element does not require the submittal 
of regulations or emission limitations developed specifically for 
attaining the 1997 and 2006 PM2.5, 2008 Pb, 2008 
ozone, and 2010 NO2 NAAQS. Furthermore, South 
Dakota has no areas designated as nonattainment for the 1997 and 2006 
PM2.5, 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. 
South Dakota's certifications (contained within this docket) generally 
listed provisions within its SIP which regulate pollutants through 
various programs, including major and minor source permit programs. 
This suffices, in the case of South Dakota, to meet the requirements of 
section 110(a)(2)(A) for the 1997 and 2006 PM2.5, 2008 Pb, 
2008 ozone, and 2010 NO2 NAAQS.
    Second, as previously discussed, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. A number of states have such 
provisions which are contrary to the CAA and existing EPA guidance (52 
FR 45109, Nov. 24, 1987), and the agency plans to take action in the 
future to address such state regulations. In the meantime, EPA 
encourages any state having a director's discretion or variance 
provision which is contrary to the CAA and EPA guidance to take steps 
to correct the deficiency as soon as possible.
    Finally, in this action, EPA is also not proposing to approve or 
disapprove any existing state provision with regard to excess emissions 
during SSM of operations at a facility. A number of states have SSM 
provisions which are contrary to the CAA and existing EPA guidance \13\ 
and the agency is addressing such state regulations separately (78 FR 
12460, Feb. 22, 2013).
---------------------------------------------------------------------------

    \13\ Steven Herman, Assistant Administrator for Enforcement and 
Compliance Assurance, and Robert Perciasepe, Assistant Administrator 
for Air and Radiation, Memorandum to EPA Air Division Directors, 
``State Implementation Plans (SIPs): Policy Regarding Emissions 
During Malfunctions, Startup, and Shutdown.'' (September 20, 1999).
---------------------------------------------------------------------------

    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) 
requires SIPs to provide for establishment and operation of appropriate 
devices, methods, systems, and procedures necessary to ``(i) monitor, 
compile, and analyze data on ambient air quality, and (ii) upon

[[Page 71046]]

request, make such data available to the Administrator.''
    Under ARSD 74:36:02, the DENR operates a network of air monitoring 
sites. EPA approved South Dakota's DENR 2013 Ambient Air Monitoring 
Network Plan (AMNP) on December 31, 2013 \14\. The State of South 
Dakota submits data to EPA's Air Quality System database in accordance 
with the deadlines in 40 CFR 58.16. South Dakota's air monitoring 
programs and data systems meet the requirements of CAA section 
110(a)(2)(B) for the 1997 and 2006 PM2.5, 2008 Pb, 2008 
ozone, and 2010 NO2 NAAQS.
---------------------------------------------------------------------------

    \14\ Currently ambient air monitoring for lead is not conducted 
or planned because past monitoring and past and current emissions 
inventories indicate low potential lead concentrations in the State 
(see page 24 of the 2013 South Dakota AMNP at https://denr.sd.gov/des/aq/aqnews/Ann%20plan%202013.pdf).
---------------------------------------------------------------------------

    3. Program for enforcement of control measures: Section 
110(a)(2)(C) requires SIPs to include a program to provide for the 
enforcement of the measures described in subparagraph (A), and 
regulation of the modification and construction of any stationary 
source within the areas covered by the plan as necessary to assure 
NAAQS are achieved, including a permit program as required in parts C 
and D.
    To generally meet the requirements of section 110(a)(2)(C), the 
State is required to have SIP-approved PSD, nonattainment NSR, and 
minor NSR permitting programs adequate to implement the 1997 and 2006 
PM2.5, 2008 ozone, 2008 Pb, and 2010 NO2 NAAQS. 
As explained elsewhere in this action, EPA is not evaluating 
nonattainment related provisions, such as the nonattainment NSR program 
required by part D of the Act. EPA is evaluating the State's PSD 
program as required by part C of the Act, and the State's minor NSR 
program as required by 110(a)(2)(C).

PSD Requirements

    With respect to elements (C) and (J), EPA interprets the CAA to 
require each state to make an infrastructure SIP submission for a new 
or revised NAAQS that demonstrates that the air agency has a complete 
PSD permitting program meeting the current requirements for all 
regulated NSR pollutants. The requirements of element (D)(i)(II) may 
also be satisfied by demonstrating the air agency has a complete PSD 
permitting program correctly addressing all regulated NSR pollutants. 
South Dakota has shown that it currently has a PSD program in place 
that covers all regulated NSR pollutants, including GHGs.
    South Dakota implements the PSD program by, for the most part, 
incorporating by reference the federal PSD program as it existed on a 
specific date. The State periodically updates the PSD program by 
revising the date of incorporation by reference and submitting the 
change as a SIP revision. As a result, the SIP revisions generally 
reflect changes to PSD requirements that EPA has promulgated prior to 
the revised date of incorporation by reference.
    On June 30, 2011, we approved a revision to the South Dakota PSD 
program that addressed the PSD requirements of the Phase 2 Ozone 
Implementation Rule promulgated in 2005 (76 FR 43912, July 22, 2011). 
As a result, the approved South Dakota PSD program meets current 
requirements for ozone.
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions, Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S. Ct. 2427. The Supreme Court said that EPA may not treat 
GHGs as an air pollutant for purposes of determining whether a source 
is a major source required to obtain a PSD permit. The Court also said 
that EPA could continue to require that PSD permits, otherwise required 
based on emissions of pollutants other than GHGs, contain limitations 
on GHG emissions based on the application of Best Available Control 
Technology (BACT). In order to act consistently with its understanding 
of the Court's decision pending further judicial action to effectuate 
the decision, EPA is not continuing to apply EPA regulations that would 
require that SIPs include permitting requirements that the Supreme 
Court found impermissible. Specifically, EPA is not applying the 
requirement that a state's SIP-approved PSD program require that 
sources obtain PSD permits when GHGs are the only pollutant (i) that 
the source emits or has the potential to emit above the major source 
thresholds, or (ii) for which there is a significant emissions increase 
and a significant net emissions increase from a modification (e.g., 40 
CFR 51.166(b)(48)(v)). EPA anticipates a need to revise federal PSD 
rules in light of the Supreme Court opinion. In addition, EPA 
anticipates that many states will revise their existing SIP-approved 
PSD programs in light of the Supreme Court's decision. The timing and 
content of subsequent EPA actions with respect to EPA regulations and 
state PSD program approvals are expected to be informed by additional 
legal process before the United States Court of Appeals for the 
District of Columbia Circuit. At this juncture, EPA is not expecting 
states to have revised their PSD programs for purposes of 
infrastructure SIP submissions and is only evaluating such submissions 
to assure that the state's program correctly addresses GHGs consistent 
with the Supreme Court's decision.
    At present, EPA has determined that South Dakota's SIP is 
sufficient to satisfy elements (C), (D)(i)(II), and (J) with respect to 
GHGs because the PSD permitting program previously approved by EPA into 
the SIP continues to require that PSD permits (otherwise required based 
on emissions of pollutants other than GHGs) contain limitations on GHG 
emissions based on the application of BACT. Although the approved South 
Dakota PSD permitting program may currently contain provisions that are 
no longer necessary in light of the Supreme Court decision, this does 
not render the infrastructure SIP submission inadequate to satisfy 
elements (C), (D)(i)(II), and (J). The SIP contains the necessary PSD 
requirements at this time, and the application of those requirements is 
not impeded by the presence of other previously-approved provisions 
regarding the permitting of sources of GHGs that EPA does not consider 
necessary at this time in light of the Supreme Court decision. 
Accordingly, the Supreme Court decision does not affect EPA's proposed 
approval of South Dakota's infrastructure SIP as to the requirements of 
elements (C), (D)(i)(II), and (J).
    Finally, we evaluate the PSD program with respect to current 
requirements for PM2.5. In particular, on May 16, 2008, EPA 
promulgated the rule, ``Implementation of the New Source Review Program 
for Particulate Matter Less Than 2.5 Micrometers (PM2.5)'' 
(73 FR 28321) and on October 20, 2010, EPA promulgated the rule, 
``Prevention of Significant Deterioration (PSD) for Particulate Matter 
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant 
Impact Levels (SILs) and Significant Monitoring Concentration (SMC)'' 
(75 FR 64864). EPA regards adoption of these PM2.5 rules as 
a necessary requirement when assessing a PSD program for the purposes 
of element (C).
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources 
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment 
that remanded EPA's 2007 and 2008 rules implementing the 1997 
PM2.5 NAAQS. The court ordered EPA to ``repromulgate these 
rules pursuant to Subpart 4 consistent with this opinion.'' Id. at 437. 
Subpart 4 of

