Approval and Promulgation of Air Quality Implementation Plans; South Dakota; Revisions to the Permitting Rules, 52388-52393 [2016-18759]
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facilities within the monitoring universe
classified such that they are required to
report annual compliance data.
(g) A timetable specifically detailing
when and in which facilities
compliance monitoring will occur;
(h) Description of procedures for
receiving, investigating, and reporting
complaints of instances of noncompliance with the DSO, jail removal,
and separation requirements; and
(i) Description of any barriers faced in
implementing and maintaining a system
adequate to monitor the level of
compliance with the DSO, jail removal,
and separation requirements, including
(as applicable) an indication of how it
plans to overcome such barriers.
§ 31.8
Core requirement reporting.
(a) Time period covered. The
compliance monitoring report shall
contain data for one full federal fiscal
year (i.e., October 1st through the
following September 30th).
(b) Deadline for submitting
compliance data. The compliance
monitoring report shall be submitted no
later than January 31st immediately
following the fiscal year covered by the
data contained in the report.
(c) Certification. The information
contained in a state’s compliance
monitoring report, shall be certified in
writing by a designated state official
authorized to make such certification,
which certification shall specify that the
information in the report is correct and
complete to the best of the official’s
knowledge and that the official
understands that a false or incomplete
submission may be grounds for
prosecution, including under 18 U.S.C.
1001 and 1621.
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§ 31.9 Core requirement compliance
determinations.
(a) Compliance with the DSO
requirement. A state is in compliance
with the DSO requirement for a federal
fiscal year when it has a rate of
compliance at or below 0.24 per 100,000
juvenile population in that year.
(b) Compliance with the separation
requirement. A state is in compliance
with the separation requirement for a
federal fiscal year when it has zero
instances of non-compliance in that
year.
(c) Compliance with the jail removal
requirement. A state is in compliance
with the jail removal requirement for a
federal fiscal year when it has a rate of
compliance at or below 0.12 per 100,000
juvenile population in that year.
(d) Compliance with the DMC
requirement. A state is in compliance
with the DMC requirement when it
includes a DMC report within its State
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Plan, which report contains the
following:
(1) A detailed description of adequate
progress in implementing the following
5-phase DMC reduction model:
(i) Identification of the extent to
which DMC exists, via the Relative Rate
Index (a measurement tool to describe
the extent to which minority youth are
overrepresented at various stages of the
juvenile justice system), which must be
done both statewide and for at least
three local jurisdictions (approved by
the Administrator) with the highest
minority concentration or with focusedDMC-reduction efforts, and at the
following contact points in the juvenile
justice system: Arrest, diversion, referral
to juvenile court, charges filed,
placement in secure correctional
facilities, placement in secure detention
facilities, adjudication as delinquent,
community supervision, and transfer to
adult court;
(ii) Assessment and comprehensive
analysis (which must be completed
within 12 months of identification of
the existence of DMC, or such longer
period as may be approved by the
Administrator) to determine the
significant factors contributing to DMC
identified pursuant to paragraph
(d)(1)(i) of this section, at each contact
point where it exists. Such assessment
and comprehensive analysis shall be
conducted—
(A) When DMC is found to exist
within a jurisdiction at any of the
contact points listed in paragraph
(d)(1)(i) of this section, and not less than
once in every five years thereafter;
(B) When significant changes in the
Relative Rate Index are identified during
the state’s monitoring of DMC trends; or
(C) When significant changes in
juvenile justice system laws,
procedures, and policies result in
statistically-significant increased rates
of DMC;
(iii) Intervention, through
delinquency prevention and systemsimprovement strategies to reduce DMC
that have been assessed under
paragraph (d)(1)(ii), based on the results
of the identification data and
assessment findings, which strategies
target communities where there is the
greatest magnitude of DMC throughout
the juvenile justice system and include,
at a minimum, specific goals,
measurable objectives, and selected
performance measures;
(iv) Evaluation (within three to five
years of the DMC-related intervention
under paragraph (d)(1)(iii)) of the
effectiveness of the delinquency
prevention and systems-improvement
strategies, using appropriate formal,
methodological evaluative instruments,
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including the appropriate Performance
Measures for the Data Collection and
Technical Assistance Tool (DCTAT),
located on OJJDP’s Web site, which will
assist in gauging short and long-term
progress toward reducing DMC; and
(v) Monitoring to track changes in
DMC statewide and in the local
jurisdictions under paragraph (d)(1)(i) of
this section, in order to identify
emerging issues affecting DMC and to
determine whether there has been
progress towards DMC reduction where
it has been found to exist, to include the
making of comparisons between current
data and data obtained in earlier years
and (when quantifiable data are
unavailable to determine whether or to
what extent the Relative Rate Index has
changed) the provision of a timetable for
implementing a data collection system
to track progress towards reduction of
such DMC; and
(2) Where DMC has been found to
exist—
(i) A description of the prior-year’s
progress toward reducing DMC; and
(ii) An adequate DMC-reduction
implementation plan (including a
budget detailing financial and/or other
resources dedicated to reducing DMC).
Dated: July 27, 2016.
Karol V. Mason,
Assistant Attorney General.
[FR Doc. 2016–18371 Filed 8–5–16; 8:45 am]
BILLING CODE 4410–18–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2016–0424; FRL–9950–38–
Region 8]
Approval and Promulgation of Air
Quality Implementation Plans; South
Dakota; Revisions to the Permitting
Rules
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
State Implementation Plan (SIP)
revisions submitted by the State of
South Dakota on October 23, 2015 and
July 29, 2013 related to South Dakota’s
Air Pollution Control Program. The
October 23, 2015 submittal revises
certain definitions and dates of
incorporation by reference and contains
new, amended and renumbered rules. In
this rulemaking, we are taking final
action on all portions of the October 23,
2015 submittal, except for those
SUMMARY:
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portions of the submittal which do not
belong in the SIP. This action is being
taken under section 110 of the Clean Air
Act (CAA).
DATES: Written comments must be
received on or before September 7,
2016.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2016–0424, at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.,) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Kevin Leone, Air Program, U.S.
Environmental Protection Agency
(EPA), Region 8, Mail Code 8P–AR,
1595 Wynkoop Street, Denver, Colorado
80202–1129, (303) 312–6227,
leone.kevin@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
What should I consider as I prepare
my comments for the EPA?
1. Submitting Confidential Business
Information (CBI). Do not submit CBI to
the 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 the 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
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will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
2. Tips for preparing your comments.
When submitting comments, remember
to:
• Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register, date, and page number);
• Follow directions and organize your
comments;
• Explain why you agree or disagree;
• Suggest alternatives and substitute
language for your requested changes;
• Describe any assumptions and
provide any technical information and/
or data that you used;
• If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced;
• Provide specific examples to
illustrate your concerns, and suggest
alternatives;
• Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats; and
• Make sure to submit your
comments by the comment period
deadline identified.
II. Background
52389
involve the following: 74:36:01:01(8),
74:36:01:01(29), 74:36:01:01(67),
74:36:01:01(73), 74:36:01:05, and
74:36:01:20. We will be acting on the
revision to 74:36:01:01(73) in a separate
rulemaking. This is addressed in more
detail under section III of this
rulemaking.
South Dakota’s October 23, 2015
submittal also added the phrase
‘‘insignificant increase in allowable
emissions’’ to the definition of ‘‘permit
revision’’ in section 74:36:01(50) and
revised the definition of ‘‘modification’’
in section 74:36:01:10 to allow an
exception for insignificant increases in
allowable emissions. This proposed
rulemaking also adds a new definition
for ‘‘Insignificant increases in allowable
emissions’’ in section 74:36:01:10.01.
