[Federal Register Volume 79, Number 230 (Monday, December 1, 2014)]
[Proposed Rules]
[Pages 71040-71057]
[FR Doc No: 2014-28301]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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

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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

-----------------------------------------------------------------------

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

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

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

technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting
comments, go to section I, General Information, of the SUPPLEMENTARY
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. EPA requests that if at all possible, you
contact the individual listed in the FOR FURTHER INFORMATION CONTACT
section to view the hard copy of the docket. You may view the hard copy
of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding
federal holidays.

FOR FURTHER INFORMATION CONTACT: Abby Fulton, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129.<PHONE_NUMBER>,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Definitions

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

Table of Contents

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

 I. General Information

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

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

II. Background

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

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

III. What is the scope of this Rulemaking?

    EPA is acting upon the SIP submissions from South Dakota that
address the infrastructure requirements of CAA sections 110(a)(1) and
110(a)(2) for the1997 and 2006 PM2.5, 2008 ozone, 2008 Pb,
and 2010 NO2 NAAQS. The requirement for states to make a SIP
submission of this type arises out of CAA section 110(a)(1). Pursuant
to section 110(a)(1), states must make SIP submissions ``within 3 years
(or such shorter period as the Administrator may prescribe) after the
promulgation of a national primary ambient air quality standard (or any
revision thereof),'' and these SIP submissions are to provide for the
``implementation, maintenance, and enforcement'' of such NAAQS. The
statute directly imposes on states the duty to make these SIP
submissions, and the requirement to make the submissions is not
conditioned upon EPA taking any action other than promulgating a new or
revised NAAQS. Section 110(a)(2) includes a list of specific elements
that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA; ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A; and
nonattainment new source review (NSR) permit program submissions to
address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\1\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is section 110(a)(2) requires
that ``each'' SIP submission must meet the list of requirements
therein, while EPA has long noted that this literal reading of the
statute is internally inconsistent and would create a conflict with the
nonattainment provisions in part D of title I of the CAA, which
specifically address nonattainment SIP requirements.\2\ Section
110(a)(2)(I) pertains to nonattainment SIP requirements and part D
addresses when attainment plan SIP submissions to address nonattainment
area requirements are due. For example, section 172(b) requires EPA to
establish a schedule for submission of such plans for certain
pollutants when the Administrator promulgates the designation of an
area as nonattainment, and section 107(d)(1)(B) allows up to two years,
or in some cases three years, for such designations to be
promulgated.\3\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
---------------------------------------------------------------------------

    \2\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
    \3\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
---------------------------------------------------------------------------

    Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a

plan'' to meet these requirements, EPA interprets the CAA to allow
states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, EPA can elect to act on such submissions either
individually or in a larger combined action.\4\ Similarly, EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
EPA has sometimes elected to act at different times on various elements
and sub-elements of the same infrastructure SIP submission.\5\
---------------------------------------------------------------------------

    \4\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' (78
FR 4339, Jan. 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 p.m.2.5 NAAQS,'' (78 FR 4337, Jan. 22, 2013) (EPA's final
action on the infrastructure SIP for the 2006 PM2.5
NAAQS).
    \5\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
---------------------------------------------------------------------------

    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, EPA notes that not every element of section
110(a)(2) would be relevant, or as relevant, or relevant in the same
way, for each new or revised NAAQS. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants
because the content and scope of a state's infrastructure SIP
submission to meet this element might be very different for an entirely
new NAAQS than for a minor revision to an existing NAAQS.\6\
---------------------------------------------------------------------------

    \6\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------

    EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements. As this example illustrates, each type of SIP submission
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\7\ EPA's
2013 Memo was developed to provide states with up-to-date guidance for
infrastructure SIPs for any new or revised NAAQS. Within this guidance,
EPA describes the duty of states to make infrastructure SIP submissions
to meet basic structural SIP requirements within three years of
promulgation of a new or revised NAAQS. EPA also made recommendations
about many specific subsections of section 110(a)(2) that are relevant
in the context of infrastructure SIP submissions.\8\ The guidance also
discusses the substantively important issues that are germane to
certain subsections of section 110(a)(2). Significantly, EPA interprets
sections 110(a)(1) and 110(a)(2) such that infrastructure SIP
submissions need to address certain issues and need not address others.
Accordingly, EPA reviews each infrastructure SIP submission for
compliance with the applicable statutory provisions of section
110(a)(2), as appropriate.
---------------------------------------------------------------------------