[[Page 71047]]

part D, Title 1 of the CAA establishes additional provisions for PM 
nonattainment areas.
    The 2008 implementation rule addressed by the court decision, 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321, 
May 16, 2008), promulgated NSR requirements for implementation of 
PM2.5 in nonattainment areas (nonattainment NSR) and 
attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 
only pertain to nonattainment areas, EPA does not consider the portions 
of the 2008 Implementation rule that address requirements for 
PM2.5 attainment and unclassifiable areas to be affected by 
the court's opinion. Moreover, EPA does not anticipate the need to 
revise any PSD requirements promulgated in the 2008 Implementation rule 
in order to comply with the court's decision. Accordingly, EPA's 
proposed approval of South Dakota's infrastructure SIP as to elements C 
or J with respect to the PSD requirements promulgated by the 2008 
Implementation rule does not conflict with the court's opinion.
    The Court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 Implementation rule also does not 
affect EPA's action on the present infrastructure action. EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred to 
as nonattainment SIP or attainment plan elements, which would be due by 
the dates statutorily prescribed under subpart 2 through 5 under part 
D, extending as far as 10 years following designations for some 
elements.
    The second PSD requirement for PM2.5 is contained in 
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (75 FR 64864). EPA regards 
adoption of the PM2.5 increments as a necessary requirement 
when assessing a PSD program for the purposes of element (C).
    On July 22, 2011, we approved revisions to ARSD Chapter 74:36:09 
that adopted by reference federal provisions of 40 CFR part 52, section 
21, as they existed on July 1, 2009 (76 FR 43912, July 22, 2011). As 
July 1, 2009 is after the effective date of the 2008 PM2.5 
Implementation Rule, 76 FR 43912 incorporated the requirements of the 
2008 PM2.5 Implementation Rule; specifically, 40 CFR 
52.21(b)(23)(i) and 52.21(b)(50). On July 29, 2013, the State submitted 
revisions amending the ARSD pertaining to the issuance of South Dakota 
air quality permits. On June 27, 2014, we acted on two pieces from the 
July 29, 2013 submittal (see 79 FR 36419) which included the removal of 
ARSD Chapter 74:36:04:03:01 (Minor Source Operating Permit Variance) 
and revisions to ARSD Chapter 74:36:10 (New Source Review). The July 
29, 2013, submittal also included revisions to ARSD Chapter 74:36:09 
(Prevention of Significant Deterioration) which we are acting on in 
this action. The revision adopted by reference federal provisions of 40 
CFR part 52, section 21, as they existed on July 1, 2012. As July 1, 
2012 is after the effective date of the 2010 PM2.5 Increment 
Rule, the revisions to ARSD 74:36:09 as submitted on July 29, 2013, 
incorporate the requirements of the 2010 PM2.5 Increment 
Rule; specifically, 40 CFR 52.21(b)(14)(i), (ii), (iii), (b)(15)(i), 
(ii), and paragraph (c). We propose to approve the necessary portions 
of the July 29, 2013 submission to reflect the requirements of the 2010 
PM2.5 Increment Rule. We are not proposing to act on any 
other portions of the July 29, 2013 submittal, including the 
incorporation by reference of SILs and SMCs for PM2.5.
    With these proposed revisions, South Dakota's SIP-approved PSD 
program will meet current requirements for PM2.5. As a 
result, EPA is proposing to approve South Dakota's infrastructure SIP 
for the 1997 and 2006 PM2.5, 2008 ozone, 2008 Pb, and 2010 
NO2 NAAQS with respect to the requirement in section 
110(a)(2)(C) to include a permit program in the SIP as required by part 
C of the Act.

Minor NSR

    The State has a SIP-approved minor NSR program, adopted under 
section 110(a)(2)(C) of the Act. The minor NSR program was originally 
approved by EPA on September 6, 1995 (60 FR 46222). Since approval of 
the minor NSR program, the State and EPA have relied on the program to 
assure that new and modified sources not captured by the major NSR 
permitting programs do not interfere with attainment and maintenance of 
the NAAQS. Additionally, EPA is not proposing to approve or disapprove 
any state rules with regard to the NSR Reform requirements because they 
are outside the scope of this action. EPA's recent action taken on 
changes to South Dakota's minor source NSR program (79 FR 36419, June 
27, 2014) does not impact the approvability of Section 110(a)(2)(C) in 
this action.
    EPA is proposing to approve South Dakota's infrastructure SIP for 
the 1997 and 2006 PM2.5, 2008 ozone, 2008 Pb, and 2010 
NO2 NAAQS with respect to the general requirement in section 
110(a)(2)(C) to include a program in the SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved.
    4. Interstate Transport: Section 110(a)(2)(D)(i) is subdivided into 
four ``prongs,'' two under 110(a)(2)(D)(i)(I) and two under 
110(a)(2)(D)(i)(II). The two prongs under 110(a)(2)(D)(i)(I) require 
SIPs to contain adequate provisions to prohibit emissions that (prong 
1) contribute significantly to nonattainment in any other state with 
respect to any such national primary or secondary NAAQS, and (prong 2) 
interfere with maintenance by any other state with respect to the same 
NAAQS. The two prongs under 110(a)(2)(D)(i)(II) require SIPs to contain 
adequate provisions to prohibit emissions that interfere with measures 
required to be included in the applicable implementation plan for any 
other state under part C (prong 3) to prevent significant deterioration 
of air quality or (prong 4) to protect visibility.
    We are proposing action on all four interstate transport prongs for 
the 2006 PM2.5, 2008 Pb, and 2010 NO2 NAAQS in 
this rulemaking. We are not acting on the requirements of section 
110(a)(2)(D)(i)(I) (prongs 1 and 2) for the 2008 ozone NAAQS in this 
proposed rulemaking and will act on these requirements in a separate 
action, but are proposing to approve prongs 3 and 4 for the 2008 ozone 
NAAQS with this action. EPA approved all four interstate transport 
requirements of section 110(a)(2)(D)(i) for the 1997 PM2.5 
NAAQS in a direct final rulemaking on May 8, 2008 (73 FR 26019).
a. Prong 1 (Significant Contribution to Nonattainment) and 2 
(Interference With Maintenance)
2006 PM2.5 NAAQS
    EPA has previously addressed the requirements of CAA section 
110(a)(2)(D)(i)(I) in past regulatory actions.\15\ EPA published the 
final Cross-State Air Pollution Rule (CSAPR) to address the first two 
elements of CAA section 110(a)(2)(D)(i)(I) in the eastern portion of 
the United States with respect

[[Page 71048]]

to the 2006 PM2.5 NAAQS, the 1997 PM2.5 NAAQS, 
and the 1997 8-hour ozone NAAQS (76 FR 48208, Aug. 8, 2011). CSAPR was 
intended to replace the earlier Clean Air Interstate Rule (CAIR) which 
was judicially remanded.\16\ See North Carolina v. EPA, 531 F.3d 896 
(D.C. Cir. 2008). On August 21, 2012, the U.S. Court of Appeals for the 
D.C. Circuit issued a decision vacating CSAPR, see EME Homer City 
Generation, L.P. v. E.P.A., 696 F.3d 7 (D.C. Cir. 2012), and ordering 
the EPA to continue implementing CAIR in the interim. However, on April 
29, 2014, the U.S. Supreme Court reversed and remanded the D.C. 
Circuit's ruling and upheld EPA's approach in CSAPR. EPA v. EME Homer 
City Generation, L.P., 134 S. Ct. 1584 (U.S. 2014).
---------------------------------------------------------------------------

    \15\ See NOX SIP Call (63 FR 57371, Oct. 27, 1998); 
Clean Air Interstate Rule (CAIR) (70 FR 25172, May 12, 2005); and 
Transport Rule or Cross-State Air Pollution Rule (76 FR 48208, 
Aug.8, 2011).
    \16\ CAIR addressed the 1997 annual and 24-hour PM2.5 
NAAQS, and the 1997 8-hour ozone NAAQS. It did not address the 2006 
24-hour PM2.5 NAAQS. For more information on CAIR, see 
the July 30, 2012 proposal for Arizona regarding interstate 
transport for the 2006 PM2.5 NAAQS (77 FR 44551, 44552). 
In addition, South Dakota was not covered by either CAIR or CSAPR.
---------------------------------------------------------------------------

    South Dakota's 2006 PM2.5 transport analysis contains 
the State's assessment of the potential for emissions of 
PM2.5 and PM2.5 precursors from South Dakota 
sources to significantly contribute to nonattainment or interfere with 
maintenance of the 24-hour PM2.5 standards in any other 
state. The State considered distance, population data in South Dakota 
and other states, and transport modeling conducted for the CAIR in its 
analysis. The State's analysis and all related documents can be found 
in the electronic docket for this action.
    To determine whether the CAA section 110(a)(2)(D)(i)(I) requirement 
is satisfied, EPA first determines whether a state's emissions 
contribute significantly to nonattainment or interfere with maintenance 
in downwind areas. If a state is determined not to have such 
contribution or interference, then section 110(a)(2)(D)(i)(I) does not 
require any changes to a SIP. EPA is proposing to determine that the 
existing SIP for South Dakota is adequate to satisfy the requirements 
of 110(a)(2)(D)(i)(I) of the CAA to address interstate transport 
requirements with regard to the 2006 PM2.5 NAAQS. This 
proposed conclusion is based on air quality modeling originally 
conducted by EPA during the rulemaking process for CSAPR. This modeling 
quantified, for each individual state within the modeling domain 
(including South Dakota), contributions to downwind nonattainment and 
maintenance areas.
    In the CSAPR rulemaking (proposal and final) process, EPA explained 
how nonattainment and maintenance ``receptors'' would be identified so 
that contribution to nonattainment and interference with maintenance 
could be assessed with respect to those receptors.\17\ The receptors 
were identified as all monitoring sites that had PM2.5 
design values above the level of the 2006 24-hour PM2.5 
NAAQS (35 [mu]g/m \3\) for certain analytic years. Then EPA compiled an 
emissions inventory for the year 2005, the most recent year for which 
EPA had a complete national inventory at that time. In the CSAPR 
analysis, EPA also projected the inventory for a future year analysis 
for evaluating the interstate transport impacts in that future 
year.\18\ The air quality modeling, conducted for CSAPR, then evaluated 
interstate contributions from emissions in upwind states to downwind 
nonattainment and maintenance receptors for the 1997 annual and 2006 
24-hour PM2.5 NAAQS. See, Air Quality Modeling Final Rule 
Technical Support Document, June 2011 (``Air Quality Modeling TSD'') 
for the CSAPR. Appendix D of the TSD details South Dakota's 
contribution data for the 2006 24-hour PM2.5 NAAQS for all 
downwind receptors.
---------------------------------------------------------------------------

    \17\ For our definition of both nonattainment and maintenance 
receptors, see the Technical Support Documents for the final CSAPR, 
including the ``Technical Support Document (TSD) for the Transport 
Rule--Air Quality Modeling,'' (the proposal TSD) June 2010, and the 
``Air Quality Modeling Final Rule Technical Support Document,'' (Air 
Quality Modeling TSD) June 2011, in the docket for this action.
    \18\ Emissions Inventory Final Rule TSD, June 28, 2011.
---------------------------------------------------------------------------