This addition to the definition for
‘‘insignificant increase in allowable
emissions’’ is to account for all of the
new federal standards covering small
sources of air pollutants, to streamline
the permitting actions for these small
sources, and to be consistent with
federal permitting requirements. This
definition was derived from Table I in
40 CFR 49.153 and is addressed in more
detail under section III of this
rulemaking.
July 29, 2013 Submittal
On July 29, 2013, the State of South
Dakota submitted a SIP revision
containing amendments 74:36:10:06
(Causing or contributing to a violation of
any national ambient air quality
standard). This revision added
significant impact levels (SILs) for
particulate matter less than 2.5 microns
(PM2.5.) as required in the EPA’s October
20, 2010, PM2.5 ‘‘Increment Rule.’’
However, on January 22, 2013, the
United States Court of Appeals for the
District of Columbia Circuit vacated the
SILs for PM2.5. On December 9, 2013, the
EPA issued a final rule that removes the
PM2.5 SILs from the EPA’s PSD
regulations (78 FR 73698). As a result of
this court decision and the EPA’s
rulemaking, in the October 23, 2015,
submittal, South Dakota removed the
SILs for PM2.5 from section 74:36:10:06.
This action effectively supersedes the
July 29, 2013 action for 74:36:10:06.
B. Chapter 74:36:02—Ambient Air
Quality
Chapter 74:36:02 established air
quality goals and ambient air quality
standards for South Dakota. The
sections in Chapter 74:36:02 that are
being updated to the version of the
federal reference as of July 1, 2014,
involve the following: 74:36:02:02,
74:36:02:03, 74:36:02:04 and
74:36:02:05.
October 23, 2015 Submittal
D. Chapter 74:36:04—Operating Sources
for Minor Sources
Chapter 74:36:04 is South Dakota’s
minor source air quality operating
permit program. The section in Chapter
74:36:04 that is being updated to the
version of the federal reference as of
July 1, 2014, involve the following:
74:36:04:04.
Section 74:36:04:03 lists emission
units that are exempt from inclusion in
A. Chapter 74:36:01—Definitions
Chapter 74:36:01 defines the terms
used throughout Article 74:36—Air
Pollution Control Program. There are six
definitions in Chapter 74:36:01 that
reference federal regulations. The
sections in Chapter 74:36:01 that are
being updated to the version of the
federal reference as of July 1, 2014,
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C. Chapter 74:36:03—Air Quality
Episodes
Chapter 74:36:03 identifies the
contingency plan the South Dakota
Department of Environment and Natural
Resources (DENR) will follow during an
air pollution emergency episode. The
sections in Chapter 74:36:03 that are
being updated to the version of the
federal reference as of July 1, 2014,
involve the following: 74:36:03:01 and
74:36:03:02.
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a minor air quality operating permit.
Emission units may not be exempted if
federally enforceable limits have been
included in the permit to avoid other
permits. The revisions are being
proposed to clarify that any unit that is
subject to a federal rule in Chapter
74:36:07—New Source Performance
Standards and Chapter 74:36:08—
National Emission Standards for
Hazardous Air Pollutants may not be
exempted from inclusion in the minor
air quality operating permit.
A definition for ‘‘insignificant
increase in allowable emissions’’ is
being added to Chapter 74:36:01 to
account for all of the new federal
standards covering small sources of air
pollutants, to stream line the permitting
actions for these small sources, and to
be consistent with the federal permitting
requirements. As such, the revisions are
proposing to add section 74:36:04:21.01
which will identify procedures for
processing an application for activities
that are considered an ‘‘insignificant
increase in allowable emissions.’’ This
process will allow construction projects
to move forward if the air pollution
increase meets the definition of an
‘‘insignificant increase in allowable
emissions.’’
E. Chapter 74:36:05—Operating Sources
for Part 70 Sources
We are not taking action on revisions
to this chapter. Title V permits are not
part of the SIP.
F. Chapter 74:36:07—New Source
Performance Standards
We are not taking action on revisions
to this chapter. New source performance
standards (NSPS) are not part of the SIP.
G. Chapter 74:36:08—National Emission
Standards for Hazardous Air Pollutants
We are not taking action on revisions
to this chapter. National emission
standards for hazardous air pollutants
(NESHAPs) are not part of the SIP.
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H. Chapter 74:36:09—Prevention of
Significant Deterioration
Chapter 74:36:09 is South Dakota’s
PSD preconstruction program for major
sources located in areas of the state that
attain the federal national ambient air
quality standards (NAAQS). The
sections in Chapter 74:36:09 that are
being updated to the version of the
federal reference as of July 1, 2014,
involve the following: 74:36:09:02 and
74:36:09:03. This chapter also adds
74:36:09:02(7), 74:36:09:02(8) and
74:36:09:02(9). These provisions remove
40 CFR 52.21(b)(49)(v) and references to
40 CFR 52.21(b)(49)(v) from the SIP.
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I. Chapter 74:36:10—New Source
Review
Chapter 74:36:10 is South Dakota’s
New Source Review (NSR)
preconstruction permit program for
major sources in areas of the state that
are not attaining the NAAQS. All of
South Dakota is in attainment with the
federal standards; therefore, there are no
facilities that require a preconstruction
permit under this program.
The sections in Chapter 74:36:10 that
are being updated to the version of the
federal reference as of July 1, 2014,
involve the following: 74:36:10:02,
74:36:10:03.01, 74:36:10:05, 74:36:10:07
and 74:36:10:08.
On March 30, 2011, the EPA extended
the stay of the ‘‘Fugitive Emissions
Rule’’ under the new source review
program. The extension clarified the
stay and revisions of specific paragraphs
in the new source review program
affected by the ‘‘Fugitive Emissions
Rule.’’ Changes to 74:36:10:02 are
proposed revise South Dakota’s SIP to
remove these references.
On January 22, 2013, the United
States Court of Appeals for the District
of Columbia Circuit vacated the
significant impact levels for PM2.5 in the
new source review program. The
revisions to 74:36:10:06 reflect this
court decision.
J. Chapter 74:36:11—Performance
Testing
Chapter 74:36:11 identifies the
performance testing requirements used
by permitted facilities to demonstrate
compliance with permit limits. The
sections in Chapter 74:36:11 that are
being updated to the version of the
federal reference as of July 1, 2014,
involve the following: 74:36:11:01.
K. Chapter 74:36:12—Control of Visible
Emissions
Chapter 74:36:12 identifies visible
emission limits for units that emit air
pollution. The sections in Chapter
74:36:12 that are being updated to the
version of the federal reference as of
July 1, 2014, involve the following:
74:36:12:01 and 74:36:12:03.
L. Chapter 74:36:13—Continuous
Emission Monitoring Systems
Continuous Emission Monitoring
Systems are part of South Dakota’s Title
V program and are not part of the SIP.
M. Chapter 74:36:16—Acid Rain
Program
The Acid Rain Program is not part of
the SIP.
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N. Chapter 74:36:18—Regulations for
State Facilities in the Rapid City Area
The sections in Chapter 74:36:18 that
are being updated to the version of the
federal reference as of July 1, 2014,
involve the following: 74:36:18:10.
O. Chapter 74:36:20—Construction
Permits for New Sources or
Modifications
The reference date for the federal
regulation is proposed to be updated to
the most current version of the federal
reference of July 1, 2014. This revision
will update any minor inconsistency
between South Dakota’s SIP and EPA’s
federal regulations as of July 1, 2014.
These proposed changes involve section
74:36:20:05.
