Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 2010 SO2, 26007-26016 [2017-11573]
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Federal Register / Vol. 82, No. 107 / Tuesday, June 6, 2017 / Proposed Rules
submissions as supplemented by the
State for the 2010 SO2 and 2012 PM2.5
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
Colorado’s SIP submittals (contained
within this docket) meet the
requirements of CAA section
110(a)(2)(M), so we propose to approve
Colorado’s SIP as meeting these
requirements for the 2010 SO2 and 2012
PM2.5 NAAQS.
VII. What action is the EPA taking?
In this action, the EPA is proposing to
approve infrastructure elements for the
2010 SO2 and 2012 PM2.5 NAAQS from
26007
the State’s certifications as shown in
Table 1. Elements we propose no action
on are reflected in Table 2. A
comprehensive summary of
infrastructure elements organized by the
EPA’s proposed rule action are provided
in Table 1 and Table 2.
TABLE 1—LIST OF COLORADO INFRASTRUCTURE ELEMENTS AND REVISIONS THAT THE EPA IS PROPOSING TO APPROVE
Proposed for approval
July 10, 2013 submittal—2010 SO2 NAAQS:
(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
December 1, 2015 submittal—2012 PM2.5 NAAQS:
(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
TABLE 2—LIST OF COLORADO INFRASTRUCTURE ELEMENTS AND REVISIONS THAT THE EPA IS PROPOSING TO TAKE NO
ACTION ON
Proposed for no action
(Revision to be made in separate rulemaking action)
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July 13, 2013 submittal—2010 SO2 NAAQS:
(D)(i)(I) prongs 1 and 2.
December 1, 2015 submittal—2012 PM2.5 NAAQS:
(D)(i)(I) prongs 1 and 2.
VIII. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable federal regulations
(42 U.S.C. 7410(k), 40 CFR 52.02(a)).
Thus, in reviewing SIP submissions, the
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
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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 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, Feb. 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where the EPA or an Indian
tribe has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
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specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations,
Greenhouse gases, Lead, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 16, 2017.
Suzanne J. Bohan,
Acting Regional Administrator, Region 8.
[FR Doc. 2017–11574 Filed 6–5–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2016–0709; FRL–9963–27–
Region 8]
Promulgation of State Implementation
Plan Revisions; Infrastructure
Requirements for the 2010 SO2 and
2012 PM2.5 National Ambient Air
Quality Standards; South Dakota
AGENCY:
Environmental Protection
Agency.
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ACTION:
Federal Register / Vol. 82, No. 107 / Tuesday, June 6, 2017 / Proposed Rules
Proposed rule.
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 (Act, CAA) for the National
Ambient Air Quality Standards
(NAAQS) promulgated for sulfur
dioxide (SO2) on June 2, 2010, and fine
particulate matter (PM2.5) on December
14, 2012. Section 110(a) of the CAA
requires that each state submit a SIP for
the implementation, maintenance, and
enforcement of each NAAQS
promulgated by the EPA.
DATES: Written comments must be
received on or before July 6, 2017.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R08–
OAR–2016–0709 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from
www.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:
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:
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SUMMARY:
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
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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 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 June 2, 2010, the EPA
promulgated a revised primary SO2
standard of 75 ppb, based on a threeyear average of the annual 99th
percentile of one-hour daily maximum
concentrations (75 FR 35520, June 22,
2010). On December 14, 2012, the EPA
promulgated a revised annual PM2.5
standard by lowering the level to 12.0
mg/m3 and retaining the 24-hour PM2.5
standard at a level of 35 mg/m3 (78 FR
3086, Jan. 15, 2013).
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 SO2 and PM2.5
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already meet those requirements. The
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, the
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,
the 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?
The 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 the 2010 SO2 and 2012 PM2.5
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
three 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
the 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.
The 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, the 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
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‘‘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 the 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 The
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, the 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.
Examples of some of these
ambiguities and the context in which
the EPA interprets the ambiguous
portions of section 110(a)(1) and
110(a)(2) are discussed at length in our
notice of proposed rulemaking:
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 (79 FR 71040,
Dec. 1, 2014) under ‘‘III. What is the
Scope of this Rulemaking?’’
With respect to certain other issues,
the 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
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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(SSM) that may be contrary to the CAA
and the 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 SIPapproved emissions limits while
limiting public process or not requiring
further approval by the EPA; and (iii)
existing provisions for Prevention of
Significant Deterioration (PSD)
programs that may be inconsistent with
current requirements of the EPA’s
‘‘Final NSR Improvement Rule,’’ 67 FR
80186, Dec. 31, 2002, as amended by 72
FR 32526, June 13, 2007 (‘‘NSR
Reform’’).
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 threeyear submission deadline of section
110(a)(1) and are therefore not
addressed in this action. These elements
relate to part D of Title I of the CAA, and
submissions to satisfy them are not due
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26009
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, the 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
2010 SO2 NAAQS on December 20,
2013 and the 2012 PM2.5 NAAQS on
January 25, 2016. South Dakota’s
infrastructure certifications demonstrate
how the State, where applicable, has
plans in place that meet the
requirements of section 110 for the 2010
SO2 and 2012 PM2.5 NAAQS.
Infrastructure SIPs were taken out for
public notice and South Dakota
provided an opportunity for public
hearing, as indicated in the cover letter
of each certification (available within
this docket). 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 the 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
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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 2010 SO2 and 2012
PM2.5 NAAQS, subject to the following
clarifications.
First, the EPA does not consider SIP
requirements triggered by the
nonattainment area mandates in part D
of Title I of the CAA to be governed by
the submission deadline of section
110(a)(1). Furthermore, South Dakota
has no areas designated as
nonattainment for the 2010 SO2 or 2012
PM2.5 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 2010 SO2
and 2012 PM2.5 NAAQS.
Second, as previously discussed, the
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, the 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.
Third and finally, in this action, the
EPA is also not proposing to approve or
disapprove any existing state provision
with regard to excess emissions during
SSM or operations at a facility. A
number of states have SSM provisions
which are contrary to the CAA and
existing EPA guidance2 and the agency
is addressing such state regulations
separately (80 FR 33840, June 12, 2015).