    EPA then used air quality thresholds to identify linkages between 
upwind states and downwind nonattainment and maintenance receptors. As 
detailed in EPA's Air Quality Modeling TSD, EPA used a threshold of 1% 
of the NAAQS to identify these linkages. Our analysis for CSAPR found 
that the 1% threshold captures a high percentage of the total pollution 
transport affecting downwind states for PM2.5.\19\ The air 
quality thresholds were therefore calculated as 1% of the NAAQS, which 
is 0.35 [mu]g/m\3\ for the 2006 24-hour PM2.5 NAAQS. EPA 
found states projected to exceed this air quality threshold at one or 
more downwind nonattainment receptors emissions to be linked to all 
such receptors, and therefore subject to further evaluation. EPA did 
not conduct further evaluation of emissions from states that were not 
linked to any downwind receptors.
---------------------------------------------------------------------------

    \19\ See section IV.F (Analysis of Contributions Captured by 
Various Thresholds) of the Air Quality Modeling TSD.
---------------------------------------------------------------------------

    The methodology and modeling used to analyze the impact of 
emissions from South Dakota and to identify potential linkages between 
South Dakota and downwind nonattainment and maintenance receptors with 
respect to the 1997 and 2006 PM2.5 NAAQS is described in 
further detail in the Air Quality Modeling TSD, which is available in 
the docket for this action.
    In its submittal, South Dakota considered factors we have generally 
found to be relevant for assessing interstate transport for western 
states that were not within the modeling domain for CSAPR.\20\ However, 
South Dakota was within the modeling domain for CSAPR. As we consider 
the modeling conducted during the development of CSAPR to contain the 
most accurate and comprehensive technical assessment of 
PM2.5 interstate transport for those states within its 
modeling domain, including South Dakota, we examined that analysis to 
assess transport of PM2.5 emissions from South Dakota to 
other states.
---------------------------------------------------------------------------

    \20\ See Memorandum from William T. Harnett entitled ``Guidance 
on SIP Elements Required Under Sections 110(a)(1) and (2) for the 
2006 24-Hour Fine Particle (PM2.5) National Ambient Air 
Quality Standards (NAAQS),'' September 25, 2009, available at https://www.epa.gov/ttn/caaa/t1/memoranda/20090925_harnett_pm25_sip_110a12.pdf.
---------------------------------------------------------------------------

    The air quality modeling performed during the development of CSAPR 
found that the impact from South Dakota emissions on both downwind 
nonattainment and maintenance receptors was less than the 1% threshold 
for the 2006 PM2.5 NAAQS. Therefore, EPA did not find 
emissions from South Dakota linked to any downwind nonattainment or 
maintenance receptors for the 2006 24-hour PM2.5 NAAQS.
    Below is a summary of the air quality modeling results for South 
Dakota from Table IV-9 of EPA's Air Quality Modeling TSD regarding 
South Dakota's largest contribution to both downwind PM2.5 
nonattainment and maintenance areas.

[[Page 71049]]



       Table 1--South Dakota's Largest Contribution to Downwind PM2.5 Nonattainment and Maintenance Areas
----------------------------------------------------------------------------------------------------------------
                                                                                    Largest          Largest
                                                                 Air quality        downwind         downwind
                            NAAQS                                 threshold     contribution to  contribution to
                                                                 ([mu]g/m\3\)    nonattainment     maintenance
                                                                                 ([mu]g/m \3\)    ([mu]g/m \3\)
----------------------------------------------------------------------------------------------------------------
2006 24-hour PM2.5 NAAQS (35 [mu]g/m \3\)....................            0.35             0.10             0.17
----------------------------------------------------------------------------------------------------------------

    Based on this analysis, we propose to approve South Dakota's 
submission certifying that its SIP meets the requirements of section 
110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS.
2008 Pb NAAQS
    South Dakota's analysis of potential interstate transport for the 
2008 Pb NAAQS includes considerations of Pb emissions, the distance of 
Pb sources in South Dakota to nearby states, and the lack of Pb 
nonattainment areas near the State's border. The State's analysis is 
available in the docket for this action.
    As noted in our October 14, 2011 Pb Infrastructure Guidance, there 
is a sharp decrease in Pb concentrations, at least in the coarse 
fraction, as the distance from a Pb source increases. For this reason, 
EPA found that the ``requirements of subsection (2)(D)(i)(I) (prongs 1 
and 2) could be satisfied through a state's assessment as to whether or 
not emissions from Pb sources located in close proximity to their state 
borders have emissions that impact the neighboring state such that they 
contribute significantly to nonattainment or interfere with maintenance 
in that state.'' \21\ In that guidance document, EPA further specified 
that any source appeared unlikely to contribute significantly to 
nonattainment unless it was located less than 2 miles from a state 
border and emitted at least 0.5 tons per year of Pb. South Dakota's 
110(a)(2)(D)(i)(I) analysis specifically noted that there are no 
sources in the State that meet both of these criteria. EPA concurs with 
the State's analysis and conclusion that no South Dakota sources have 
the combination of Pb emission levels and proximity to nearby 
nonattainment or maintenance areas to contribute significantly to 
nonattainment in or interfere with maintenance by other states for this 
NAAQS. South Dakota's SIP is therefore adequate to ensure that such 
impacts do not occur. We are proposing to approve South Dakota's 
submission in that its SIP meets the requirements of section 
110(a)(2)(D)(i) for the 2008 Pb NAAQS.
---------------------------------------------------------------------------

    \21\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements Required Under Sections 110(a)(1) and 110(a)(2) for 
the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS).'' 
Steve Page, OAQPS Director, October 14, 2011, at pg 8.
---------------------------------------------------------------------------

2010 NO2 NAAQS
    South Dakota's 2010 NO2 transport analysis includes 
considerations of the low level of NO2 emissions in the 
State, and specifically notes that the State's main source of 
NO2 emissions is in the process of installing pollution 
control equipment that will decrease its NO2 emissions by 
76%.\22\ South Dakota also notes that there are no designated 
nonattainment areas for the 2010 NO2 NAAQS, and that the 
only area that might be considered (according to South Dakota) as a 
potential maintenance area in the U.S. is hundreds of miles from South 
Dakota, and in the opposite direction of that in which prevailing winds 
travel (i.e., west to east) in the western U.S. The State's analysis is 
available in the docket for this action.
---------------------------------------------------------------------------

    \22\ Pollution control equipment is being installed at the Otter 
Tail Power Company--Big Stone 1, as BART in accordance with regional 
haze requirements. See 77 FR 24845, April 26, 2012.
---------------------------------------------------------------------------

    EPA concurs with the technical components of South Dakota's 2010 
NO2 transport analysis. In addition to the factors 
considered in the State's analysis, EPA also notes that the highest 
monitored NO2 design values in each state bordering South 
Dakota are significantly below the NAAQS (see Table 2, below).\23\ This 
fact further supports the State's contention that significant 
contribution to nonattainment or interference with maintenance of the 
NO2 NAAQS from South Dakota is very unlikely based on the 
lack of relatively nearby areas with high NO2.
---------------------------------------------------------------------------

    \23\ EPA did not calculate a 2010 one-hour NO2 design 
value in the state of Nebraska for the 2010-2012 design value 
period.

         Table 2--Highest Monitored 2010 NO2 NAAQS Design Values
------------------------------------------------------------------------
                                   2010-2012 Design    Percent of NAAQS
              State                      value             (100 ppb)
------------------------------------------------------------------------
Iowa............................  42 ppb............  42%.
Minnesota.......................  46 ppb............  46%.
Montana.........................  42 ppb............  42%.
North Dakota....................  39 ppb............  39%.
Nebraska........................  No Data...........  No Data.
Wyoming.........................  46 ppb............  46%.
------------------------------------------------------------------------
* Source: https://www.epa.gov/airtrends/values.html

    In addition to the monitored levels of NO2 in states 
bordering South Dakota being well below the NAAQS, South Dakota's 
highest design value from 2011-2013 was also significantly below this 
NAAQS (37 ppb).\24\
---------------------------------------------------------------------------

    \24\ https://www.epa.gov/airtrends/values.html.
---------------------------------------------------------------------------

    Based on all of these factors, EPA concurs with the State's 
conclusion that South Dakota does not contribute significantly to 
nonattainment or interfere with maintenance of the 2010 NO2 
NAAQS in other states. EPA is therefore proposing to determine that 
South Dakota's SIP includes adequate provisions to prohibit sources or 
other emission activities within the State from emitting NO2 
in amounts that will contribute significantly to nonattainment in or 
interfere with maintenance by any other state with respect specifically 
to the NO2 NAAQS.