South Dakota’s October 23, 2015,
submittal adds certain pre-permit
construction activities and also adds
procedures for an ‘‘insignificant
increase in allowable emissions.’’ These
revisions are discussed in more detail in
Section III of this rulemaking.
III. What is the EPA proposing to
approve?
A. What the EPA Is Not Acting On
1. The EPA is not acting on revisions
to 74:36:05 (Operating Permits for Part
70 Sources), 74:36:07 (New Source
Performance Standards) and 74:36:08
(National Emission Standards for
Hazardous Air Pollutants) and 74:36:16
(Acid Rain) because these sections are
not part of the SIP.
2. The EPA will act on revisions to
74:36:01(73) (definition for Subject to
Regulation), and 74:36:09:02(10) in a
separate rulemaking. These revisions
revise the definition of ‘‘Subject to
Regulation’’ in the SIP. The definition of
‘‘Subject to Regulation’’ is located in 40
CFR 51.166(a)(48)(i)–(v) and 40 CFR
52.21(b)(49)(i)–(v).
On June 23, 2014, the U.S. Supreme
Court (Utility Air Regulatory Group
(UARG) v. EPA) held that the EPA may
not treat greenhouse gases (GHGs) as an
air pollutant for the specific purposes of
determining whether a source is a major
source and thus required to obtain a
PSD or title V permit. On April 10,
2015, the D.C. Circuit issued a Coalition
Amended Judgement, which reflects the
UARG v. EPA Supreme Court Decision.
The EPA issued a final rulemaking
addressing the court decision on August
19, 2015 (80 FR 50199).
The Coalition Amended Judgement
only specifically ordered that the EPA
regulations under review (including 40
CFR 51.166(b)(48)(v) and
52.21(b)(49)(v)) be vacated. In the EPA’s
final rulemaking titled ‘‘Prevention of
Significant Deterioration and Title V
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Permitting for Greenhouse Gases:
Removal of Certain Vacated Element,’’
which was published on August 19,
2015 (80 FR 50199), we state:
This final action removes from the CFR
several provisions of the PSD and title V
permitting regulations that were originally
promulgated as part of the Tailoring Rule and
that the D.C. Circuit specifically identified as
vacated in the Coalition Amended
Judgement. Because the D.C. Circuit
specifically identified the Tailoring Rule Step
2 PSD permitting requirements in 40 CFR
51.166(b)(48)(v) and 52.21(b)(49)(v) and the
regulations that require the EPA to consider
further phasing-in the GHG permitting
requirements at lower GHG emission
thresholds in 40 CFR 52.22, 70.12 and 71.13
as vacated, the EPA is taking the ministerial
action of removing these provisions from the
CFR.
EPA further states:
The EPA intends to further revise the PSD
and title V regulations to fully implement the
Coalition Amended Judgement in a separate
rulemaking. This future rulemaking will
include revisions to additional definitions in
the PSD regulations.
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We are acting on 74:36:01(73) in a
separate rulemaking because South
Dakota added the sentence ‘‘Greenhouse
gases are not subject to regulation unless
a PSD preconstruction permit is issued
regulating greenhouse gases in
accordance with chapter 74:39:09.’’ This
sentence is not in compliance with the
current definition of ‘‘Subject to
Regulation’’ in 40 CFR 51.166(b)(48) and
52.21(b)(49). As mentioned previously
in this rulemaking, the EPA intends to
publish a future rulemaking which will
revise additional definitions in the PSD
regulations. However, the EPA’s
rulemaking in 80 FR 50199 only
removes 40 CFR 51.166(b)(48)(v).
We are acting on 74:36:09(02)(10) in
a separate rulemaking because
74:36:09(02)(10) revises the definition of
40 CFR 52.21(b)(49)(iv)(b). The revision
is not in compliance with the current
definition of ‘‘Subject to Regulation’’ in
40 CFR 51.166(b)(48) and
52.21(b)(49)(iv)(b). Section
52.21(b)(49)(iv)(b) was not addressed in
80 FR 50199.
The EPA intends to act on these
revisions after a future EPA rulemaking
is published to include revisions to
additional definitions in the PSD
regulations.
B. What the EPA Is Acting On
The EPA is proposing to approve all
revisions as submitted by the State of
South Dakota on October 23, 2015, with
the exception of the revisions
mentioned in section III. A. of this
rulemaking. This includes the following
revisions:
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The Removal of PM2.5 SILs
We are proposing to approve the
removal of PM2.5 SILs from 74:36:10:06.
On January 22, 2013, the U.S. Court
of Appeals for the District of Columbia
Circuit ruled on a challenge brought by
the Sierra Club to the SILs and
significant monitoring concentration
(SMC) established for PM2.5 in the EPA’s
October 20, 2010 rule for implementing
the PM2.5 NAAQS. The court found
there was no authority for the SMC
established for PM2.5 and, as a result,
vacated the SMC. With respect to the
PM2.5 SIL, the court vacated and
remanded the SIL to the EPA at the
agency’s request. SILs and SMCs have
been important screening tools that have
been used to prevent unnecessary PSD
permitting delays when the impact of
the emission increases are considered
de minimis. On December 9, 2013, the
EPA issued a final rule that removes the
PM2.5 SIL from the EPA’s PSD
regulations. The final rule also sets the
SMC in the EPA’s PSD regulations at 0
mg/l, thus triggering the preconstruction
monitoring requirement for any increase
in ambient concentrations of PM2.5 from
a major project.
Pre-Permit Construction Activities
Chapter 74:36:20 requires an air
quality construction permit for new
businesses/facilities and existing
businesses/facilities that modify their
operations that do not meet the
requirements for obtaining a
preconstruction permit in Chapters
74:36:09 and 74:36:10. DENR submitted
Chapter 74:36:20 to the EPA for
inclusion in South Dakota’s SIP. The
EPA approved Chapter 74:36:20 in
South Dakota’s SIP on June 27, 2014,
except for the phrase, ‘‘unless it meets
the requirements in section
74:36:20:02.01,’’ and all of section
74:36:20:02.01 (79 FR 36419). This
section was disapproved because
construction was not limited to
construction of concrete foundations,
below ground plumbing, ductwork, or
other infrastructure and/or excavation
work prior to the issuance of the
construction permit and there was no
requirement for the source to receive a
completeness determination (or some
type of administrative approval) from
the reviewing authority prior to
construction. In this submittal, Section
74:36:20:02.01 allows small projects to
start construction, which is limited to
construction of concrete foundations,
below ground plumbing, ductwork, or
other infrastructure and/or excavation
work, after they receive a completeness
determination and prior to receiving a
construction permit but does not allow
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52391
them to start operation until the
construction permit has been issued.
The intention of the language was to
allow construction of small sources that
would not impact South Dakota’s ability
to achieve and/or maintain the NAAQS
because of South Dakota’s relative short
construction season due to ground
freezing during the winter season or
other inclement weather that could
potentially and unnecessarily delay the
construction project. These changes
were made to resolve the issue with the
EPA’s prior disapproval of section
74:36:20:02.01 in South Dakota’s SIP.
South Dakota’s proposed language
sets specific conditions that must be met
prior to a source commencing
construction (but before a construction
permit has been issued): (1) The owner/
operator has submitted a construction
permit application; (2) The owner/
operator provided five days notice of
their intention to initiate construction;
(3) The new source or modification to
an existing source is not subject to PSD
or NSR (it has to be a true minor
source); (4) The new source or
modification is not subject to case-bycase MACT; (5) The owner/operator is
liable for all construction conducted
before the permit is issued, and the
applicant may not operate any source
equipment that may emit any air
pollutant prior to receiving a permit; (6)
The owner/operator must cease
construction if the DENR demonstrates
that the construction will interfere with
the attainment or maintenance of a
NAAQS or increment; and (7) The
owner/operator must make any changes
to the new source or modification of an
existing source that may be imposed in
the issued construction permit.