Therefore, the EPA is proposing to
approve South Dakota’s infrastructure
2 Steven Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and
Robert Perciasepe, Assistant Administrator for Air
and Radiation, Memorandum to the EPA Air
Division Directors, ‘‘State Implementation Plans
(SIPs): Policy Regarding Emissions During
Malfunctions, Startup, and Shutdown.’’ (Sept. 20,
1999).
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SIP for the 2010 SO2, and 2012 PM2.5
NAAQS with respect to the general
requirement in section 110(a)(2)(A) to
include enforceable emission
limitations and other control measures,
means, or techniques to meet the
applicable requirements of this element.
2. Ambient air quality monitoring/
data system: Section 110(a)(2)(B)
requires SIPs to provide for
establishment and operation of
appropriate devices, methods, systems,
and procedures necessary to ‘‘(i)
monitor, compile, and analyze data on
ambient air quality, and (ii) upon
request, make such data available to the
Administrator.’’
Under ARSD 74:36:02, the DENR
operates a network of air monitoring
sites. The EPA approved South Dakota’s
2016 network changes through an
Ambient Air Monitoring Plan response
letter (contained within the docket)
mailed to the DENR on November 1,
2016. The State of South Dakota submits
data to the 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 2010
SO2 and 2012 PM2.5 NAAQS.
We find that South Dakota’s SIP and
practices are adequate for the ambient
air quality monitoring and data system
requirements for the 2010 SO2 and 2012
PM2.5 NAAQS; and therefore, propose to
approve the infrastructure SIP for the
2010 SO2 and 2012 PM2.5 NAAQS for
this element.
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 2010 SO2 and 2012 PM2.5
NAAQS. As explained elsewhere in this
action, the EPA is not evaluating
nonattainment related provisions, such
as the nonattainment NSR program
required by part D of the Act. The 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).
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Enforcement of Control Measures
Requirement
The State’s submissions cite SIP
approved ARSD Chapter 74:36:09
(Prevention of significant deterioration)
and ARSD Chapter 74:36:20
(Construction permits for new sources
and modifications) which provide for
the enforcement of emission limits and
control measures. SDCL 34A–1–39
through 34A–1–54 and 34A–1–62 gives
the DENR authority to provide
enforcement of South Dakota’s measure
and regulations that require new sources
or modifications to existing sources to
apply for and obtain an air quality
permit before constructing.
PSD Requirements
With respect to elements (C) and (J),
the 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) prong
3 (PSD) 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 greenhouse gases (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
the 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.
With respect to GHGs, on June 23,
2014, the United States Supreme Court
addressed the application of PSD
permitting requirements to GHG
emissions. Utility Air Regulatory Group
v. Environmental Protection Agency,
134 S.Ct. 2427 (2014). The Supreme
Court held that the EPA may not treat
GHGs as an air pollutant for purposes of
determining whether a source is a major
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source required to obtain a PSD permit.
The Court also held that the EPA could
continue to require that PSD permits,
otherwise required based on emissions
of pollutants other than GHGs, (anyway
sources) contain limitations on GHG
emissions based on the application of
Best Available Control Technology
(BACT).
In accordance with the Supreme
Court decision, on April 10, 2015, the
U.S. Court of Appeals for the District of
Columbia Circuit (the D.C. Circuit) in
Coalition for Responsible Regulation v.
EPA, 606 F. App’x. 6, at *7–8 (D.C. Cir.
April 10, 2015), issued an amended
judgment vacating the regulations that
implemented Step 2 of the EPA’s PSD
and Title V Greenhouse Gas Tailoring
Rule, but not the regulations that
implement Step 1 of that rule. Step 1 of
the Tailoring Rule covers sources that
are required to obtain a PSD permit
based on emissions of pollutants other
than GHGs. Step 2 applied to sources
that emitted only GHGs above the
thresholds triggering the requirement to
obtain a PSD permit. The amended
judgment preserves, without the need
for additional rulemaking by the EPA,
the application of the BACT
requirement to GHG emissions from
Step 1 or ‘‘anyway sources.’’ 3 With
respect to Step 2 sources, the D.C.
Circuit’s amended judgment vacated the
regulations at issue in the litigation,
including 40 CFR 51.166(b)(48)(v) and
52.21(b)(49)(v) ‘‘to the extent they
require a stationary source to obtain a
PSD permit if greenhouse gases are the
only pollutant (i) that the source emits
or has the potential to emit above the
applicable major source thresholds, or
(ii) for which there is a significant
emission increase from a modification.’’
The EPA is planning to take
additional steps to revise the federal
PSD rules in light of the Supreme Court
and subsequent D.C. Circuit opinion.
Some states have begun to revise their
existing SIP-approved PSD programs in
light of these court decisions, and some
states may prefer not to initiate this
process until they have more
information about the planned revisions
to the EPA’s PSD regulations. The EPA
is not expecting states to have revised
their PSD programs in anticipation of
the EPA’s planned actions to revise its
PSD program rules in response to the
court decisions.
At present, the EPA has determined
that South Dakota’s SIP is sufficient to
satisfy elements (C), (D)(i)(II) prong 3,
and (J) with respect to GHGs. This is
because the PSD permitting program
3 See 77 FR 41066 (July 12, 2012) (rulemaking for
definition of ‘‘anyway’’ sources).
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previously approved by the EPA into
the SIP continues to require that PSD
permits issued to ‘‘anyway sources’’
contain limitations on GHG emissions
based on the application of BACT. The
EPA most recently approved revisions
to South Dakota’s PSD program on
October 13, 2016 (81 FR 70626). The
approved South Dakota PSD permitting
program does not contain provisions
regarding Step 2 sources that are no
longer necessary in light of the Supreme
Court decision and D.C. Circuit’s
amended judgment, as these provisions
were removed in 81 FR 70626. The SIP
contains the PSD requirements for
applying the BACT requirement to
greenhouse gas emissions from ‘‘anyway
sources’’ that are necessary at this time.