[[Page 71050]]

b. Prongs 3 (PSD) and 4 (Visibility)
    South Dakota's certifications with regard to prongs 3 and 4 of 
element (D) vary by pollutant. Each certification can be found in the 
docket for this action.
    With regard to the PSD portion of section 110(a)(2)(D)(i)(II), this 
requirement may be met by a state's confirmation in an infrastructure 
SIP submission that new major sources and major modifications in the 
state are subject to a SIP-approved PSD program that satisfactorily 
implements the associated NAAQS. As discussed in more detail with 
respect to section 110(a)(2)(C), finalization of our proposed approval 
of certain PSD-related revisions in this action will ensure that South 
Dakota's SIP-approved PSD program meets current requirements for the 
2006 PM2.5, 2008 ozone, 2008 Pb, and 2010 NO2 
NAAQS. Accordingly, in this action EPA is proposing to approve the 
infrastructure SIP submission as meeting the applicable requirements of 
prong 3 of section 110(a)(2)(D)(i) for the 2006 PM2.5, 2008 
ozone, 2008 Pb, and 2010 NO2 NAAQS.
    With regard to the visibility portion of section 
110(a)(2)(D)(i)(II), this requirement may be satisfied by a state's 
regional haze SIP having been approved by EPA as meeting all current 
obligations. South Dakota submitted a regional haze SIP to EPA on 
January 21, 2011, and submitted an amendment to the SIP on September 
19, 2011. EPA approved South Dakota's Regional Haze SIP on April 26, 
2012 (77 FR 24845).
    The EPA is proposing to find that as a result of the prior approval 
of the South Dakota regional haze SIP, the South Dakota SIP contains 
adequate provisions to address 110(a)(2)(D)(i)(II) visibility 
requirements with respect to the 2006 PM2.5, 2008 Pb, 2008 
ozone, and 2010 NO2 NAAQS. Therefore, we are proposing to 
approve the South Dakota SIP as meeting the requirements of CAA section 
110(a)(2)(D)(i)(II) as it applies to visibility for the 2006 
PM2.5, 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.
    5. Interstate and International transport provisions: CAA section 
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring 
compliance with the applicable requirements of CAA sections 126 and 115 
(relating to interstate and international pollution abatement). 
Specifically, CAA section 126(a) requires new or modified major sources 
to notify neighboring states of potential impacts from the source.
    Section 126(a) requires notification to affected, nearby states of 
major proposed new (or modified) sources. Sections 126(b) and (c) 
pertain to petitions by affected states to the Administrator regarding 
sources violating the ``interstate transport'' provisions of section 
110(a)(2)(D)(i). Section 115 similarly pertains to international 
transport of air pollution. South Dakota's SIP-approved PSD program 
incorporates by reference the federal PSD program at 40 CFR 52.21. 
However, South Dakota separately implements public notice requirements 
by incorporating by reference (with certain modifications) 40 CFR 
51.166(q). In particular, section 51.166(q)(2)(iv), which requires 
notice to states whose lands may be affected by the emissions of 
sources subject to PSD, satisfies the notice requirement of section 
126(a).
    South Dakota has no pending obligations under sections 126(c) or 
115(b). Accordingly, South Dakota's SIP currently meets the 
requirements of those sections. The SIP therefore meets the 
requirements of 110(a)(2)(D)(ii) for the 2006 PM2.5, 2008 
Pb, 2008 ozone, and 2010 NO2 NAAQS.
    6. Adequate resources: Section 110(a)(2)(E)(i) requires states to 
provide necessary assurances that the state will have adequate 
personnel, funding, and authority under state law to carry out the SIP 
(and is not prohibited by any provision of federal or state law from 
carrying out the SIP or portion thereof). Section 110(a)(2)(E)(ii) also 
requires each state to comply with the requirements respecting state 
boards under CAA section 128. Section 110(a)(2)(E)(iii) requires states 
to ``provide necessary assurances that, where the State has relied on a 
local or regional government, agency, or instrumentality for the 
implementation of any [SIP] provision, the State has responsibility for 
ensuring adequate implementation of such [SIP] provision.''
a. Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal 
Authority Under State Law To Carry Out Its SIP, and Related Issues
    SDCL 34A-1-57 through 34A-1-60 provide adequate authority for the 
State of South Dakota and the DENR to carry out its SIP obligations 
with respect to the 1997 and 2006 PM2.5, 2008 Pb, 2008 
ozone, and 2010 NO2 NAAQS. The State receives sections 103 
and 105 grant funds through its Performance Partnership Grant from EPA 
along with required state matching funds to provide funding necessary 
to carry out South Dakota's SIP requirements. South Dakota's resources 
meet the requirements of CAA section 110(a)(2)(E). The regulations 
cited by South Dakota in their certifications and contained within this 
docket also provide the necessary assurances that the State has 
responsibility for adequate implementation of SIP provisions by local 
governments. Therefore, we propose to approve South Dakota's SIP as 
meeting the requirements of section 110(a)(2)(E)(i) and (E)(iii) for 
the 1997 and 2006 PM2.5, 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS.
b. Sub-Element (ii): State Boards
    Section 110(a)(2)(E)(ii) requires each state's SIP to contain 
provisions that comply with the requirements of section 128 of the CAA. 
That provision contains two explicit requirements: (i) That any board 
or body which approves permits or enforcement orders under the CAA 
shall have at least a majority of members who represent the public 
interest and do not derive a significant portion of their income from 
persons subject to such permits and enforcement orders; and (ii) that 
any potential conflicts of interest by members of such board or body or 
the head of an executive agency with similar powers be adequately 
disclosed.
    On June 16, 2014, EPA received a submission from the State of South 
Dakota to address the requirements of section 128. The submission 
revises language already in the EPA approved SIP at ARSD 74:09, 
Procedures Board of Minerals and Environment, to address conflict of 
interest requirements in section 128(a)(2) and adds language in SDCL 1-
40-25.1 to address board composition requirements in section 128(a)(1). 
We propose to approve that June 16, 2014 submission as meeting the 
requirements of section 128 for the reasons explained in more detail 
below. Because this revision will meet the requirements of section 128, 
we also propose to approve the State's infrastructure SIP submissions 
for element 110(a)(2)(E)(ii). The State made these infrastructure SIP 
submissions in connection with the 1997 and 2006 PM2.5, 2008 
Pb, 2008 ozone, and 2010 NO2 NAAQS, but section 128 is not 
NAAQS-specific and once the State has met the requirements of section 
128 that is sufficient for purposes of infrastructure SIP requirements 
for all of these NAAQS.
    We are proposing to approve the State's June 16, 2014 SIP 
submission as meeting the requirements of section 128 because we 
believe that it complies with the statutory requirements and is 
consistent with EPA's guidance recommendations concerning section 128. 
In 1978, EPA issued a guidance memorandum recommending ways states 
could meet the requirements of section 128, including suggested 
interpretations of certain key terms in

[[Page 71051]]

section 128.\25\ In this proposal notice, we discuss additional 
relevant aspects of section 128. We first note that, in the conference 
report on the 1977 amendments to the CAA, the conference committee 
stated, ``[i]t is the responsibility of each state to determine the 
specific requirements to meet the general requirements of [section 
128].'' \26\ This legislative history indicates that Congress intended 
states to have some latitude in adopting SIP provisions with respect to 
section 128, so long as states meet the statutory requirements of the 
section. We also note that Congress explicitly provided in section 128 
that states could elect to adopt more stringent requirements, as long 
as the minimum requirements of section 128 are met.
---------------------------------------------------------------------------

    \25\ Memorandum from David O. Bickart, Deputy General Counsel, 
to Regional Air Directors, Guidance to States for Meeting Conflict 
of Interest Requirements of Section 128 (Mar. 2, 1978).
    \26\ H.R. Rep. 95-564 (1977), reprinted in 3 Legislative History 
of the Clean Air Act Amendments of 1977, 526-27 (1978).
---------------------------------------------------------------------------

    In implementing section 128, the EPA has identified a number of key 
considerations relevant to evaluation of a SIP submission. EPA has 
identified these considerations in the 1978 guidance and in subsequent 
rulemaking actions on SIP submissions relevant to section 128, whether 
as SIP revisions for this specific purpose or as an element of broader 
actions on infrastructure SIP submissions for one or more NAAQS.
    Each state must meet the requirements of section 128 through 
provisions that EPA approves into the state's SIP and are thus made 
federally enforceable. Section 128 explicitly mandates that each SIP 
``shall contain requirements'' that satisfy subsections 128(a)(1) and 
128(a)(2). A mere narrative description of state statutes or rules, or 
of a state's current or past practice in constituting a board or body 
and in disclosing potential conflicts of interest, is not a requirement 
contained in the SIP and does not satisfy the plain text of section 
128.
    Subsection 128(a)(1) applies only to states that have a board or 
body that is composed of multiple individuals and that, among its 
duties, approves permits or enforcement orders under the CAA. It does 
not apply in states that have no such multi-member board or body that 
performs these functions, and where instead a single head of an agency 
or other similar official approves permits or enforcement orders under 
the CAA. This flows from the text of section 128, for two reasons. 
First, as subsection 128(a)(1) refers to a majority of members of the 
board or body in the plural, we think it reasonable to read subsection 
128(a)(1) as not creating any requirements for an individual with sole 
authority for approving permits or enforcement orders under the CAA. 
Second, subsection 128(a)(2) explicitly applies to the head of an 
executive agency with ``similar powers'' to a board or body that 
approves permits or enforcement orders under the CAA, while subsection 
128(a)(1) omits any reference to heads of executive agencies. We infer 
that subsection 128(a)(1) should not apply to heads of executive 
agencies who approve permits or enforcement orders.
    Subsection 128(a)(2) applies to all states, regardless of whether 
the state has a multi-member board or body that approves permits or 
enforcement orders under the CAA. Although the title of section 128 is 
``State boards,'' the language of subsection 128(a)(2) explicitly 
applies where the head of an executive agency, rather than a board or 
body, approves permits or enforcement orders. In instances where the 
head of an executive agency delegates his or her power to approve 
permits or enforcement orders, or where statutory authority to approve 
permits or enforcement orders is nominally vested in another state 
official, the requirement to adequately disclose potential conflicts of 
interest still applies. In other words, EPA interprets section 
128(a)(2) to apply to all states, regardless of whether a state board 
or body approves permits or enforcement orders under the CAA or whether 
a head of a state agency (or his/her delegees) performs these duties. 
Thus, all state SIPs must contain provisions that require adequate 
disclosure of potential conflicts of interest in order to meet the 
requirements of subsection 128(a)(2). The question of which entities or 
parties must be subject to such disclosure requirements must be 
evaluated by states and EPA in light of the specific facts and 
circumstances of each state's regulatory structure.
    A state may satisfy the requirements of section 128 by submitting 
for adoption into the SIP a provision of state law that closely tracks 
or mirrors the language of the applicable provisions of section 128. A 
state may take this approach in two ways. First, the state may adopt 
the language of subsections 128(a)(1) and 128(a)(2) verbatim. Under 
this approach, the state will be able to meet the continuing 
requirements of section 128 without any additional, future SIP 
revisions, even if the state adds or removes authority, either at the 
state level or local level, to individual or to boards or bodies to 
approve permits or enforcement orders under the CAA so long as the 
state continues to meet section 128 requirements. Second, the state may 
modify the language of subsections 128(a)(1) (if applicable) and 
128(a)(2) to name the particular board, body, or individual official 
with approval authority. In this case, if the state subsequently 
modifies that authority, the state may have to submit a corresponding 
SIP revision to meet the continuing requirements of section 128. If the 
state chooses to not mirror the language of section 128, the state may 
adopt state statutes and/or regulations that functionally impose the 
same requirements as those of section 128, including definitions for 
key terms such as those recommended in EPA's 1978 guidance. While any 
of these approaches would meet the minimum requirements of section 128, 
the statute also explicitly authorizes states to adopt more stringent 
requirements, for example to impose additional requirements for recusal 
of board members from decisions, above and beyond the explicit board 
composition requirements. Although such recusal alone does not meet the 
requirements of section 128, states have the authority to require that 
over and above the explicit requirements of section 128. These 
approaches give states flexibility in implementing section 128, while 
still ensuring consistency with the statute.
    EPA has evaluated the June 16, 2014 submission from the State in 
light of the requirements of section 128 and these key considerations. 
South Dakota state law establishes a nine-member Board of Minerals and 
Environment (BME) (SDCL 1-40-25). Under state law, air permits and 
enforcement orders that are issued by the Secretary can be appealed to 
the BME in a contested case hearing (SDCL 34A-1-21 (permits), 34A-1-46, 
34A-1-48 (orders)). In addition, the BME has authority to hold 
contested case hearings on air permits on its own initiative (SDCL 34A-
1-21), and has certain direct enforcement authorities (SDCL 34A-1-40, 
34A-1-44). As EPA has explained in other rulemaking actions, e.g., 78 
FR 32613 (May 31, 2013), we interpret section 128(a)(1) to mean that 
boards that are the potential final decisionmaker via permit and 
enforcement order appeals ``approve'' those permits and enforcement 
orders. For example, by being the final decisionmaker with respect to 
questions such as whether a source receives a permit and the specific 
contents of such a permit, the board is an entity that approves the 
permit within the meaning of 128(a)(1). Thus, the BME is subject to the 
requirements of 128(a)(1). South Dakota's June 16, 2014 submission