    \7\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
    \8\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
---------------------------------------------------------------------------

    As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's SIP
appropriately addresses the requirements of section 110(a)(2)(E)(ii)
and section 128. The 2013 Memo explains EPA's interpretation that there
may be a variety of ways by which states can appropriately address
these substantive statutory requirements, depending on the structure of
an individual state's permitting or enforcement program (e.g., whether
permits and enforcement orders are approved by a multi-member board or
by a head of an executive agency). However they are addressed by the
state, the substantive requirements of

section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and NSR pollutants, including
greenhouse gases (GHGs). By contrast, structural PSD program
requirements do not include provisions that are not required under
EPA's regulations at 40 CFR 51.166 but are merely available as an
option for the state, such as the option to provide grandfathering of
complete permit applications with respect to the 2012 PM2.5
NAAQS. Accordingly, the latter optional provisions are types of
provisions EPA considers irrelevant in the context of an infrastructure
SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, inter alia, the requirement that states have a
program to regulate minor new sources. Thus, EPA evaluates whether the
state has an EPA approved minor NSR program and whether the program
addresses the pollutants relevant to that NAAQS. In the context of
acting on an infrastructure SIP submission, however, EPA does not think
it is necessary to conduct a review of each and every provision of a
state's existing minor source program (i.e., already in the existing
SIP) for compliance with the requirements of the CAA and EPA's
regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction (SSM) that may be contrary to the CAA and
EPA's policies addressing such excess emissions; (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, Dec.
31, 2002, as amended by 72 FR 32526, June 13, 2007. (``NSR Reform'').
Thus, EPA believes it may approve an infrastructure SIP submission
without scrutinizing the totality of the existing SIP for such
potentially deficient provisions and may approve the submission even if
it is aware of such existing provisions.\9\ It is important to note
that EPA's approval of a state's infrastructure SIP submission should
not be construed as explicit or implicit re-approval of any existing
potentially deficient provisions that relate to the three specific
issues just described.
---------------------------------------------------------------------------

    \9\ By contrast, EPA notes that if a state were to include a new
provision in an infrastructure SIP submission that contained a legal
deficiency, such as a new exemption for excess emissions during SSM
events, then EPA would need to evaluate that provision for
compliance against the rubric of applicable CAA requirements in the
context of the action on the infrastructure SIP.
---------------------------------------------------------------------------

    EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up-to-date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
    For example, the 2013 Memo gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes its approach with respect to infrastructure
SIP requirements is based on a reasonable reading of sections 110(a)(1)
and 110(a)(2) because the CAA provides other avenues and mechanisms to
address specific substantive deficiencies in existing SIPs. These other
statutory tools allow EPA to take appropriately tailored action,
depending upon the nature and severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to issue a ``SIP call'' whenever the
agency determines that a state's SIP is substantially inadequate to
attain or maintain the NAAQS, to mitigate interstate transport, or to
otherwise comply with the CAA.\10\ Section 110(k)(6) authorizes EPA to
correct errors in past actions, such as past approvals of SIP
submissions.\11\ Significantly, EPA's determination that an action on a
state's infrastructure SIP submission is not the appropriate time and
place to address all potential existing SIP deficiencies does not
preclude EPA's subsequent reliance on provisions in section 110(a)(2)
as part of the basis for action to correct those deficiencies at a
later time. For example, although it may not be appropriate to require
a state to eliminate all existing inappropriate director's discretion
provisions in the course of acting on an infrastructure SIP submission,
EPA believes that section 110(a)(2)(A) may be among the statutory bases
that EPA relies upon in the course of addressing

such deficiency in a subsequent action.\12\
---------------------------------------------------------------------------

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

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

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

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

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

VI. Analysis of the State Submittals

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

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

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

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

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

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

PSD Requirements

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

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

Minor NSR

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Thus, the EPA Administrator has authority to bring suit to
immediately restrain an air pollution source that presents an imminent
and substantial endangerment to public health or welfare, or the
environment. If such action may not practicably assure prompt
protection, then the Administrator has authority to issue temporary
administrative orders to protect the public health or welfare, or the
environment, and such orders can be extended if EPA subsequently files
a civil suit. The 1990 Amendments to the Act modified Section 303.\27\
---------------------------------------------------------------------------