The application of those requirements is
not impeded by the presence of other
previously-approved provisions
regarding the permitting of Step 2
sources. Accordingly, the Supreme
Court decision and subsequent D.C.
Circuit judgment do not prevent the
EPA’s approval of South Dakota’s
infrastructure SIP as to the requirements
of Elements (C), (D)(i)(II) prong 3, and
(J).
Finally, we evaluate the PSD program
with respect to current requirements for
PM2.5. In particular, on May 16, 2008,
the 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 the
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). The 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 the
EPA’s 2007 and 2008 rules
implementing the 1997 PM2.5 NAAQS.
The court ordered the EPA to
‘‘repromulgate these rules pursuant to
Subpart 4 consistent with this opinion.’’
Id. at 437. Subpart 4 of 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
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(nonattainment NSR) and attainment/
unclassifiable areas (PSD). As the
requirements of Subpart 4 only pertain
to nonattainment areas, the 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, the 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, the 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
the EPA’s action on the present
infrastructure action. The 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 the 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).
The 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
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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
acted on in our January 29, 2015
rulemaking (80 FR 4799). 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, incorporated 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 approved the
necessary portions of the July 29, 2013
submission to reflect the requirements
of the 2010 PM2.5 Increment Rule. South
Dakota’s SIP-approved PSD program
therefore meets current requirements for
PM2.5. As a result, the EPA is proposing
to approve South Dakota’s infrastructure
SIP for the 2010 SO2 and 2012 PM2.5
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 the
EPA on September 6, 1995 (60 FR
46222). Since approval of the minor
NSR program, the State and the 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, the 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. The
EPA’s 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.
The EPA is proposing to approve
South Dakota’s infrastructure SIP for the
2010 SO2 and 2012 PM2.5 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: The interstate
transport provisions in CAA section
110(a)(2)(D)(i) (also called ‘‘good
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neighbor’’ provisions) require each state
to submit a SIP that prohibits emissions
that will have certain adverse air quality
effects in other states. CAA section
110(a)(2)(D)(i) identifies four distinct
elements (or prongs) related to the
impacts of air pollutants transported
across state lines. The two elements
under section 110(a)(2)(D)(i)(I) require
SIPs to contain adequate provisions to
prohibit any source or other type of
emissions activity within the state from
emitting air pollutants that will (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 elements under section
110(a)(2)(D)(i)(II) require SIPs to contain
adequate provisions to prohibit
emissions that will 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.
In this action, the EPA is only
addressing prongs 3 (interference with
PSD) and 4 (interference with visibility
protection) of 110(a)(2)(D)(i) with regard
to the 2010 SO2, and 2012 PM2.5
NAAQS. We are not addressing prong 1
or prong 2 for either NAAQS in this
action, and will address these prongs in
a later rulemaking.
A. Evaluation of Interference With
Measures To Prevent Significant
Deterioration (PSD)
South Dakota’s certifications for both
the 2010 SO2 and 2012 PM2.5 NAAQS
both referenced the State’s SIP-approved
PSD program to address prong 3 and 4
of 110(a)(2)(D)(i). Both certifications 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 comprehensive EPAapproved PSD permitting program in
the SIP that applies to all regulated NSR
pollutants and that satisfies the
requirements of the EPA’s PSD
implementation rule(s).4 As noted in
Section VI.3 of this proposed action,
South Dakota has such a program, and
the EPA is therefore proposing to
approve South Dakota’s SIP for the 2010
SO2 and 2012 PM2.5 NAAQS with
respect to the requirement in section
110(a)(2)(C) to include a permit program
4 See
PO 00000
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in the SIP as required by part C of the
Act.
As stated in the 2013 Memo, in-state
sources not subject to PSD for any one
or more of the pollutants subject to
regulation under the CAA because they
are in a nonattainment area for a
NAAQS related to those particular
pollutants may also have the potential
to interfere with PSD in an attainment
or unclassifiable area of another state.
South Dakota does not contain any
nonattainment areas. The consideration
of nonattainment NSR for element 3 is
therefore not relevant as all major
sources locating in the State are subject
to PSD. As South Dakota’s SIP meets
PSD requirements for all regulated NSR
pollutants, the 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 2010 SO2 and
2012 PM2.5 NAAQS.
B. Evaluation of Interference With
Measures To Protect Visibility
To determine whether the CAA
section 110(a)(2)(D)(i)(II) requirement
for visibility protection is satisfied, the
SIP must address the potential for
interference with visibility protection
caused by the pollutant (including
precursors) to which the new or revised
NAAQS applies. An approved regional
haze SIP that fully meets the regional
haze requirements in 40 CFR 51.308
satisfies the 110(a)(2)(D)(i)(II)
requirement for visibility protection as
it ensures that emissions from the state
will not interfere with measures
required to be included in other state
SIPs to protect visibility. In the absence
of a fully approved regional haze SIP, a
state can still make a demonstration that
satisfies the visibility requirement
section of 110(a)(2)(D)(i)(II).5
South Dakota submitted a regional
haze SIP to the EPA on January 21,
2011, and submitted an amendment to
the SIP on September 19, 2011. The 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 the 110(a)(2)(D)(i) visibility
requirements for the 2010 SO2 and 2012
PM2.5 NAAQS. Therefore, we are
proposing to approve the South Dakota
SIP as meeting the requirements of
prong 4 of CAA section 110(a)(2)(D)(i)
for both of these NAAQS.
5 See 2013 Memo. In addition, the EPA approved
the visibility requirement of 110(a)(2)(D)(i) for the
1997 Ozone and PM2.5 NAAQS for Colorado before
taking action on the State’s regional haze SIP. 76 FR
22036 (April 20, 2011).
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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 of the U.S. EPA
(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.
As required by 40 CFR
51.166(q)(2)(iv), South Dakota’s SIPapproved PSD program requires notice
to states whose lands may be affected by
the emissions of sources subject to
PSD.6 This suffices to meet the notice
requirement of section 126(a).