[[Page 71052]]

includes a statute, SDCL 1-40-25.1, which provides that the BME must be 
composed in conformance with requirements of section 128 of the CAA for 
all permits and enforcement orders initiated under South Dakota's air 
pollution control authority. Thus, the State has submitted a legally 
binding requirement for inclusion into the SIP that requires the BME to 
be comprised of a majority of members that represent the public 
interest and do not receive a substantial portion of their income from 
parties subject to permit requirements or enforcement orders under the 
CAA. We propose to approve this submission as satisfying the 
requirements of subsection 128(a)(1).
    To meet the requirements of subsection 128(a)(2), the State's June 
16, 2014 submittal includes disclosure requirements applying to members 
of the BME. Members of the BME must disclose ``potential conflicts of 
interest'' as defined in ARSD 74:09:01:21 in a contested case 
proceeding on the record at the initiation of the hearing, or during 
the hearing if they become aware of the existence of a potential 
conflict of interest. In addition, members with a ``conflict of 
interest'' as defined in ARSD 74:09:01:20 must make a statement of 
recusal on the record at the initiation of the hearing and may not 
participate in board discussions or decision-making regarding that 
proceeding. Conflicts of interest are broadly defined in ARSD 
74:09:01:20 as any ``board member who is personally related to a party 
involved in a contested case hearing by two degrees of consanguinity, 
who has direct financial interest in a party involved in a contested 
case hearing through employment or by contract, or whose spouse is 
employed by or directly contracts with a party involved in a contested 
case hearing.'' Furthermore, a potential conflict of interest is 
defined in ARSD 74:09:01:21 as ``an indirect financial interest, or a 
personal relationship or another interest in a party involved in a 
contested case hearing or enforcement hearing that is different from 
that of the general public, that a reasonable person would believe 
might result in bias or prejudgment of a contested case hearing.'' EPA 
thinks these definitions of ``conflict of interest'' and ``potential 
conflict of interest,'' taken in tandem, are sufficiently broad to 
address the types of conflicts of interest that should be disclosed 
under 128(a)(2). While not precisely consistent with the types of 
conflicts addressed in our 1978 guidance for section 128, in some ways 
South Dakota's provisions are in fact broader. In addition, we think 
that disclosure on the record at the start of a hearing is an adequate 
form of disclosure. Such disclosure will provide public access to the 
relevant information about conflicts of interest and memorialize that 
information.
    EPA's review of the State's June 16, 2014 submission has raised one 
issue that warrants further evaluation. Section 128(a)(2) requires that 
a state's SIP provide for adequate disclosure of conflicts of interest 
by ``members of such board or body or the head of an executive agency 
with similar powers.'' The use of the disjunctive ``or'' between 
``board or body'' and ``head of an executive agency'' results in 
ambiguity concerning whether merely one or both of these parties must 
disclose conflicts of interest, and if it is only one of these 
entities, which one? This ambiguity is relevant in the case of the 
submission from the State because under state law included within such 
submission, only the members of the BME are required to disclose 
conflicts of interest, not the head of the executive agency. In order 
to determine whether this is sufficient for purposes of meeting the 
requirements of section 128(a)(2), we have evaluated the statutory 
language more closely.
    First, the term ``or'' can be interpreted as ``one or the other, 
but not necessarily both,'' or it can be interpreted as ``and.'' 
Although the word ``or'' could be read to mean ``and'' in some 
circumstances, we believe that in this instance it is appropriate to 
give the word ``or'' its most straightforward meaning. In isolation, it 
could seem unreasonable to give ``or'' the first meaning, as that would 
allow a state to require adequate disclosure of conflict of interest by 
either the members of the state board or the head of an agency, without 
regard to whether that disclosure requirement applies to the entity 
that makes the final permit or enforcement order decision. To read 
section 128(a)(2) to require disclosure by the entity that is not the 
actual final decisionmaker appears logically inconsistent and contrary 
to the overall purposes of section 128. EPA believes that the purpose 
of section 128(a)(2) is to assure that conflicts of interest are 
disclosed by the entity making the permit or enforcement order 
decision, and requiring this of the ultimate decisionmaker rather than 
other parties that may be involved in the process.
    As discussed above, under South Dakota law all members of the BME 
have to disclose conflicts of interest in specified ways that we 
believe are adequate. Under the structure of the State's program, the 
Secretary makes certain decisions such as the issuance of air permits 
and enforcement orders. However, under state law these permits and 
enforcement orders issued by the Secretary can be appealed to the BME 
in a contested case hearing (SDCL 34A-1-21 (permits), 34A-1-46, 34A-1-
48 (orders)). In addition, the BME has authority to hold contested case 
hearings on air permits on its own initiative (SDCL 34A-1-21), and has 
certain direct enforcement authorities (SDCL 34A-1-40, 34A-1-44). Given 
this division of authority in the State, we believe that the BME is 
functionally the final decisionmaker with respect to permits and 
enforcement orders in South Dakota, and thus the disclosure of 
conflicts of interest by members of the BME is necessary to meet the 
requirements of section 128(a)(2). Naturally, a state may elect to 
require disclosure of conflicts of interest by other state officials 
and employees as well, and this would be fully consistent with the 
explicit reservation of authority for states to impose more stringent 
requirements than those imposed by section 128.
    For the foregoing reasons, the EPA believes that the June 16, 2014 
submission from South Dakota contains provisions that meet the 
requirements of section 128(a)(1) and section 128(a). Accordingly, we 
are proposing approval of that submission and also proposing approval 
of the infrastructure SIP submission as meeting the requirements of 
section 128.
    7. Stationary source monitoring system: Section 110(a)(2)(F) 
requires: (i) The installation, maintenance, and replacement of 
equipment, and the implementation of other necessary steps, by owners 
or operators of stationary sources to monitor emissions from such 
sources, (ii) Periodic reports on the nature and amounts of emissions 
and emissions-related data from such sources, and (iii) Correlation of 
such reports by the state agency with any emission limitations or 
standards established pursuant to the Act, which reports shall be 
available at reasonable times for public inspection.
    The South Dakota statutory provisions listed in the State's 
certifications (SDCL 34A-1-6 and SDCL 34A-1-12) and contained within 
this docket provide authority to establish a program for measurement 
and testing of sources, including requirements for sampling and 
testing. South Dakota's SIP approved continuous emissions monitoring 
system rules (ARSD 74:36:13 and contained within this docket) require 
facilities to monitor and report emission data. ARSD 74:36:04:15(10), 
contents of operating permit, requires operating permits for minor 
sources to

[[Page 71053]]

include monitoring and related record keeping and reporting 
requirements. Reports contain the quantity of hazardous air pollutants, 
in tons, emitted for each 12-month period in the reporting period and 
supporting documentation. Operating permits for minor sources must 
comply with emission limits and other requirements of the Act (ARSD 
74:36:04:04 and ARSD 74:36:04:15). Additionally, ARSD 74:36:05:16.01(9) 
is applicable regarding data from sources with title V permits. South 
Dakota has an approved title V program (61 FR 2720, Jan. 29, 1996) and 
the definition of applicable requirements for a Part 70 source has been 
approved into its SIP at ARSD 74:36:01:05. This re-enforces a 
facility's record keeping and reporting emissions data responsibilities 
under title V permitting, even though the title V program is not 
approved into the SIP.
    Additionally, South Dakota is required to submit emissions data to 
the EPA for purposes of the National Emissions Inventory (NEI). The NEI 
is the EPA's central repository for air emissions data. The EPA 
published the Air Emissions Reporting Rule (AERR) on December 5, 2008, 
which modified the requirements for collecting and reporting air 
emissions data (73 FR 76539). The AERR shortened the time states had to 
report emissions data from 17 to 12 months, giving states one calendar 
year to submit emissions data. All states are required to submit a 
comprehensive emissions inventory every three years and report 
emissions for certain larger sources annually through the EPA's online 
Emissions Inventory System. States report emissions data for the six 
criteria pollutants and their associated precursors--nitrogen oxides, 
sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and 
volatile organic compounds. Many states also voluntarily report 
emissions of hazardous air pollutants. South Dakota made its latest 
update to the NEI on January 9, 2014. EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through the Web site https://www.epa.gov/ttn/chief/eiinformation.html.
    Based on the analysis above, we propose to approve the South Dakota 
SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 
1997 and 2006 p.m.2.5, 2008 Pb, 2008 ozone, and 
2010 NO2 NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) of the CAA requires 
infrastructure SIPs to ``provide for authority comparable to that in 
[CAA section 303] and adequate contingency plans to implement such 
authority.'' Section 303 reads as follows:

Notwithstanding any other provision of this chapter, the 
Administrator, upon receipt of evidence that a pollution source or 
combination of sources (including moving sources) is presenting an 
imminent and substantial endangerment to public health or welfare, 
or the environment, may bring suit on behalf of the United States in 
the appropriate United States district court to immediately restrain 
any person causing or contributing to the alleged pollution to stop 
the emission of air pollutants causing or contributing to such 
pollution or to take such other action as may be necessary. If it is 
not practicable to assure prompt protection of public health or 
welfare or the environment by commencement of such a civil action, 
the Administrator may issue such orders as may be necessary to 
protect public health or welfare or the environment. Prior to taking 
any action under this section, the Administrator shall consult with 
appropriate State and local authorities and attempt to confirm the 
accuracy of the information on which the action proposed to be taken 
is based. Any order issued by the Administrator under this section 
shall be effective upon issuance and shall remain in effect for a 
period of not more than 60 days, unless the Administrator brings an 
action pursuant to the first sentence of this section before the 
expiration of that period. Whenever the Administrator brings such an 
action within the 60-day period, such order shall remain in effect 
for an additional 14 days or for such longer period as may be 
authorized by the court in which such action is brought.

    Thus, the EPA Administrator has authority to bring suit to 
immediately restrain an air pollution source that presents an imminent 
and substantial endangerment to public health or welfare, or the 
environment. If such action may not practicably assure prompt 
protection, then the Administrator has authority to issue temporary 
administrative orders to protect the public health or welfare, or the 
environment, and such orders can be extended if EPA subsequently files 
a civil suit. The 1990 Amendments to the Act modified Section 303.\27\
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    \27\ Section 303 of CAA as modified in 1990 substituted the term 
``public health or welfare, or the environment'' for ``the health of 
persons,'' eliminated the requirement for state or local inaction as 
a prerequisite to EPA initiating action, and lengthened the duration 
of administrative orders from 24 hours to 60 days. The Senate Report 
on the 1990 Amendments explained that:
    These amendments to section 303 of the Act, as well as parallel 
(sic) amendments to section 113, have several purposes. The (sic) 
amendments broaden the Administrator's (sic) authority to issue 
emergency orders to abate threats to welfare and the environment, in 
addition to the authority to respond to threats to ``the health of 
persons.'' In addition, the amendments eliminate the 24- to 48-hour 
time limit on the effectiveness of emergency orders. These changes 
are necessary to enable the Administrator to address air pollution 
emergencies in an adequate manner, and to conform the 
Administrator's emergency authority under the Act to emergency 
authorities under other environmental laws. See, TSCA section 208, 
CERCLA section 106, RCRA section 7003, and CWA section 504. 
Similarly, the deletion of the requirement that the Administrator 
may not bring suit unless State or local authorities have failed to 
act conforms the Act to other environmental laws.
    Broadening section 301 to include harm to the environment is 
important to enable EPA to address emergency threats to ecosystems 
in instances where there is no readily demonstrable immediate threat 
to human health. For example, toxic emissions might be blowing 
downwind from a facility into an undeveloped natural area and 
threatening to impair that area's ecosystem. This amendment will 
allow EPA to order the plant to take necessary steps to eliminate 
the threat to flora and fauna. Deleting the unrealistically short 
time limits on the duration of orders is necessary to ensure that 
these orders are a viable enforcement tool. In order to protect 
State interests and to prevent duplication of effort, this section 
requires that the Administrator consult with the State and local 
authorities before taking any action. The enforcement provision, 
section 303(b), has been deleted as unnecessary because emergency 
orders have been made enforceable under section 113.
    S. Rep. No. 101-228, 101 Cong., 1st Sess. 370. EPA's 1999 
guidance on section 303 contains additional information regarding 
the legislative history of this section. While the guidance 
indicates it ``is intended to be used by EPA as internal guidance 
only and does not establish any substantive or procedural rights'' 
we include the guidance in the proposed docket for this action as 
background information. ``Transmittal Memo and Guidance Document on 
Section 303 of the Clean Air Act,'' Eric. V. Schaeffer, Director, 
Office of Regulatory Enforcement, EPA Office of Enforcement and 
Compliance Assurance (April 1, 1999).
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    EPA's 2013 Infrastructure SIP Guidance (for the 2008 ozone, 2010 
NO2, 2010 sulfur dioxide, and all future NAAQS), represents 
EPA's most recent guidance, which we've cited earlier in this notice 
given its broad applicability, states that the best practice for states 
is to submit, for inclusion in the SIP, the statutory or regulatory 
provisions that provide authority comparable to CAA section 303 or to 
cite and include a copy of such provisions, without including them in 
the SIP, with a narrative of how they meet the requirements of section 
110(a)(2)(G).\28\
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    \28\ 2013 Infrastructure SIP Guidance, pp. 47-50.
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    We propose to find that South Dakota's Infrastructure SIP 
Submittals and certain State statutes provide for authority for the 
State comparable to that granted to the EPA Administrator to act in the 
face of an imminent and substantial endangerment to public's health or 
welfare, or the environment.
    South Dakota's SIP submittals with regard to the section 
110(a)(2)(G) emergency order requirements explain that:

SDCL section 34A-1-45 (Emergency order for immediate reduction or 
discontinuance of emissions) is comparable to Section 303 of the 
Clean Air Act and provides that ``if the Secretary of the Department 
of Environment and Natural Resources finds that any person is 
causing or contributing to air pollution and that such pollution 
creates an emergency by

[[Page 71054]]

causing imminent danger to human health or safety and requires 
immediate action to protect human health or safety, the Secretary 
shall order such person or persons to reduce or discontinue 
immediately the emission of air contaminants.'' \29\
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    \29\ We note that the South Dakota Legislature's compilation of 
statutes indicates that SDCL section 34A-1-45 reads slightly 
differently from the language that appears in the infrastructure SIP 
submission, and additionally, does not contain the last sentence of 
the paragraph. This proposed action considers the statute as it 
appears on the State's compilation, which reads as follows: ``34A-1-
45. Emergency order for immediate reduction or discontinuance of 
emissions. If the secretary finds that any person is causing or 
contributing to air pollution and that such pollution creates an 
emergency by causing imminent danger to human health or safety and 
requires immediate action to protect human health or safety, the 
secretary shall order the person to reduce or discontinue 
immediately the emission of air contaminants. The emergency order is 
effective immediately on service upon the person responsible for the 
emission, and any person to whom such an order is directed shall 
comply with the order immediately.'' (Available online at: https://legis.sd.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute& Statute=34A-1-45, accessed October 
8, 2014).