This revision is in compliance with
federal requirements, including: (1)
CAA section 110(a)(2)(c), which
requires states to include a minor NSR
program in their SIP to regulate
modifications and new construction of
stationary sources within the area as
necessary to assure the NAAQS are
achieved; (2) The regulatory
requirements under 40 CFR 51.160,
including section 51.160(b), which
requires states to have legally
enforceable procedures to prevent
construction or modification of a source
if it would violate any SIP control
strategies or interfere with attainment or
maintenance of the NAAQS; and (3) the
statutory requirements under CAA
section 110(l), which provides that the
EPA cannot approve a SIP revision if the
revision would interfere with any
applicable requirement concerning
attainment and reasonable further
progress, or any other applicable
requirement of the CAA.
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Insignificant Increase in Allowable
Emissions
On July 1, 2011, the EPA promulgated
a federal minor source review program
in Indian country (Tribal NSR Rule) (76
FR 38748). The Tribal NSR Rule does
not require a construction permit for
new sources or modifications to existing
sources if emissions are below the
minor NSR threshold in Table 1 of 40
CFR 49.153.
In this rulemaking, the EPA
established de minimis thresholds at
which sources are to be exempt from
permitting requirements for each
regulated NSR pollutant (see 40 CFR
49.153—Table 1) utilizing an allowableto-allowable applicability test. The EPA
stated in this rulemaking that these
threshold levels represent a reasonable
balance between environmental
protection and economic growth (76 FR
38758). The EPA further recognized in
designing the tribal NSR rule, that the
overarching requirement is ensuring
NAAQS protection (76 FR 38756) as
described in CAA section 110(a)(2)(C).
In order to determine that the sources
below minor NSR permit thresholds in
40 CFR 49.153—Table 1 would be
inconsequential to attainment or
maintenance of the NAAQS, the EPA
performed a national source distribution
analysis (see 71 FR 48702). In this
analysis, the EPA looked at size
distribution of existing sources across
the country. Using the National
Emissions Inventory (NEI), which
includes the most comprehensive
inventory of existing U.S. stationary
point sources that is available, the EPA
determined how many of these sources
fall below the proposed minor NSR
thresholds (see 71 FR 48702, Table 2).
For each pollutant, the EPA found that
only around 1 percent (or less) of total
emissions would be exempt from review
under the minor NSR program. At the
same time, the thresholds would
promote an effective balance between
environmental protection and source
burden because anywhere from 42
percent to 76 percent of sources
(depending on the pollutant) would be
too small to be subject to
preconstruction review (76 FR 38758).
South Dakota, which contains areas of
Indian country that are subject to the
permitting thresholds in the tribal NSR
rule, has established the same
exemption levels as those in the tribal
NSR rule. In addition, as the EPA
explained in the tribal NSR rule, this
will ‘‘allow us to begin leveling the
playing field with the surrounding state
programs and will result in a more costeffective program by reducing the
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burden on sources and reviewing
authorities.’’ (see 76 FR 38758)
In order to be consistent with the EPA
and to streamline the process for
insignificant increases in air emissions,
DENR is proposing to add ‘‘insignificant
increase in allowable emissions’’ to the
definition of ‘‘permit revision’’ in
section 74:36:01(50) and an exemption
to the definition of ‘‘modification’’ in
section 74:36:01:10, which will allow
construction if the air emission
increases meet the definition of an
‘‘insignificant increase in allowable
emissions.’’ This can also be referred to
as a ‘‘de minimus exemption.’’ DENR is
proposing to add a definition for
‘‘insignificant increase in allowable
emissions,’’ which is derived from Table
1 in 40 CFR 49.153, in 74:36:01:10.01.
This process would still require the
project to be covered by a permit but
would use a process similar to the EPA’s
administrative amendment process.
We have also reviewed South
Dakota’s air monitoring data over the
last 5 years (see docket). This data
shows South Dakota is below the
NAAQS for all criteria pollutants.
The EPA notes that we have approved
several similar de minimis exemption
provisions in other states as follows:
1. On January 16, 2003, the EPA
approved a minor NSR program for the
State of Idaho (68 FR 2217). This rule
allows changes to be considered exempt
from permitting if the source’s
uncontrolled potential emissions are
less than ten percent (10%) of the NSR
significant emissions rate. For example:
1.5 tons per year for PM10, 4 tons per
year for volatile organic compounds
(VOCs), nitrogen dioxide (NO2), and
sulfur dioxide (SO2), and 10 tons per
year for carbon monoxide (CO). The
EPA determined in this instance that
states may exempt from minor NSR
certain categories of changes based on
de minimis or administrative necessity
grounds in accordance with the criteria
set out in Alabama Power Co. v. Costle,
636 F.2d 323 (D.C. Cir. 1979). De
minimis sources are presumed to not
have an impact and the state has
determined that their emissions would
not prevent or interfere with attainment
of the NAAQS, even within
nonattainment areas.
2. On February 13, 2012, the EPA
approved a five tons per year potential
emissions level as a de minimis
threshold to be exempt from permitting
requirements in the State of Montana
(77 FR 7531). In this final rulemaking,
the EPA determined this de minimis
threshold met the requirements of CAA
section 110(a)(2)(C), 40 CFR part 51.160
and CAA section 110(l).
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3. On May 27, 2008, the EPA
approved a 25 tons per year actual
emissions level as a de minimis
threshold for fossil fuel burning
equipment to be exempt from permitting
requirements in the State of North
Dakota, and a 5 ton per year actual
emissions level as a de minimis
threshold for any internal combustion
engine, or multiple engines to be
exempt from permitting requirements.
The EPA determined the revision will
not adversely impact the NAAQS or
PSD increments (73 FR 30308).
4. On February 1, 2006, the EPA
approved a 5 tons per year actual
emissions level as a de minimis
threshold to be exempt from permitting
requirements in the State of North
Carolina (see 61 FR 3584).
We evaluated the addition of
‘‘insignificant increase in allowable
emissions’’ to the South Dakota SIP
using the following: (1) The statutory
requirements under CAA section
110(a)(2)(c), which requires states to
include a minor NSR program in their
SIP to regulate modifications and new
construction of stationary sources
within the area as necessary to assure
the NAAQS are achieved; (2) the
regulatory requirements under 40 CFR
51.160, including section 51.160(b),
which requires states to have legally
enforceable procedures to prevent
construction or modification of a source
if it would violate any SIP control
strategies or interfere with attainment or
maintenance of the NAAQS; and (3) the
statutory requirements under CAA
section 110(l), which provides that the
EPA cannot approve a SIP revision if the
revision would interfere with any
applicable requirement concerning
attainment and reasonable further
progress, or any other applicable
requirement of the CAA. Therefore, the
EPA will approve a SIP revision only
after it is demonstrated that such a
revision will not interfere
(‘‘noninterference’’) with attainment of
the NAAQS, Rate of Progress (ROP),
RFP or any other applicable requirement
of the CAA.