South Dakota has no pending
obligations under sections 126(c) or
115(b); therefore, its SIP currently meets
the requirements of those sections. In
summary, the SIP meets the
requirements of CAA section
110(a)(2)(D)(ii) for the 2010 SO2 and
2012 PM2.5 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.’’
the 2010 SO2 and 2012 PM2.5 NAAQS.
The State receives sections 103 and 105
grant funds through its Performance
Partnership Grant from the 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 2010
SO2 and 2012 PM2.5 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.7
On January 29, 2015 (80 FR 4799), the
EPA approved SDCL 1–40–25.1 and
revisions to ARSD 74:09, Procedures
Board of Minerals and Environment,
into the South Dakota SIP as meeting
the requirements of section 128 of the
Act. SDCL 1–40–25.1 addresses board
composition requirements in section
128(a)(1) and ARSD 74:09 addresses
conflict of interest requirements in
section 128(a)(2). Details on how these
portions of the SDCL and ARSD meet
the requirements of section 128 are
provided in our December 1, 2014 (79
FR 71040) proposal notice. In our
January 29, 2015 action, we
correspondingly approved South
Dakota’s infrastructure SIP for the 1997
and 2006 PM2.5, 2008 lead, 2008 ozone
a. Sub-Elements (i) and (iii): Adequate
Personnel, Funding, and Legal Authority and 2010 NO2 NAAQS for element
(E)(ii). South Dakota’s SIP continues to
Under State Law To Carry Out Its SIP,
meet the requirements of section
and Related Issues
110(a)(2)(E)(ii), and we propose to
SDCL 34A–1–57 through 34A–1–60
approve the infrastructure SIP for the
provide adequate authority for the State
of South Dakota and the DENR to carry
7 The EPA’s proposed rule notice (79 FR 71040,
out its SIP obligations with respect to
Dec. 1, 2014) includes a discussion of the legislative
6 See
history of how states could meet the requirements
of CAA section 128.
ARSD 74:36:09:03.
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26013
2010 SO2 and 2012 PM2.5 NAAQS for
this element.
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 provisions listed in
the State’s certifications 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 include
monitoring and related record keeping
and reporting requirements. Reports
contain the quantity of hazardous air
pollutants, in tons, emitted for each 12month 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 reenforces 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.
Furthermore, 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.
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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 15, 2016. The 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’s
SIP as meeting the requirements of CAA
section 110(a)(2)(F) for the 2010 SO2
and 2012 PM2.5 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 8] and adequate contingency
plans to implement such authority.’’
Under CAA section 303, the
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 the EPA subsequently
files a civil suit. SDCL section 34A–1–
45 and ARSD section 74:36:03:01
provide APCD with general emergency
authority comparable to that in section
303 of the Act.9
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 can
by submitting a plan that meets the
8 Discussion of the requirements for meeting CAA
section 303 is provided in our notice of proposed
rulemaking: 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 (79 FR 71040, Dec. 1, 2014) under
‘‘VI. Analysis of State Submittals, 8. Emergency
powers.’’
9 See our proposed rulemaking at 79 FR 71053
(December 1, 2014), section VI.8 for a complete
discussion on how SDCL section 34A–1–45 and
ARSD section 74:36:03:01 provide authority
comparable to that in CAA section 303.
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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, the EPA has
not established priority classification for
a significant harm level for PM2.5.
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. However, Subpart H
does not currently address requirements
for the 24-hour PM2.5 standard. In 2009,
the 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.10 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
mg/m3. 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. The EPA notes that section
51.153 requires periodic reevaluation of
priority classifications based on the
three most recent years of air quality
data.
South Dakota has recorded no levels
of ambient air concentrations in the
three most recent complete calendar
years—2013, 2014, and 2015—that
exceed the 2009 guidance
memorandum.11 Furthermore, South
Dakota’s is classified as Priority III for
SO2 and is therefore not required to
submit emergency episode contingency
plans for SO2.
10 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).
11 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, and SO2; 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 PM2.5 and SO2. The SIP
therefore meets the requirements of
110(a)(2)(G). 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 2010 SO2 and 2012
PM2.5 NAAQS.
9. Future SIP revisions: Section
110(a)(2)(H) requires that SIPs provide
for revision of such plan: (i) ‘‘[f]rom
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
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SIP applies, consistent with the
requirements of CAA section 121.
Furthermore, the EPA previously
addressed the requirements of CAA
section 127 for the South Dakota SIP
and determined public notification
requirements are appropriate (45 FR
58525, Sept. 4, 1980).
As previously discussed, the State has
a SIP-approved PSD program that
incorporates by reference the federal
program at 40 CFR 52.21. The 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
previously noted. Therefore, the State
has also satisfied the requirements of
element 110(a)(2)(J).
Finally, with regard to the applicable
requirements for visibility protection,
the 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 2010 SO2 and
2012 PM2.5 NAAQS.
11. Air quality and modeling/data:
Section 110(a)(2)(K) requires each SIP to
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 the EPA
and provide the 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 2010 SO2 and 2012 PM2.5
NAAQS.
12. Permitting Fees
Section 110(a)(2)(L) requires ‘‘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.12 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.
We also note that all the State SIPs we
are proposing to approve in this action
26015
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 2010
SO2 and 2012 PM2.5 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 (SDCL
section 34–A–1 and 34A–1–10
Environmental Protection, contained
within this docket) provide the South
Dakota DENR with the authority to
advise, consult, and cooperate with
agencies of the state, local governments,
industries, other states, interstate or
inter-local agencies, the federal
government, and with interested
persons or groups and therefore meet
the requirements of CAA section
110(a)(2)(M). We propose to approve
South Dakota’s SIP as meeting these
requirements for the 2010 SO2 and 2012
PM2.5 NAAQS.
VII. What action is the EPA taking?
In this action, the EPA is proposing to
approve infrastructure elements for the
2010 SO2 and 2012 PM2.5 NAAQS from
the State’s certifications as shown in
Table 1. Elements we propose no action
on are reflected in Table 2. A
comprehensive summary of
infrastructure elements organized by the
EPA’s proposed rule action are provided
in Table 1 and Table 2.