    Accordingly, we have reviewed South Dakota's statutory provisions 
for evidence that the State has authorities comparable to those in 
section 303. Our review included the provision discussed above, as well 
as provisions in the current SDCL.\30\ None of these state laws have 
been submitted for incorporation into the South Dakota SIP.
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    \30\ October 29, 2014 conference call with Brian Gustafson, 
Kyrik Rombough, Steven Blair, and Roxanne Giedd from the State of 
South Dakota and Carl Daly, Monica Morales, Sara Laumann, and Abby 
Fulton from EPA Region 8 regarding feedback on EPA's interpretation 
of South Dakota's authority comparable to section 303. The State 
indicated they generally agreed with our analysis.
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    With regard to the authority to bring suit, SDCL 34A-10-1 extends 
the right to the ``attorney general, any political subdivision of the 
state, any instrumentality or agency of the state or of a political 
subdivision thereof, any person partnership, limited liability company, 
corporation, association, organization, or other legal entity'' to 
``maintain an action'' for ``declaratory and equitable relief . . . 
against any person . . . for the protection of the air, water, and 
other natural resources and the public trust therein from pollution, 
impairment, or destruction.'' In addition, SDCL 34A-10-2 states that 
``[i]f administrative, licensing, or other proceedings, and judicial 
review thereof are available by law, the agency may permit the attorney 
general, any political subdivision of the state, any instrumentality or 
agency of the state or of a political subdivision thereof, any person, 
partnership, limited liability company, corporation, association, 
organization, or other legal entity to intervene'' in that proceeding 
involving ``conduct which has the effect of polluting, impairing, or 
destroying the air, water, or other natural resources or the public 
thrust therein.'' SDCL 21-10-1 through 21-10-9 also provide the State 
with the authority regarding nuisances, including the authority to seek 
specific remedies against nuisances (SDCL 21-10-5). The definitions of 
acts and omissions constituting nuisances provide the State with broad 
authority to bring suit against persons causing pollution and injury or 
endangering the health or safety of others (SDCL 21-10-1).
    By using terms such as ``pollution, impairment, or destruction,'' 
and ``protection of the air, water, and other natural resources,'' 
these statutes (SDCL 34A-10-1, 34A-10-2) provide stated entities with 
broad authority to bring suit against persons causing pollution of 
varying degrees of urgency, including pollution that presents an 
imminent and substantial endangerment.\31\ These provisions provide 
arguably broader authority than what CAA section 303 provides to EPA, 
as they do not by their terms first require the stated entities to 
assert that the would-be enjoined pollution constitutes imminent and 
substantial endangerment. We propose to find that these provisions, 
while not specifically mentioning ``public health,'' ``welfare,'' or 
the ``environment,'' are nonetheless comparable to section 303 and 
broadly empower the State to address through civil action threats to 
public health (e.g., from pollution), welfare (e.g., from nuisances, 
and for protection of the air, water, and other natural resources), and 
the environment (e.g., protection of natural resources from pollution, 
impairment, or destruction) from any imminent and substantial 
endangerment.
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    \31\ Notably, South Dakota's definition of ``air pollutant,'' 
which is a term that triggers the authority contained in several of 
the applicable provisions, contains a threshold injury requirement 
relating to injury to human health, welfare or the environment. 
Under South Dakota law, ``air pollutant'' is defined as, ``the 
presence in the outdoor atmosphere of one or more contaminants in 
such quantity and duration as is or tend to be injurious to human 
health or welfare, animals or plant life, or property or would 
interfere with the enjoyment of life or property.'' SDCL 34A-1-2(2).
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    South Dakota's statutes also provide DENR's Secretary with the 
authority to issue administrative orders and emergency rules, and 
suspend state agency rules, to protect the public health, welfare, and 
the environment under certain circumstances. SDCL 34A-1-45, as cited in 
South Dakota's SIP submittals, authorizes that if the Secretary of the 
DENR ``finds that any person is causing or contributing to air 
pollution and that such pollution creates an emergency by causing 
imminent danger to human health or safety and requires immediate action 
to protect human health or safety,'' ``the secretary shall order the 
person to reduce or discontinue immediately the emission of air 
contaminants.'' The emergency order is effective immediately on service 
upon the person responsible for the emission, and any person to whom 
such an order is directed shall comply with the order immediately. SDCL 
34A-10-2.5 provides authority for the DENR to apply to the court for an 
injunction, including temporary injunctions, against any person who 
fails to comply with such orders.
    Additionally, SDCL 1-26-5(3) authorizes any agency to adopt or 
amend an emergency rule for reasons including ``imminent peril to the 
public health, safety, or welfare . . . or because of the occurrence of 
an unforeseen event at a time when the adoption of a rule in response 
to such event by the emergency procedure is required to secure or 
protect the best interests of the state or its residents.'' Subject to 
applicable constitutional or statutory provisions, emergency rules are 
``effective immediately upon filing with the secretary of state'' or at 
another stated date; and ``[n]o emergency rule may remain in effect for 
a period of no longer than ninety days'' (SDCL 1-26-8). South Dakota's 
statutes also require that certain procedures be followed prior to 
adoption of the emergency rule. ``[A]n agency shall publish a notice of 
intent to adopt an emergency rule in the manner prescribed in section 
1-26-4.1'' (SDCL 1-26-5). SDCL 1-26-4.1 provides that ``the notice of 
intent to adopt an emergency rule shall be mailed to each person who 
has made a timely request of the agency for advance notice of its rule-
making proceedings.'' SDCL requires that the agency ``serve on the 
person specified in subdivision 1-26-4(1),\32\ each member of the 
Interim Rules Committee and the director'' the information specified in 
SDCL 1-26-5 and follow the notification and mailing requirements in 
SDCL 1-25-4.1. Finally, SDCL 1-26-5(3) requires that notice of proposed 
emergency rule served on the specified individuals shall include ``[a] 
statement, with the reasons, that the emergency procedure is necessary: 
because of imminent peril to

[[Page 71055]]

the public health, safety, or welfare; . . . or because of the 
occurrence of an unforeseen event at a time when the adoption of a rule 
in response to such event by the emergency procedure is required to 
secure or protect the best interests of the state or its residents.'' 
While these provisions do not directly provide authority to issue 
administrative orders to prevent air pollution that endangers the 
environment and contain certain notification procedures not found in 
section 303, they do provide regulatory authority for state agencies to 
develop emergency rules for the protection of public health and 
welfare, and welfare is commonly understood to include the elements of 
what is covered by the term ``environment'' (see, e.g., CAA section 
302(h), broadly defining ``effects on welfare'').
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    \32\ SDCL 1-26-4(1) requires that the agency ``shall serve a 
copy of a proposed rule and any publication described in section 1-
26-6.6 upon the departmental secretary, bureau commissioner, public 
utilities commissioner, or constitutional officer to which it is 
attached for the secretary's, commissioner's, or officer's written 
approval to proceed.''
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    We also note that another emergency management option under South 
Dakota statutes involves the Governor's authorities. For example, 
Chapter 34-48A, which covers Emergency Management, includes authority 
for the Governor to issue orders in emergency situations.\33\ 
Additionally, in the event of an ``emergency'' \34\ that is beyond 
local government capability, SDCL 34-48A-5(4) gives the Governor 
authority to suspend rules under certain circumstances.\35\
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    \33\ SDCL 34-48A-9. ``Power to make orders. In performing his 
duties under this chapter, and to effect its policy and purpose, the 
Governor is further authorized and empowered to make, amend, and 
rescind the necessary orders to carry out the provisions of this 
chapter within the limits of the authority conferred upon him 
herein, with due consideration of the plans of the federal 
government.''
    \34\ SDCL 34-48A-1(3) defines emergency as ``any natural, 
nuclear, man-made, war- related, or other catastrophe producing 
phenomena in any part of the state which in the determination of the 
Governor requires the commitment of less than all available state 
resources to supplement local efforts of political subdivisions of 
the state to save lives and to protect property, public health, and 
safety or to avert or lessen the threat of a disaster.''
    \35\ SDCL 34-48A-5(4) gives the Governor the authority to 
``suspend the provisions of any rules of any state agency if strict 
compliance with the provisions of the rule would in any way prevent, 
hinder, or delay necessary action in managing a disaster . . . or 
emergency, including . . . air contamination . . . which is 
determined by the Governor to require state or state and federal 
assistance or actions to supplement the recovery efforts of local 
government in alleviating the damage, loss, hardship, or suffering 
caused thereby.'' The rules suspended by the Governor remain 
suspended for six months and may be restored for one or more 
successive six-month periods if the Governor declares the conditions 
persist (SDCL 34-48A-5).
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    While no single South Dakota statute mirrors the authorities of CAA 
section 303, we propose to find that the combination of SDCL provisions 
discussed above provide for authority comparable to section 303 to 
immediately bring suit to restrain, issue emergency executive orders 
against, and use special rule adoption and suspension procedures for 
applicable emergencies to take prompt administrative action against, 
any person causing or contributing to air pollution that presents an 
imminent and substantial endangerment to public health or welfare, or 
the environment. Consistent with EPA's 2013 Infrastructure SIP 
Guidance, the narratives provided in South Dakota's SIP submittals 
about the State's authorities applying to emergency episodes (as 
discussed above), plus additional South Dakota statutes that we have 
considered, we propose that they are sufficient to meet the authority 
requirement of CAA section 110(a)(2)(G).
    States must also have adequate contingency plans adopted into their 
SIP to implement the air agency's emergency episode authority (as 
discussed above). This can be met by submitting a plan that meets the 
applicable requirements of 40 CFR part 51, subpart H for the relevant 
NAAQS if the NAAQS is covered by those regulations. Rules contained in 
ARSD and South Dakota's SIP adopt by reference the criteria in 40 CFR 
51.151 as the air quality episode plan to address activities causing 
imminent and substantial endangerment to public health, including a 
contingency plan to implement the emergency episode provisions of the 
SIP. As of the date of South Dakota's submittal, EPA has not 
established priority classification for a significant harm level for 
PM2.5. As DENR explains in its SIP submittals, once EPA 
promulgates such rules, DENR will adopt them into ARSD 74:36:03 (Air 
quality episodes).
    Subpart H of 40 CFR part 51 requires states to classify regions and 
to develop contingency plans (also known as emergency episode plans) 
after ambient concentrations of certain criteria pollutants in an area 
have exceeded specified levels. For example, if ambient concentrations 
of nitrogen dioxide in an area have exceeded 0.06 ppm (annual 
arithmetic mean), then the area is classified as a Priority I region, 
and the state must develop a contingency plan that meets the 
requirements of sections 51.151 and 51.152. However, Subpart H does not 
currently address requirements for the 24-hour PM2.5 
standard.
    In 2009, EPA issued a guidance memorandum that, among other things, 
recommended an approach for states to address the contingency plan 
requirements of 110(a)(2)(G) with respect to the 2006 PM2.5 
NAAQS.\36\ The guidance, in Attachment A, suggested that states develop 
a contingency plan if, based on the most recent three calendar years of 
data, an area within the state had monitored and recorded a 24-hour 
PM2.5 level greater than 140.4 [mu]g/m\3\. For states that 
were to develop a contingency plan, the guidance recommended states set 
priority and emergency levels consistent with requirements of 40 CFR 
51.150 through 51.153. EPA notes that section 51.153 requires periodic 
reevaluation of priority classifications based on the three most recent 
years of air quality data.
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    \36\ Memorandum from William T. Harnett, Director, Air Quality 
Policy Division, to Regional Air Division Directors, Guidance on SIP 
Elements Required under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) Standards (NAAQS), at p. 6-7 
(Sep. 25, 2009).
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    South Dakota has recorded no levels of ambient air concentrations 
in the three most recent complete calendar years--2011, 2012, and 
2013--that exceed the 2009 guidance memorandum \37\ recommended levels 
for states to develop a contingency plan for PM2.5. However, 
on September 4, 2009 a continuous PM2.5 air monitor operated 
by the State of South Dakota in Wind Cave National Park registered a 
24-hour level of 303.6 [mu]g/m\3\. The monitor in question was a 
special purpose Federal Equivalent Method monitor collocated with a 
Federal Reference Method (FRM) State and Local Air Monitoring Stations 
(SLAMS) monitor. The SLAMS FRM was designated as the primary monitor at 
the site, and recorded 120.5 [mu]g/m\3\ as the official regulatory 
value for the monitoring station that day. On the day the secondary 
monitor recorded a value of 303.6 [mu]g/m\3\, the National Park Service 
conducted a prescribed burn in the Wind Cave National Park. A 
discussion including details of the event as well as monitoring data 
are contained within a memo to this docket. Given the unique 
circumstances of this event and taking into account that the official 
regulatory value fell below the recommended level for developing a 
contingency plan, and that the last three years of data also fall below 
the recommended level, EPA believes it is appropriate to interpret 
110(a)(2)(G) as not requiring development of a contingency plan. 
However, this does not imply that other, future