We are proposing to approve the
addition of ‘‘insignificant increase in
allowable emissions.’’ These revisions
are expected to be inconsequential to
attainment and maintenance of the
NAAQS because: (1) Section 74:36 has
safeguards which prevent
circumvention of NSR requirements; (2)
Sources are still regulated by other rules
within 74:36 and underlying statewide
area source rules in the Administrative
Rules of South Dakota (ARSD); (3) The
insignificant thresholds in
74:36:01:10.01 are the same as the de
minimis level threshold in the Tribal
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NSR rule and similar to many of the
federally enforceable minor NSR
programs in surrounding states and
around the country; (4) South Dakota
contains areas of Indian country that are
subject to the permitting thresholds in
the tribal NSR rule; and (5) The last 5
years of monitoring data for criteria
pollutants (see docket) show that all
pollutants are below NAAQS levels.
Removal of 40 CFR 52.21(b)(49)(v) From
74:36:09 (PSD)
We are approving the removal of 40
CFR 52.21(b)(49)(v) from 74:36:09 to
reflect the Coalition Amended
Judgement, which only specifically
ordered that the EPA regulations under
review (including 40 CFR
51.166(b)(48)(v) and 52.21(b)(49)(v)) be
vacated. The EPA’s final rulemaking
titled ‘‘Prevention of Significant
Deterioration and Title V Permitting for
Greenhouse Gases: Removal of Certain
Vacated Element,’’ which was published
on August 19, 2015 (80 FR 50199)
removed 40 CFR 52.21(b)(49)(v) from
the CFR.
Proposed Correction to IBR Material in
Previous Rulemaking
In our final rule published in the
Federal Register on February 16, 2016
(81 FR 7706) we inadvertently used an
incorrect approval date in the updates to
the South Dakota regulatory table. The
EPA is proposing to correct this error
with today’s action. The IBR material for
our February 16, 2016 action is
contained within this docket.
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IV. What action is the EPA taking?
For the reasons described in section
III of this proposed rulemaking, the EPA
is proposing to approve South Dakota’s
October 23, 2015 submittal, with the
exceptions noted in section III. Our
action is based on an evaluation of
South Dakota’s revisions against the
requirements of CAA section
110(a)(2)(c) and regulatory requirements
under 40 CFR 51.160–164 and 40 CFR
51.166. The EPA is also proposing to
approve a correction to our final rule
published in the Federal Register on
February 16, 2016 (81 FR 7706).
IV. Incorporation by Reference
In this rule, the EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, the EPA is
proposing to incorporate by reference
the Administrative Rules of South
Dakota pertaining to section 74:36 as
outlined in this preamble. The EPA has
made, and will continue to make, these
documents generally available
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electronically through
www.regulations.gov and/or in hard
copy at the appropriate EPA office (see
the ADDRESSES section of this preamble
for more information).
V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, the EPA’s role is to
approve state choices, provided that
they meet the criteria of the Clean Air
Act. Accordingly, this proposed action
merely approves state law as meeting
federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this proposed action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• does not provide the EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
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52393
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and the EPA notes
that it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds, Incorporation by
reference.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 26, 2016.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2016–18759 Filed 8–5–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 745
[EPA–HQ–OPPT–2016–0126; FRL–9950–27–
OA]
Section 610 Review of the 2008 Lead;
Renovation, Repair, and Painting
Program (RRP); Extension of Comment
Period
Environmental Protection
Agency (EPA).
ACTION: Extension of public comment
period.
AGENCY:
On June 9, 2016 the
Environmental Protection Agency (EPA)
published a request for comments on a
Regulatory Flexibility Act section 610
review titled, Section 610 Review of
Lead-Based Paint Activities; Training
and Certification for Renovation and
Remodeling Section 402(C)(3) (Section
610 Review). As initially published in
the Federal Register, written comments
were to be submitted to the EPA on or
before August 8, 2016 (a 60-day public
comment period). Since publication, the
EPA has received a request for
additional time to submit comments.
Therefore, the EPA is extending the
public comment period for 30 days until
September 7, 2016.
DATES: The public comment period for
the review published June 9, 2016 (81
FR 37373) is being extended for 30 days
to September 7, 2016 in order to provide
the public additional time to submit
comments and supporting information.
ADDRESSES: Comments: Submit your
comments, identified by Docket ID No.
SUMMARY:
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[Federal Register Volume 81, Number 152 (Monday, August 8, 2016)]
[Proposed Rules]
[Pages 52388-52393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18759]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2016-0424; FRL-9950-38-Region 8]
Approval and Promulgation of Air Quality Implementation Plans;
South Dakota; Revisions to the Permitting Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve State Implementation Plan (SIP) revisions submitted by the
State of South Dakota on October 23, 2015 and July 29, 2013 related to
South Dakota's Air Pollution Control Program. The October 23, 2015
submittal revises certain definitions and dates of incorporation by
reference and contains new, amended and renumbered rules. In this
rulemaking, we are taking final action on all portions of the October
23, 2015 submittal, except for those
[[Page 52389]]
portions of the submittal which do not belong in the SIP. This action
is being taken under section 110 of the Clean Air Act (CAA).
DATES: Written comments must be received on or before September 7,
2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2016-0424, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.,) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6227,
leone.kevin@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
What should I consider as I prepare my comments for the EPA?
1. Submitting Confidential Business Information (CBI). Do not
submit CBI to the 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 the EPA,
mark the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
2. Tips for preparing your comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register, date, and
page number);
Follow directions and organize your comments;
Explain why you agree or disagree;
Suggest alternatives and substitute language for your
requested changes;
Describe any assumptions and provide any technical
information and/or data that you used;
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced;
Provide specific examples to illustrate your concerns, and
suggest alternatives;
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats; and
Make sure to submit your comments by the comment period
deadline identified.
II. Background
July 29, 2013 Submittal
On July 29, 2013, the State of South Dakota submitted a SIP
revision containing amendments 74:36:10:06 (Causing or contributing to
a violation of any national ambient air quality standard). This
revision added significant impact levels (SILs) for particulate matter
less than 2.5 microns (PM2.5.) as required in the EPA's
October 20, 2010, PM2.5 ``Increment Rule.'' However, on
January 22, 2013, the United States Court of Appeals for the District
of Columbia Circuit vacated the SILs for PM2.5. On December
9, 2013, the EPA issued a final rule that removes the PM2.5
SILs from the EPA's PSD regulations (78 FR 73698). As a result of this
court decision and the EPA's rulemaking, in the October 23, 2015,
submittal, South Dakota removed the SILs for PM2.5 from
section 74:36:10:06. This action effectively supersedes the July 29,
2013 action for 74:36:10:06.
October 23, 2015 Submittal
A. Chapter 74:36:01--Definitions
Chapter 74:36:01 defines the terms used throughout Article 74:36--
Air Pollution Control Program. There are six definitions in Chapter
74:36:01 that reference federal regulations. The sections in Chapter
74:36:01 that are being updated to the version of the federal reference
as of July 1, 2014, involve the following: 74:36:01:01(8),
74:36:01:01(29), 74:36:01:01(67), 74:36:01:01(73), 74:36:01:05, and
74:36:01:20. We will be acting on the revision to 74:36:01:01(73) in a
separate rulemaking. This is addressed in more detail under section III
of this rulemaking.
South Dakota's October 23, 2015 submittal also added the phrase
``insignificant increase in allowable emissions'' to the definition of
``permit revision'' in section 74:36:01(50) and revised the definition
of ``modification'' in section 74:36:01:10 to allow an exception for
insignificant increases in allowable emissions. This proposed
rulemaking also adds a new definition for ``Insignificant increases in
allowable emissions'' in section 74:36:01:10.01. This addition to the
definition for ``insignificant increase in allowable emissions'' is to
account for all of the new federal standards covering small sources of
air pollutants, to streamline the permitting actions for these small
sources, and to be consistent with federal permitting requirements.