TABLE 1—LIST OF SOUTH DAKOTA INFRASTRUCTURE ELEMENTS AND REVISIONS THAT THE EPA IS PROPOSING TO
APPROVE
mstockstill on DSK30JT082PROD with PROPOSALS
Proposed for approval
December 20, 2013 submittal—2010 SO2 NAAQS:
(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
January 25, 2016 submittal—2012 PM2.5 NAAQS:
(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M).
12 See Email from Brian Gustafson ‘‘Question
Regarding Permitting Fees for SD iSIP Action’’ July
24, 2014, available within docket.
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Federal Register / Vol. 82, No. 107 / Tuesday, June 6, 2017 / Proposed Rules
TABLE 2—LIST OF SOUTH DAKOTA INFRASTRUCTURE ELEMENTS AND REVISIONS THAT THE EPA IS PROPOSING TO TAKE
NO ACTION ON
Proposed for no action
(Revision to be made in separate rulemaking action.)
mstockstill on DSK30JT082PROD with PROPOSALS
December 20, 2013 submittal—2010 SO2 NAAQS:
(D)(i)(I) prongs 1 and 2.
January 25, 2016 submittal—2012 PM2.5 NAAQS:
(D)(i)(I) prongs 1 and 2.
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, the
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 the EPA with the
discretionary authority to address, as
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02:12 Jun 06, 2017
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appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, Feb. 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where the EPA or an Indian
tribe has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations,
Greenhouse gases, Lead, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 16, 2017.
Suzanne J. Bohan,
Acting Regional Administrator, Region 8.
[FR Doc. 2017–11573 Filed 6–5–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 62
[EPA–R01–OAR–2017–0202; FRL–9962–40–
Region 1]
Approval and Promulgation of State
Plans (Negative Declarations) for
Designated Facilities and Pollutants:
Connecticut, New Hampshire, Rhode
Island, and Vermont; Revisions to
State Plan for Designated Facilities
and Pollutants: New Hampshire
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve:
Negative declarations for commercial
SUMMARY:
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and industrial solid waste incinerators
for the State of Connecticut, the State of
New Hampshire, the State of Rhode
Island, and the State of Vermont;
negative declarations for hospital/
medical/infectious waste incinerators
for the State of Rhode Island; and
revisions to the state plan for existing
large and small municipal waste
combustors for the State of New
Hampshire. This action is being made in
accordance with sections 111 and 129 of
the Clean Air Act (CAA).
DATES: Written comments must be
received on or before July 6, 2017.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R01–
OAR–2017–0202 at https://
www.regulations.gov, or via email to
bird.patrick@epa.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. For either manner of
submission, 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, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
For 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:
Patrick Bird, Air Permits, Toxics, &
Indoor Programs Unit, Air Programs
Branch, Office of Ecosystem Protection,
U.S. Environmental Protection Agency,
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[Federal Register Volume 82, Number 107 (Tuesday, June 6, 2017)]
[Proposed Rules]
[Pages 26007-26016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11573]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2016-0709; FRL-9963-27-Region 8]
Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 2010 SO2 and 2012 PM2.5 National
Ambient Air Quality Standards; South Dakota
AGENCY: Environmental Protection Agency.
[[Page 26008]]
ACTION: Proposed rule.
-----------------------------------------------------------------------
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 (Act, CAA) for the National Ambient
Air Quality Standards (NAAQS) promulgated for sulfur dioxide
(SO2) on June 2, 2010, and fine particulate matter
(PM2.5) on December 14, 2012. Section 110(a) of the CAA
requires that each state submit a SIP for the implementation,
maintenance, and enforcement of each NAAQS promulgated by the EPA.
DATES: Written comments must be received on or before July 6, 2017.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2016-0709 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from www.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: 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:
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 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 June 2, 2010, the EPA promulgated a revised primary
SO2 standard of 75 ppb, based on a three-year average of the
annual 99th percentile of one-hour daily maximum concentrations (75 FR
35520, June 22, 2010). On December 14, 2012, the EPA promulgated a
revised annual PM2.5 standard by lowering the level to 12.0
[mu]g/m\3\ and retaining the 24-hour PM2.5 standard at a
level of 35 [mu]g/m\3\ (78 FR 3086, Jan. 15, 2013).
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 SO2 and PM2.5
already meet those requirements. The 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, the 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, the 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?
The 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 the 2010 SO2 and 2012 PM2.5 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 three 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 the 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.
The 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, the 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
[[Page 26009]]
``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 the 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\ The 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, the 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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
Examples of some of these ambiguities and the context in which the
EPA interprets the ambiguous portions of section 110(a)(1) and
110(a)(2) are discussed at length in our notice of proposed rulemaking:
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 (79 FR 71040, Dec. 1, 2014) under ``III. What is the Scope
of this Rulemaking?''
With respect to certain other issues, the 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 the
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 the EPA; and (iii)
existing provisions for Prevention of Significant Deterioration (PSD)
programs that may be inconsistent with current requirements of the
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, Dec. 31, 2002, as
amended by 72 FR 32526, June 13, 2007 (``NSR Reform'').
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, the 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 2010 SO2 NAAQS on December 20, 2013 and the 2012
PM2.5 NAAQS on January 25, 2016. South Dakota's
infrastructure certifications demonstrate how the State, where
applicable, has plans in place that meet the requirements of section
110 for the 2010 SO2 and 2012 PM2.5 NAAQS.
Infrastructure SIPs were taken out for public notice and South Dakota
provided an opportunity for public hearing, as indicated in the cover
letter of each certification (available within this docket). 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 the 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
[[Page 26010]]
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 2010
SO2 and 2012 PM2.5 NAAQS, subject to the
following clarifications.
First, the EPA does not consider SIP requirements triggered by the
nonattainment area mandates in part D of Title I of the CAA to be
governed by the submission deadline of section 110(a)(1). Furthermore,
South Dakota has no areas designated as nonattainment for the 2010
SO2 or 2012 PM2.5 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 2010 SO2 and 2012
PM2.5 NAAQS.