[[Page 71056]]

circumstances in the state cannot trigger this requirement.
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    \37\ Memorandum from William T. Harnett, Director, Air Quality 
Policy Division, to Regional Air Division Directors, Guidance on SIP 
Elements Required under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) Standards (NAAQS), at p. 6-7 
(Sep. 25, 2009).
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    Revisions to the South Dakota Air Quality Episodes rules ARSD 
74:36:03:01 ``Air pollution emergency episode'' and ARSD 74:36:03:02 
``Episode emergency contingency plan'' were most recently approved on 
June 27, 2014 (79 FR 36425). We find that South Dakota's air pollution 
emergency rules include PM2.5, ozone, and NO2; 
establish stages of episode criteria; provide for public announcement 
whenever any episode stage has been determined to exist; and specify 
emission control actions to be taken at each episode stage, consistent 
with the EPA emergency episode SIP requirements set forth at 40 CFR 
part 51 subpart H (prevention of air pollution emergency episode) for 
particulate matter, ozone, and NO2.
    As noted in the October 14, 2011 guidance,\38\ based on EPA's 
experience to date with the Pb NAAQS and designating Pb nonattainment 
areas, EPA expects that an emergency episode associated with Pb 
emissions would be unlikely and, if it were to occur, would be the 
result of a malfunction or other emergency situation at a relatively 
large source of Pb. Accordingly, EPA believes the central components of 
a contingency plan would be to reduce emissions from the source at 
issue and communicate with the public as needed. We note that 40 CFR 
part 51, subpart H (51.150-51.152) and 40 CFR part 51, Appendix L do 
not apply to Pb.
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    \38\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements Required Under Sections 110(a)(1) and 110(a)(2) for 
the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS).'' 
Steve Page, OAQPS Director, October 14, 2011, at p 13.
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    Based on the above analysis, we propose approval of South Dakota's 
SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 
1997 and 2006 PM2.5, 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs 
provide for revision of such plan: (i) From time to time as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard, and (ii), 
except as provided in paragraph (3)(C), whenever the Administrator 
finds on the basis of information available to the Administrator that 
the SIP is substantially inadequate to attain the NAAQS which it 
implements or to otherwise comply with any additional requirements 
under this [Act].
    South Dakota's statutory provision at SDCL 34A-1-6 gives DENR 
sufficient authority to meet the requirements of 110(a)(2)(H). 
Therefore, we propose to approve South Dakota's SIP as meeting the 
requirements of CAA section 110(a)(2)(H).
    10. Consultation with government officials, public notification, 
PSD and visibility protection: Section 110(a)(2)(J) requires that each 
SIP ``meet the applicable requirements of section 121 of this title 
(relating to consultation), section 127 of this title (relating to 
public notification), and part C of this subchapter (relating to PSD of 
air quality and visibility protection).''
    The State has demonstrated it has the authority and rules in place 
through its certifications (contained within this docket) to provide a 
process of consultation with general purpose local governments, 
designated organizations of elected officials of local governments and 
any Federal Land Manager having authority over federal land to which 
the SIP applies, consistent with the requirements of CAA section 121. 
Furthermore, EPA previously addressed the requirements of CAA section 
127 for the South Dakota SIP and determined public notification 
requirements are appropriate (45 FR 58528, Sept. 4, 1980).
    As discussed above, the State has a SIP-approved PSD program that 
incorporates by reference the federal program at 40 CFR 52.21. EPA has 
further evaluated South Dakota's SIP approved PSD program in this 
proposed action under element (C) and determined the State has 
satisfied the requirements of element 110(a)(2)(C), as noted above. 
Therefore, the State has also satisfied the requirements of element 
110(a)(2)(J).
    Finally, with regard to the applicable requirements for visibility 
protection, EPA recognizes states are subject to visibility and 
regional haze program requirements under part C of the Act. In the 
event of the establishment of a new NAAQS, however, the visibility and 
regional haze program requirements under part C do not change. Thus, we 
find that there are no applicable visibility requirements under section 
110(a)(2)(J) when a new NAAQS becomes effective.
    Based on the above analysis, we propose to approve the South Dakota 
SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 
1997 and 2006 PM2.5, 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS.
    11. Air quality and modeling/data: Section 110(a)(2)(K) requires 
each SIP provide for: (i) The performance of such air quality modeling 
as the Administrator may prescribe for the purpose of predicting the 
effect on ambient air quality of any emissions of any air pollutant for 
which the Administrator has established a NAAQS, and (ii) the 
submission, upon request, of data related to such air quality modeling 
to the Administrator.
    South Dakota's PSD program incorporates by reference the federal 
program at 40 CFR 52.21, including the provision at 40 CFR 52.21(l)(1) 
requiring that estimates of ambient air concentrations be based on 
applicable air quality models specified in Appendix W of 40 CFR part 
51, and the provision at 40 CFR 52.21(l)(2) requiring that modification 
or substitution of a model specified in Appendix W must be approved by 
the Administrator.
    Additionally, SDLC section 34A-1-1, 34A-1-10, and 1-40-31 provide 
the Department with the authority to advise, consult, and cooperate 
with EPA and provide EPA with public records, such as air quality 
modeling. As a result, the SIP provides for such air quality modeling 
as the Administrator has prescribed. Therefore, we propose to approve 
the South Dakota SIP as meeting the CAA section 110(a)(2)(K) for the 
1997 and 2006 PM2.5, 2008 Pb, 2008 ozone, and 2010 
NO2 NAAQS.
    12. Permitting fees: Section 110(a)(2)(L) requires SIPs to: Require 
the owner or operator of each major stationary source to pay to the 
permitting authority, as a condition of any permit required under this 
act, a fee sufficient to cover; (i) the reasonable costs of reviewing 
and acting upon any application for such a permit; and (ii) if the 
owner or operator receives a permit for such source, the reasonable 
costs of implementing and enforcing the terms and conditions of any 
such permit (not including any court costs or other costs associated 
with any enforcement action), until such fee requirement is superseded 
with respect to such sources by the Administrator's approval of a fee 
program under title V.
    The funding sources used for the PSD permit reviews conducted by 
South Dakota derive from EPA grant and matching State general 
funds.\39\ There are no nonattainment areas in the State. In light of 
the State's experience that funding from grants and general funds has 
been sufficient to operate a successful PSD program, it is reasonable 
that the PSD permit applicants are not charged any permit-specific 
fees.
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    \39\ See Email from Brian Gustafson ``Question Regarding 
Permitting Fees for SD iSIP Action'' July 24, 2014, available within 
docket.
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    We also note that all the State SIPs we are proposing to approve in 
this action

[[Page 71057]]

cite the regulation that provides for collection of permitting fees 
under the State's EPA-approved title V permit program (ARSD 74:37:01), 
which we approved and became effective February 28, 1996 (61 FR 2720, 
Jan. 29, 1996).
    Therefore, based on the State's experience in relying on the grant 
and general funds for PSD permits, and the use of title V fees to 
implement and enforce PSD permits once they are incorporated into title 
V permits, we propose to approve the submissions as supplemented by the 
State for the 1997 and 2006 p.m.2.5, 2008 Pb, 2008 ozone, 
and 2010 NO2 NAAQS.
    13. Consultation/participation by affected local entities: Section 
110(a)(2)(M) requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP.
    The statutory provisions cited in South Dakota's SIP submittals 
(contained within this docket) meet the requirements of CAA section 
110(a)(2)(M), so we propose to approve South Dakota's SIP as meeting 
these requirements for the 1997 and 2006 PM2.5, 2008 Pb, 
2008 ozone, and 2010 NO2 NAAQS.

VII. What action is EPA taking?

    In this action, EPA is proposing to approve the following 
infrastructure elements for the 1997 and 2006 PM2.5, 2008 
Pb, 2008 ozone, and 2010 NO2 NAAQS: (A), (B), (C) with 
respect to minor NSR and PSD requirements, (D)(i)(II) prongs 3 and 4, 
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). EPA is also 
proposing to approve revisions to ARSD 74:36:09 submitted on July 29, 
2013, which incorporate by reference the requirements of the 2010 
PM2.5 Increment Rule. Specifically, we propose to approve 
the adoption of the text of 40 CFR 52.21, paragraphs 
(b)(14)(i),(ii),(iii), (b)(15)(i),(ii), and paragraph (c) as they 
existed on July 1, 2012 by proposing to approve revisions to: ARSD 
74:34:09:02 (Prevention of significant deterioration) and 74:36:09:03 
(Public participation). EPA is also proposing to approve revisions to 
ARSD 74:09 and SDCL 1-40-25.1 submitted on June 11, 2014 to satisfy 
requirements of element (E)(ii), state boards. Finally, EPA proposes 
approval of D(i)(I) prongs 1 and 2 for the 2006 PM2.5, 2008 
Pb, and 2010 NO2 NAAQS. EPA will act separately on 
infrastructure element (D)(i)(I), interstate transport for the 2008 
ozone NAAQS.

VIII. Statutory and Executive Orders Review

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves some state law as meeting federal 
requirements and disapproves other state law because it does not meet 
federal requirements; this proposed action does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, Oct. 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, Aug. 10, 1999); is not an 
economically significant regulatory action based on health or safety 
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and,
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, Feb. 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, Nov. 9, 2000), because 
the SIP is not approved to apply in Indian country located in the 
state, and EPA notes that it will not impose substantial direct costs 
on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Greenhouse gases, 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: November 19, 2014.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2014-28301 Filed 11-28-14; 8:45 am]
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