This definition was derived from Table I in 40 CFR 49.153 and is
addressed in more detail under section III of this rulemaking.
B. Chapter 74:36:02--Ambient Air Quality
Chapter 74:36:02 established air quality goals and ambient air
quality standards for South Dakota. The sections in Chapter 74:36:02
that are being updated to the version of the federal reference as of
July 1, 2014, involve the following: 74:36:02:02, 74:36:02:03,
74:36:02:04 and 74:36:02:05.
C. Chapter 74:36:03--Air Quality Episodes
Chapter 74:36:03 identifies the contingency plan the South Dakota
Department of Environment and Natural Resources (DENR) will follow
during an air pollution emergency episode. The sections in Chapter
74:36:03 that are being updated to the version of the federal reference
as of July 1, 2014, involve the following: 74:36:03:01 and 74:36:03:02.
D. Chapter 74:36:04--Operating Sources for Minor Sources
Chapter 74:36:04 is South Dakota's minor source air quality
operating permit program. The section in Chapter 74:36:04 that is being
updated to the version of the federal reference as of July 1, 2014,
involve the following: 74:36:04:04.
Section 74:36:04:03 lists emission units that are exempt from
inclusion in
[[Page 52390]]
a minor air quality operating permit. Emission units may not be
exempted if federally enforceable limits have been included in the
permit to avoid other permits. The revisions are being proposed to
clarify that any unit that is subject to a federal rule in Chapter
74:36:07--New Source Performance Standards and Chapter 74:36:08--
National Emission Standards for Hazardous Air Pollutants may not be
exempted from inclusion in the minor air quality operating permit.
A definition for ``insignificant increase in allowable emissions''
is being added to Chapter 74:36:01 to account for all of the new
federal standards covering small sources of air pollutants, to stream
line the permitting actions for these small sources, and to be
consistent with the federal permitting requirements. As such, the
revisions are proposing to add section 74:36:04:21.01 which will
identify procedures for processing an application for activities that
are considered an ``insignificant increase in allowable emissions.''
This process will allow construction projects to move forward if the
air pollution increase meets the definition of an ``insignificant
increase in allowable emissions.''
E. Chapter 74:36:05--Operating Sources for Part 70 Sources
We are not taking action on revisions to this chapter. Title V
permits are not part of the SIP.
F. Chapter 74:36:07--New Source Performance Standards
We are not taking action on revisions to this chapter. New source
performance standards (NSPS) are not part of the SIP.
G. Chapter 74:36:08--National Emission Standards for Hazardous Air
Pollutants
We are not taking action on revisions to this chapter. National
emission standards for hazardous air pollutants (NESHAPs) are not part
of the SIP.
H. Chapter 74:36:09--Prevention of Significant Deterioration
Chapter 74:36:09 is South Dakota's PSD preconstruction program for
major sources located in areas of the state that attain the federal
national ambient air quality standards (NAAQS). The sections in Chapter
74:36:09 that are being updated to the version of the federal reference
as of July 1, 2014, involve the following: 74:36:09:02 and 74:36:09:03.
This chapter also adds 74:36:09:02(7), 74:36:09:02(8) and
74:36:09:02(9). These provisions remove 40 CFR 52.21(b)(49)(v) and
references to 40 CFR 52.21(b)(49)(v) from the SIP.
I. Chapter 74:36:10--New Source Review
Chapter 74:36:10 is South Dakota's New Source Review (NSR)
preconstruction permit program for major sources in areas of the state
that are not attaining the NAAQS. All of South Dakota is in attainment
with the federal standards; therefore, there are no facilities that
require a preconstruction permit under this program.
The sections in Chapter 74:36:10 that are being updated to the
version of the federal reference as of July 1, 2014, involve the
following: 74:36:10:02, 74:36:10:03.01, 74:36:10:05, 74:36:10:07 and
74:36:10:08.
On March 30, 2011, the EPA extended the stay of the ``Fugitive
Emissions Rule'' under the new source review program. The extension
clarified the stay and revisions of specific paragraphs in the new
source review program affected by the ``Fugitive Emissions Rule.''
Changes to 74:36:10:02 are proposed revise South Dakota's SIP to remove
these references.
On January 22, 2013, the United States Court of Appeals for the
District of Columbia Circuit vacated the significant impact levels for
PM2.5 in the new source review program. The revisions to
74:36:10:06 reflect this court decision.
J. Chapter 74:36:11--Performance Testing
Chapter 74:36:11 identifies the performance testing requirements
used by permitted facilities to demonstrate compliance with permit
limits. The sections in Chapter 74:36:11 that are being updated to the
version of the federal reference as of July 1, 2014, involve the
following: 74:36:11:01.
K. Chapter 74:36:12--Control of Visible Emissions
Chapter 74:36:12 identifies visible emission limits for units that
emit air pollution. The sections in Chapter 74:36:12 that are being
updated to the version of the federal reference as of July 1, 2014,
involve the following: 74:36:12:01 and 74:36:12:03.
L. Chapter 74:36:13--Continuous Emission Monitoring Systems
Continuous Emission Monitoring Systems are part of South Dakota's
Title V program and are not part of the SIP.
M. Chapter 74:36:16--Acid Rain Program
The Acid Rain Program is not part of the SIP.
N. Chapter 74:36:18--Regulations for State Facilities in the Rapid City
Area
The sections in Chapter 74:36:18 that are being updated to the
version of the federal reference as of July 1, 2014, involve the
following: 74:36:18:10.
O. Chapter 74:36:20--Construction Permits for New Sources or
Modifications
The reference date for the federal regulation is proposed to be
updated to the most current version of the federal reference of July 1,
2014. This revision will update any minor inconsistency between South
Dakota's SIP and EPA's federal regulations as of July 1, 2014. These
proposed changes involve section 74:36:20:05.
South Dakota's October 23, 2015, submittal adds certain pre-permit
construction activities and also adds procedures for an ``insignificant
increase in allowable emissions.'' These revisions are discussed in
more detail in Section III of this rulemaking.
III. What is the EPA proposing to approve?
A. What the EPA Is Not Acting On
1. The EPA is not acting on revisions to 74:36:05 (Operating
Permits for Part 70 Sources), 74:36:07 (New Source Performance
Standards) and 74:36:08 (National Emission Standards for Hazardous Air
Pollutants) and 74:36:16 (Acid Rain) because these sections are not
part of the SIP.
2. The EPA will act on revisions to 74:36:01(73) (definition for
Subject to Regulation), and 74:36:09:02(10) in a separate rulemaking.
These revisions revise the definition of ``Subject to Regulation'' in
the SIP. The definition of ``Subject to Regulation'' is located in 40
CFR 51.166(a)(48)(i)-(v) and 40 CFR 52.21(b)(49)(i)-(v).
On June 23, 2014, the U.S. Supreme Court (Utility Air Regulatory
Group (UARG) v. EPA) held that the EPA may not treat greenhouse gases
(GHGs) as an air pollutant for the specific purposes of determining
whether a source is a major source and thus required to obtain a PSD or
title V permit. On April 10, 2015, the D.C. Circuit issued a Coalition
Amended Judgement, which reflects the UARG v. EPA Supreme Court
Decision. The EPA issued a final rulemaking addressing the court
decision on August 19, 2015 (80 FR 50199).