Second, as previously discussed, the 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, the 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.
Third and finally, in this action, the EPA is also not proposing to
approve or disapprove any existing state provision with regard to
excess emissions during SSM or operations at a facility. A number of
states have SSM provisions which are contrary to the CAA and existing
EPA guidance\2\ and the agency is addressing such state regulations
separately (80 FR 33840, June 12, 2015).
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\2\ Steven Herman, Assistant Administrator for Enforcement and
Compliance Assurance, and Robert Perciasepe, Assistant Administrator
for Air and Radiation, Memorandum to the EPA Air Division Directors,
``State Implementation Plans (SIPs): Policy Regarding Emissions
During Malfunctions, Startup, and Shutdown.'' (Sept. 20, 1999).
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Therefore, the EPA is proposing to approve South Dakota's
infrastructure SIP for the 2010 SO2, and 2012
PM2.5 NAAQS with respect to the general requirement in
section 110(a)(2)(A) to include enforceable emission limitations and
other control measures, means, or techniques to meet the applicable
requirements of this element.
2. Ambient air quality monitoring/data system: Section 110(a)(2)(B)
requires SIPs to provide for establishment and operation of appropriate
devices, methods, systems, and procedures necessary to ``(i) monitor,
compile, and analyze data on ambient air quality, and (ii) upon
request, make such data available to the Administrator.''
Under ARSD 74:36:02, the DENR operates a network of air monitoring
sites. The EPA approved South Dakota's 2016 network changes through an
Ambient Air Monitoring Plan response letter (contained within the
docket) mailed to the DENR on November 1, 2016. The State of South
Dakota submits data to the 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 2010 SO2 and 2012
PM2.5 NAAQS.
We find that South Dakota's SIP and practices are adequate for the
ambient air quality monitoring and data system requirements for the
2010 SO2 and 2012 PM2.5 NAAQS; and therefore,
propose to approve the infrastructure SIP for the 2010 SO2
and 2012 PM2.5 NAAQS for this element.
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 2010
SO2 and 2012 PM2.5 NAAQS. As explained elsewhere
in this action, the EPA is not evaluating nonattainment related
provisions, such as the nonattainment NSR program required by part D of
the Act. The 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).
Enforcement of Control Measures Requirement
The State's submissions cite SIP approved ARSD Chapter 74:36:09
(Prevention of significant deterioration) and ARSD Chapter 74:36:20
(Construction permits for new sources and modifications) which provide
for the enforcement of emission limits and control measures. SDCL 34A-
1-39 through 34A-1-54 and 34A-1-62 gives the DENR authority to provide
enforcement of South Dakota's measure and regulations that require new
sources or modifications to existing sources to apply for and obtain an
air quality permit before constructing.
PSD Requirements
With respect to elements (C) and (J), the 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) prong
3 (PSD) 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 greenhouse
gases (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 the 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.
With respect to GHGs, on June 23, 2014, the United States Supreme
Court addressed the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S.Ct. 2427 (2014). The Supreme Court held that the EPA may
not treat GHGs as an air pollutant for purposes of determining whether
a source is a major
[[Page 26011]]
source required to obtain a PSD permit. The Court also held that the
EPA could continue to require that PSD permits, otherwise required
based on emissions of pollutants other than GHGs, (anyway sources)
contain limitations on GHG emissions based on the application of Best
Available Control Technology (BACT).
In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (the
D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F.
App'x. 6, at *7-8 (D.C. Cir. April 10, 2015), issued an amended
judgment vacating the regulations that implemented Step 2 of the EPA's
PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations
that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers
sources that are required to obtain a PSD permit based on emissions of
pollutants other than GHGs. Step 2 applied to sources that emitted only
GHGs above the thresholds triggering the requirement to obtain a PSD
permit. The amended judgment preserves, without the need for additional
rulemaking by the EPA, the application of the BACT requirement to GHG
emissions from Step 1 or ``anyway sources.'' \3\ With respect to Step 2
sources, the D.C. Circuit's amended judgment vacated the regulations at
issue in the litigation, including 40 CFR 51.166(b)(48)(v) and
52.21(b)(49)(v) ``to the extent they require a stationary source to
obtain a PSD permit if greenhouse gases are the only pollutant (i) that
the source emits or has the potential to emit above the applicable
major source thresholds, or (ii) for which there is a significant
emission increase from a modification.''
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\3\ See 77 FR 41066 (July 12, 2012) (rulemaking for definition
of ``anyway'' sources).
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The EPA is planning to take additional steps to revise the federal
PSD rules in light of the Supreme Court and subsequent D.C. Circuit
opinion. Some states have begun to revise their existing SIP-approved
PSD programs in light of these court decisions, and some states may
prefer not to initiate this process until they have more information
about the planned revisions to the EPA's PSD regulations. The EPA is
not expecting states to have revised their PSD programs in anticipation
of the EPA's planned actions to revise its PSD program rules in
response to the court decisions.
At present, the EPA has determined that South Dakota's SIP is
sufficient to satisfy elements (C), (D)(i)(II) prong 3, and (J) with
respect to GHGs. This is because the PSD permitting program previously
approved by the EPA into the SIP continues to require that PSD permits
issued to ``anyway sources'' contain limitations on GHG emissions based
on the application of BACT. The EPA most recently approved revisions to
South Dakota's PSD program on October 13, 2016 (81 FR 70626). The
approved South Dakota PSD permitting program does not contain
provisions regarding Step 2 sources that are no longer necessary in
light of the Supreme Court decision and D.C. Circuit's amended
judgment, as these provisions were removed in 81 FR 70626. The SIP
contains the PSD requirements for applying the BACT requirement to
greenhouse gas emissions from ``anyway sources'' that are necessary at
this time. The application of those requirements is not impeded by the
presence of other previously-approved provisions regarding the
permitting of Step 2 sources. Accordingly, the Supreme Court decision
and subsequent D.C. Circuit judgment do not prevent the EPA's approval
of South Dakota's infrastructure SIP as to the requirements of Elements
(C), (D)(i)(II) prong 3, and (J).
Finally, we evaluate the PSD program with respect to current
requirements for PM2.5. In particular, on May 16, 2008, the
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 the 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). The 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 the EPA's 2007 and 2008 rules implementing the 1997
PM2.5 NAAQS. The court ordered the EPA to ``repromulgate
these rules pursuant to Subpart 4 consistent with this opinion.'' Id.
at 437. Subpart 4 of 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, the 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, the 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, the 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 the EPA's action on the present infrastructure action. The 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 the
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). The 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
[[Page 26012]]
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 acted on in our January 29, 2015 rulemaking (80
FR 4799). 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, incorporated 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 approved the necessary portions
of the July 29, 2013 submission to reflect the requirements of the 2010
PM2.5 Increment Rule. South Dakota's SIP-approved PSD
program therefore meets current requirements for PM2.5. As a
result, the EPA is proposing to approve South Dakota's infrastructure
SIP for the 2010 SO2 and 2012 PM2.5 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 the EPA on September 6, 1995 (60 FR 46222). Since approval
of the minor NSR program, the State and the 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, the 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. The
EPA's 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.
The EPA is proposing to approve South Dakota's infrastructure SIP
for the 2010 SO2 and 2012 PM2.5 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: The interstate transport provisions in CAA
section 110(a)(2)(D)(i) (also called ``good neighbor'' provisions)
require each state to submit a SIP that prohibits emissions that will
have certain adverse air quality effects in other states. CAA section
110(a)(2)(D)(i) identifies four distinct elements (or prongs) related
to the impacts of air pollutants transported across state lines. The
two elements under section 110(a)(2)(D)(i)(I) require SIPs to contain
adequate provisions to prohibit any source or other type of emissions
activity within the state from emitting air pollutants that will (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 elements under section 110(a)(2)(D)(i)(II) require SIPs
to contain adequate provisions to prohibit emissions that will
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. In this action, the EPA is only addressing prongs 3
(interference with PSD) and 4 (interference with visibility protection)
of 110(a)(2)(D)(i) with regard to the 2010 SO2, and 2012
PM2.5 NAAQS. We are not addressing prong 1 or prong 2 for
either NAAQS in this action, and will address these prongs in a later
rulemaking.
A. Evaluation of Interference With Measures To Prevent Significant
Deterioration (PSD)
South Dakota's certifications for both the 2010 SO2 and
2012 PM2.5 NAAQS both referenced the State's SIP-approved
PSD program to address prong 3 and 4 of 110(a)(2)(D)(i). Both
certifications 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 comprehensive EPA-approved PSD permitting program in the SIP that
applies to all regulated NSR pollutants and that satisfies the
requirements of the EPA's PSD implementation rule(s).\4\ As noted in
Section VI.3 of this proposed action, South Dakota has such a program,
and the EPA is therefore proposing to approve South Dakota's SIP for
the 2010 SO2 and 2012 PM2.5 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.
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\4\ See 2013 Memo.
---------------------------------------------------------------------------
As stated in the 2013 Memo, in-state sources not subject to PSD for
any one or more of the pollutants subject to regulation under the CAA
because they are in a nonattainment area for a NAAQS related to those
particular pollutants may also have the potential to interfere with PSD
in an attainment or unclassifiable area of another state. South Dakota
does not contain any nonattainment areas. The consideration of
nonattainment NSR for element 3 is therefore not relevant as all major
sources locating in the State are subject to PSD. As South Dakota's SIP
meets PSD requirements for all regulated NSR pollutants, the 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
2010 SO2 and 2012 PM2.5 NAAQS.
B. Evaluation of Interference With Measures To Protect Visibility
To determine whether the CAA section 110(a)(2)(D)(i)(II)
requirement for visibility protection is satisfied, the SIP must
address the potential for interference with visibility protection
caused by the pollutant (including precursors) to which the new or
revised NAAQS applies. An approved regional haze SIP that fully meets
the regional haze requirements in 40 CFR 51.308 satisfies the
110(a)(2)(D)(i)(II) requirement for visibility protection as it ensures
that emissions from the state will not interfere with measures required
to be included in other state SIPs to protect visibility. In the
absence of a fully approved regional haze SIP, a state can still make a
demonstration that satisfies the visibility requirement section of
110(a)(2)(D)(i)(II).\5\
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\5\ See 2013 Memo. In addition, the EPA approved the visibility
requirement of 110(a)(2)(D)(i) for the 1997 Ozone and
PM2.5 NAAQS for Colorado before taking action on the
State's regional haze SIP. 76 FR 22036 (April 20, 2011).
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South Dakota submitted a regional haze SIP to the EPA on January
21, 2011, and submitted an amendment to the SIP on September 19, 2011.
The 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 the 110(a)(2)(D)(i) visibility
requirements for the 2010 SO2 and 2012 PM2.5
NAAQS. Therefore, we are proposing to approve the South Dakota SIP as
meeting the requirements of prong 4 of CAA section 110(a)(2)(D)(i) for
both of these NAAQS.
[[Page 26013]]
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 of the
U.S. EPA (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.
As required by 40 CFR 51.166(q)(2)(iv), South Dakota's SIP-approved
PSD program requires notice to states whose lands may be affected by
the emissions of sources subject to PSD.\6\ This suffices to meet the
notice requirement of section 126(a).
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\6\ See ARSD 74:36:09:03.
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South Dakota has no pending obligations under sections 126(c) or
115(b); therefore, its SIP currently meets the requirements of those
sections. In summary, the SIP meets the requirements of CAA section
110(a)(2)(D)(ii) for the 2010 SO2 and 2012 PM2.5
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 2010 SO2 and 2012 PM2.5
NAAQS. The State receives sections 103 and 105 grant funds through its
Performance Partnership Grant from the 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 2010 SO2 and
2012 PM2.5 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.\7\
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\7\ The EPA's proposed rule notice (79 FR 71040, Dec. 1, 2014)
includes a discussion of the legislative history of how states could
meet the requirements of CAA section 128.