The Coalition Amended Judgement only specifically ordered that the
EPA regulations under review (including 40 CFR 51.166(b)(48)(v) and
52.21(b)(49)(v)) be vacated. In the EPA's final rulemaking titled
``Prevention of Significant Deterioration and Title V
[[Page 52391]]
Permitting for Greenhouse Gases: Removal of Certain Vacated Element,''
which was published on August 19, 2015 (80 FR 50199), we state:
This final action removes from the CFR several provisions of the
PSD and title V permitting regulations that were originally
promulgated as part of the Tailoring Rule and that the D.C. Circuit
specifically identified as vacated in the Coalition Amended
Judgement. Because the D.C. Circuit specifically identified the
Tailoring Rule Step 2 PSD permitting requirements in 40 CFR
51.166(b)(48)(v) and 52.21(b)(49)(v) and the regulations that
require the EPA to consider further phasing-in the GHG permitting
requirements at lower GHG emission thresholds in 40 CFR 52.22, 70.12
and 71.13 as vacated, the EPA is taking the ministerial action of
removing these provisions from the CFR.
EPA further states:
The EPA intends to further revise the PSD and title V
regulations to fully implement the Coalition Amended Judgement in a
separate rulemaking. This future rulemaking will include revisions
to additional definitions in the PSD regulations.
We are acting on 74:36:01(73) in a separate rulemaking because
South Dakota added the sentence ``Greenhouse gases are not subject to
regulation unless a PSD preconstruction permit is issued regulating
greenhouse gases in accordance with chapter 74:39:09.'' This sentence
is not in compliance with the current definition of ``Subject to
Regulation'' in 40 CFR 51.166(b)(48) and 52.21(b)(49). As mentioned
previously in this rulemaking, the EPA intends to publish a future
rulemaking which will revise additional definitions in the PSD
regulations. However, the EPA's rulemaking in 80 FR 50199 only removes
40 CFR 51.166(b)(48)(v).
We are acting on 74:36:09(02)(10) in a separate rulemaking because
74:36:09(02)(10) revises the definition of 40 CFR 52.21(b)(49)(iv)(b).
The revision is not in compliance with the current definition of
``Subject to Regulation'' in 40 CFR 51.166(b)(48) and
52.21(b)(49)(iv)(b). Section 52.21(b)(49)(iv)(b) was not addressed in
80 FR 50199.
The EPA intends to act on these revisions after a future EPA
rulemaking is published to include revisions to additional definitions
in the PSD regulations.
B. What the EPA Is Acting On
The EPA is proposing to approve all revisions as submitted by the
State of South Dakota on October 23, 2015, with the exception of the
revisions mentioned in section III. A. of this rulemaking. This
includes the following revisions:
The Removal of PM2.5 SILs
We are proposing to approve the removal of PM2.5 SILs
from 74:36:10:06.
On January 22, 2013, the U.S. Court of Appeals for the District of
Columbia Circuit ruled on a challenge brought by the Sierra Club to the
SILs and significant monitoring concentration (SMC) established for
PM2.5 in the EPA's October 20, 2010 rule for implementing
the PM2.5 NAAQS. The court found there was no authority for
the SMC established for PM2.5 and, as a result, vacated the
SMC. With respect to the PM2.5 SIL, the court vacated and
remanded the SIL to the EPA at the agency's request. SILs and SMCs have
been important screening tools that have been used to prevent
unnecessary PSD permitting delays when the impact of the emission
increases are considered de minimis. On December 9, 2013, the EPA
issued a final rule that removes the PM2.5 SIL from the
EPA's PSD regulations. The final rule also sets the SMC in the EPA's
PSD regulations at 0 [mu]g/l, thus triggering the preconstruction
monitoring requirement for any increase in ambient concentrations of
PM2.5 from a major project.
Pre-Permit Construction Activities
Chapter 74:36:20 requires an air quality construction permit for
new businesses/facilities and existing businesses/facilities that
modify their operations that do not meet the requirements for obtaining
a preconstruction permit in Chapters 74:36:09 and 74:36:10. DENR
submitted Chapter 74:36:20 to the EPA for inclusion in South Dakota's
SIP. The EPA approved Chapter 74:36:20 in South Dakota's SIP on June
27, 2014, except for the phrase, ``unless it meets the requirements in
section 74:36:20:02.01,'' and all of section 74:36:20:02.01 (79 FR
36419). This section was disapproved because construction was not
limited to construction of concrete foundations, below ground plumbing,
ductwork, or other infrastructure and/or excavation work prior to the
issuance of the construction permit and there was no requirement for
the source to receive a completeness determination (or some type of
administrative approval) from the reviewing authority prior to
construction. In this submittal, Section 74:36:20:02.01 allows small
projects to start construction, which is limited to construction of
concrete foundations, below ground plumbing, ductwork, or other
infrastructure and/or excavation work, after they receive a
completeness determination and prior to receiving a construction permit
but does not allow them to start operation until the construction
permit has been issued. The intention of the language was to allow
construction of small sources that would not impact South Dakota's
ability to achieve and/or maintain the NAAQS because of South Dakota's
relative short construction season due to ground freezing during the
winter season or other inclement weather that could potentially and
unnecessarily delay the construction project. These changes were made
to resolve the issue with the EPA's prior disapproval of section
74:36:20:02.01 in South Dakota's SIP.
South Dakota's proposed language sets specific conditions that must
be met prior to a source commencing construction (but before a
construction permit has been issued): (1) The owner/operator has
submitted a construction permit application; (2) The owner/operator
provided five days notice of their intention to initiate construction;
(3) The new source or modification to an existing source is not subject
to PSD or NSR (it has to be a true minor source); (4) The new source or
modification is not subject to case-by-case MACT; (5) The owner/
operator is liable for all construction conducted before the permit is
issued, and the applicant may not operate any source equipment that may
emit any air pollutant prior to receiving a permit; (6) The owner/
operator must cease construction if the DENR demonstrates that the
construction will interfere with the attainment or maintenance of a
NAAQS or increment; and (7) The owner/operator must make any changes to
the new source or modification of an existing source that may be
imposed in the issued construction permit.
This revision is in compliance with federal requirements,
including: (1) CAA section 110(a)(2)(c), which requires states to
include a minor NSR program in their SIP to regulate modifications and
new construction of stationary sources within the area as necessary to
assure the NAAQS are achieved; (2) The regulatory requirements under 40
CFR 51.160, including section 51.160(b), which requires states to have
legally enforceable procedures to prevent construction or modification
of a source if it would violate any SIP control strategies or interfere
with attainment or maintenance of the NAAQS; and (3) the statutory
requirements under CAA section 110(l), which provides that the EPA
cannot approve a SIP revision if the revision would interfere with any
applicable requirement concerning attainment and reasonable further
progress, or any other applicable requirement of the CAA.
[[Page 52392]]
Insignificant Increase in Allowable Emissions
On July 1, 2011, the EPA promulgated a federal minor source review
program in Indian country (Tribal NSR Rule) (76 FR 38748). The Tribal
NSR Rule does not require a construction permit for new sources or
modifications to existing sources if emissions are below the minor NSR
threshold in Table 1 of 40 CFR 49.153.