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On January 29, 2015 (80 FR 4799), the EPA approved SDCL 1-40-25.1
and revisions to ARSD 74:09, Procedures Board of Minerals and
Environment, into the South Dakota SIP as meeting the requirements of
section 128 of the Act. SDCL 1-40-25.1 addresses board composition
requirements in section 128(a)(1) and ARSD 74:09 addresses conflict of
interest requirements in section 128(a)(2). Details on how these
portions of the SDCL and ARSD meet the requirements of section 128 are
provided in our December 1, 2014 (79 FR 71040) proposal notice. In our
January 29, 2015 action, we correspondingly approved South Dakota's
infrastructure SIP for the 1997 and 2006 PM2.5, 2008 lead,
2008 ozone and 2010 NO2 NAAQS for element (E)(ii). South
Dakota's SIP continues to meet the requirements of section
110(a)(2)(E)(ii), and we propose to approve the infrastructure SIP for
the 2010 SO2 and 2012 PM2.5 NAAQS for this
element.
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 provisions listed in the State's certifications
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 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.
Furthermore, 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.
[[Page 26014]]
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
15, 2016. The 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's SIP as meeting the requirements of CAA section 110(a)(2)(F)
for the 2010 SO2 and 2012 PM2.5 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 \8\] and adequate contingency plans to implement such
authority.''
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\8\ Discussion of the requirements for meeting CAA section 303
is provided in our notice of proposed rulemaking: 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 (79 FR
71040, Dec. 1, 2014) under ``VI. Analysis of State Submittals, 8.
Emergency powers.''
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Under CAA section 303, the 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 the EPA subsequently
files a civil suit. SDCL section 34A-1-45 and ARSD section 74:36:03:01
provide APCD with general emergency authority comparable to that in
section 303 of the Act.\9\
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\9\ See our proposed rulemaking at 79 FR 71053 (December 1,
2014), section VI.8 for a complete discussion on how SDCL section
34A-1-45 and ARSD section 74:36:03:01 provide authority comparable
to that in CAA section 303.
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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 can 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, the EPA has not established priority classification for a
significant harm level for PM2.5.
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. However, Subpart H does not currently
address requirements for the 24-hour PM2.5 standard. In
2009, the 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.\10\ 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 mg/m3. 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. The 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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\10\ 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--2013, 2014, and
2015--that exceed the 2009 guidance memorandum.\11\ Furthermore, South
Dakota's is classified as Priority III for SO2 and is
therefore not required to submit emergency episode contingency plans
for SO2.
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\11\ 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, and SO2; 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
PM2.5 and SO2. The SIP therefore meets the
requirements of 110(a)(2)(G). 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 2010 SO2 and 2012
PM2.5 NAAQS.
9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs
provide for revision of such plan: (i) ``[f]rom 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
[[Page 26015]]
SIP applies, consistent with the requirements of CAA section 121.
Furthermore, the EPA previously addressed the requirements of CAA
section 127 for the South Dakota SIP and determined public notification
requirements are appropriate (45 FR 58525, Sept. 4, 1980).
As previously discussed, the State has a SIP-approved PSD program
that incorporates by reference the federal program at 40 CFR 52.21. The
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 previously
noted. Therefore, the State has also satisfied the requirements of
element 110(a)(2)(J).
Finally, with regard to the applicable requirements for visibility
protection, the 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
2010 SO2 and 2012 PM2.5 NAAQS.
11. Air quality and modeling/data: Section 110(a)(2)(K) requires
each SIP to 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 the EPA and provide the 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 2010 SO2 and 2012 PM2.5 NAAQS.
12. Permitting Fees
Section 110(a)(2)(L) requires ``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.\12\ 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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\12\ 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 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 2010 SO2
and 2012 PM2.5 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
(SDCL section 34-A-1 and 34A-1-10 Environmental Protection, contained
within this docket) provide the South Dakota DENR with the authority to
advise, consult, and cooperate with agencies of the state, local
governments, industries, other states, interstate or inter-local
agencies, the federal government, and with interested persons or groups
and therefore meet the requirements of CAA section 110(a)(2)(M). We
propose to approve South Dakota's SIP as meeting these requirements for
the 2010 SO2 and 2012 PM2.5 NAAQS.
VII. What action is the EPA taking?
In this action, the EPA is proposing to approve infrastructure
elements for the 2010 SO2 and 2012 PM2.5 NAAQS
from the State's certifications as shown in Table 1. Elements we
propose no action on are reflected in Table 2. A comprehensive summary
of infrastructure elements organized by the EPA's proposed rule action
are provided in Table 1 and Table 2.
Table 1--List of South Dakota Infrastructure Elements and Revisions That
the EPA Is Proposing To Approve
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Proposed for approval
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December 20, 2013 submittal--2010 SO2 NAAQS:
(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K),
(L) and (M).
January 25, 2016 submittal--2012 PM2.5 NAAQS:
(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K),
(L) and (M).
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[[Page 26016]]
Table 2--List of South Dakota Infrastructure Elements and Revisions That
the EPA Is Proposing To Take no action On
------------------------------------------------------------------------
Proposed for no action (Revision to be made in separate rulemaking
action.)
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December 20, 2013 submittal--2010 SO2 NAAQS:
(D)(i)(I) prongs 1 and 2.
January 25, 2016 submittal--2012 PM2.5 NAAQS:
(D)(i)(I) prongs 1 and 2.
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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, the 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 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, Feb. 16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where the EPA or an Indian tribe has demonstrated
that a tribe has jurisdiction. In those areas of Indian country, the
rule does not have tribal implications and will not impose substantial
direct costs on tribal governments or preempt tribal law as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Greenhouse
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 16, 2017.
Suzanne J. Bohan,
Acting Regional Administrator, Region 8.
[FR Doc. 2017-11573 Filed 6-5-17; 8:45 am]
BILLING CODE 6560-50-P