In this rulemaking, the EPA established de minimis thresholds at
which sources are to be exempt from permitting requirements for each
regulated NSR pollutant (see 40 CFR 49.153--Table 1) utilizing an
allowable-to-allowable applicability test. The EPA stated in this
rulemaking that these threshold levels represent a reasonable balance
between environmental protection and economic growth (76 FR 38758). The
EPA further recognized in designing the tribal NSR rule, that the
overarching requirement is ensuring NAAQS protection (76 FR 38756) as
described in CAA section 110(a)(2)(C). In order to determine that the
sources below minor NSR permit thresholds in 40 CFR 49.153--Table 1
would be inconsequential to attainment or maintenance of the NAAQS, the
EPA performed a national source distribution analysis (see 71 FR
48702). In this analysis, the EPA looked at size distribution of
existing sources across the country. Using the National Emissions
Inventory (NEI), which includes the most comprehensive inventory of
existing U.S. stationary point sources that is available, the EPA
determined how many of these sources fall below the proposed minor NSR
thresholds (see 71 FR 48702, Table 2). For each pollutant, the EPA
found that only around 1 percent (or less) of total emissions would be
exempt from review under the minor NSR program. At the same time, the
thresholds would promote an effective balance between environmental
protection and source burden because anywhere from 42 percent to 76
percent of sources (depending on the pollutant) would be too small to
be subject to preconstruction review (76 FR 38758). South Dakota, which
contains areas of Indian country that are subject to the permitting
thresholds in the tribal NSR rule, has established the same exemption
levels as those in the tribal NSR rule. In addition, as the EPA
explained in the tribal NSR rule, this will ``allow us to begin
leveling the playing field with the surrounding state programs and will
result in a more cost-effective program by reducing the burden on
sources and reviewing authorities.'' (see 76 FR 38758)
In order to be consistent with the EPA and to streamline the
process for insignificant increases in air emissions, DENR is proposing
to add ``insignificant increase in allowable emissions'' to the
definition of ``permit revision'' in section 74:36:01(50) and an
exemption to the definition of ``modification'' in section 74:36:01:10,
which will allow construction if the air emission increases meet the
definition of an ``insignificant increase in allowable emissions.''
This can also be referred to as a ``de minimus exemption.'' DENR is
proposing to add a definition for ``insignificant increase in allowable
emissions,'' which is derived from Table 1 in 40 CFR 49.153, in
74:36:01:10.01. This process would still require the project to be
covered by a permit but would use a process similar to the EPA's
administrative amendment process.
We have also reviewed South Dakota's air monitoring data over the
last 5 years (see docket). This data shows South Dakota is below the
NAAQS for all criteria pollutants.
The EPA notes that we have approved several similar de minimis
exemption provisions in other states as follows:
1. On January 16, 2003, the EPA approved a minor NSR program for
the State of Idaho (68 FR 2217). This rule allows changes to be
considered exempt from permitting if the source's uncontrolled
potential emissions are less than ten percent (10%) of the NSR
significant emissions rate. For example: 1.5 tons per year for
PM10, 4 tons per year for volatile organic compounds (VOCs),
nitrogen dioxide (NO2), and sulfur dioxide (SO2),
and 10 tons per year for carbon monoxide (CO). The EPA determined in
this instance that states may exempt from minor NSR certain categories
of changes based on de minimis or administrative necessity grounds in
accordance with the criteria set out in Alabama Power Co. v. Costle,
636 F.2d 323 (D.C. Cir. 1979). De minimis sources are presumed to not
have an impact and the state has determined that their emissions would
not prevent or interfere with attainment of the NAAQS, even within
nonattainment areas.
2. On February 13, 2012, the EPA approved a five tons per year
potential emissions level as a de minimis threshold to be exempt from
permitting requirements in the State of Montana (77 FR 7531). In this
final rulemaking, the EPA determined this de minimis threshold met the
requirements of CAA section 110(a)(2)(C), 40 CFR part 51.160 and CAA
section 110(l).
3. On May 27, 2008, the EPA approved a 25 tons per year actual
emissions level as a de minimis threshold for fossil fuel burning
equipment to be exempt from permitting requirements in the State of
North Dakota, and a 5 ton per year actual emissions level as a de
minimis threshold for any internal combustion engine, or multiple
engines to be exempt from permitting requirements. The EPA determined
the revision will not adversely impact the NAAQS or PSD increments (73
FR 30308).
4. On February 1, 2006, the EPA approved a 5 tons per year actual
emissions level as a de minimis threshold to be exempt from permitting
requirements in the State of North Carolina (see 61 FR 3584).
We evaluated the addition of ``insignificant increase in allowable
emissions'' to the South Dakota SIP using the following: (1) The
statutory requirements under CAA section 110(a)(2)(c), which requires
states to include a minor NSR program in their SIP to regulate
modifications and new construction of stationary sources within the
area as necessary to assure the NAAQS are achieved; (2) the regulatory
requirements under 40 CFR 51.160, including section 51.160(b), which
requires states to have legally enforceable procedures to prevent
construction or modification of a source if it would violate any SIP
control strategies or interfere with attainment or maintenance of the
NAAQS; and (3) the statutory requirements under CAA section 110(l),
which provides that the EPA cannot approve a SIP revision if the
revision would interfere with any applicable requirement concerning
attainment and reasonable further progress, or any other applicable
requirement of the CAA. Therefore, the EPA will approve a SIP revision
only after it is demonstrated that such a revision will not interfere
(``noninterference'') with attainment of the NAAQS, Rate of Progress
(ROP), RFP or any other applicable requirement of the CAA.
We are proposing to approve the addition of ``insignificant
increase in allowable emissions.'' These revisions are expected to be
inconsequential to attainment and maintenance of the NAAQS because: (1)
Section 74:36 has safeguards which prevent circumvention of NSR
requirements; (2) Sources are still regulated by other rules within
74:36 and underlying statewide area source rules in the Administrative
Rules of South Dakota (ARSD); (3) The insignificant thresholds in
74:36:01:10.01 are the same as the de minimis level threshold in the
Tribal
[[Page 52393]]
NSR rule and similar to many of the federally enforceable minor NSR
programs in surrounding states and around the country; (4) South Dakota
contains areas of Indian country that are subject to the permitting
thresholds in the tribal NSR rule; and (5) The last 5 years of
monitoring data for criteria pollutants (see docket) show that all
pollutants are below NAAQS levels.
Removal of 40 CFR 52.21(b)(49)(v) From 74:36:09 (PSD)
We are approving the removal of 40 CFR 52.21(b)(49)(v) from
74:36:09 to reflect the Coalition Amended Judgement, which only
specifically ordered that the EPA regulations under review (including
40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v)) be vacated. The EPA's
final rulemaking titled ``Prevention of Significant Deterioration and
Title V Permitting for Greenhouse Gases: Removal of Certain Vacated
Element,'' which was published on August 19, 2015 (80 FR 50199) removed
40 CFR 52.21(b)(49)(v) from the CFR.
Proposed Correction to IBR Material in Previous Rulemaking
In our final rule published in the Federal Register on February 16,
2016 (81 FR 7706) we inadvertently used an incorrect approval date in
the updates to the South Dakota regulatory table. The EPA is proposing
to correct this error with today's action. The IBR material for our
February 16, 2016 action is contained within this docket.
IV. What action is the EPA taking?
For the reasons described in section III of this proposed
rulemaking, the EPA is proposing to approve South Dakota's October 23,
2015 submittal, with the exceptions noted in section III. Our action is
based on an evaluation of South Dakota's revisions against the
requirements of CAA section 110(a)(2)(c) and regulatory requirements
under 40 CFR 51.160-164 and 40 CFR 51.166. The EPA is also proposing to
approve a correction to our final rule published in the Federal
Register on February 16, 2016 (81 FR 7706).
IV. Incorporation by Reference
In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference the Administrative Rules of South Dakota pertaining to
section 74:36 as outlined in this preamble. The EPA has made, and will
continue to make, these documents generally available electronically
through www.regulations.gov and/or in hard copy at the appropriate EPA
office (see the ADDRESSES section of this preamble for more
information).
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves state law as meeting
federal requirements and does not impose additional requirements beyond
those imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and the EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds, Incorporation by reference.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 26, 2016.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2016-18759 Filed 8-5-16; 8:45 am]
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