    \27\ Section 303 of CAA as modified in 1990 substituted the term
``public health or welfare, or the environment'' for ``the health of
persons,'' eliminated the requirement for state or local inaction as
a prerequisite to EPA initiating action, and lengthened the duration
of administrative orders from 24 hours to 60 days. The Senate Report
on the 1990 Amendments explained that:
    These amendments to section 303 of the Act, as well as parallel
(sic) amendments to section 113, have several purposes. The (sic)
amendments broaden the Administrator's (sic) authority to issue
emergency orders to abate threats to welfare and the environment, in
addition to the authority to respond to threats to ``the health of
persons.'' In addition, the amendments eliminate the 24- to 48-hour
time limit on the effectiveness of emergency orders. These changes
are necessary to enable the Administrator to address air pollution
emergencies in an adequate manner, and to conform the
Administrator's emergency authority under the Act to emergency
authorities under other environmental laws. See, TSCA section 208,
CERCLA section 106, RCRA section 7003, and CWA section 504.
Similarly, the deletion of the requirement that the Administrator
may not bring suit unless State or local authorities have failed to
act conforms the Act to other environmental laws.
    Broadening section 301 to include harm to the environment is
important to enable EPA to address emergency threats to ecosystems
in instances where there is no readily demonstrable immediate threat
to human health. For example, toxic emissions might be blowing
downwind from a facility into an undeveloped natural area and
threatening to impair that area's ecosystem. This amendment will
allow EPA to order the plant to take necessary steps to eliminate
the threat to flora and fauna. Deleting the unrealistically short
time limits on the duration of orders is necessary to ensure that
these orders are a viable enforcement tool. In order to protect
State interests and to prevent duplication of effort, this section
requires that the Administrator consult with the State and local
authorities before taking any action. The enforcement provision,
section 303(b), has been deleted as unnecessary because emergency
orders have been made enforceable under section 113.
    S. Rep. No. 101-228, 101 Cong., 1st Sess. 370. EPA's 1999
guidance on section 303 contains additional information regarding
the legislative history of this section. While the guidance
indicates it ``is intended to be used by EPA as internal guidance
only and does not establish any substantive or procedural rights''
we include the guidance in the proposed docket for this action as
background information. ``Transmittal Memo and Guidance Document on
Section 303 of the Clean Air Act,'' Eric. V. Schaeffer, Director,
Office of Regulatory Enforcement, EPA Office of Enforcement and
Compliance Assurance (April 1, 1999).
---------------------------------------------------------------------------

    EPA's 2013 Infrastructure SIP Guidance (for the 2008 ozone, 2010
NO2, 2010 sulfur dioxide, and all future NAAQS), represents
EPA's most recent guidance, which we've cited earlier in this notice
given its broad applicability, states that the best practice for states
is to submit, for inclusion in the SIP, the statutory or regulatory
provisions that provide authority comparable to CAA section 303 or to
cite and include a copy of such provisions, without including them in
the SIP, with a narrative of how they meet the requirements of section
110(a)(2)(G).\28\
---------------------------------------------------------------------------

    \28\ 2013 Infrastructure SIP Guidance, pp. 47-50.
---------------------------------------------------------------------------

    We propose to find that South Dakota's Infrastructure SIP
Submittals and certain State statutes provide for authority for the
State comparable to that granted to the EPA Administrator to act in the
face of an imminent and substantial endangerment to public's health or
welfare, or the environment.
    South Dakota's SIP submittals with regard to the section
110(a)(2)(G) emergency order requirements explain that:

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

causing imminent danger to human health or safety and requires
immediate action to protect human health or safety, the Secretary
shall order such person or persons to reduce or discontinue
immediately the emission of air contaminants.'' \29\
---------------------------------------------------------------------------

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

    Accordingly, we have reviewed South Dakota's statutory provisions
for evidence that the State has authorities comparable to those in
section 303. Our review included the provision discussed above, as well
as provisions in the current SDCL.\30\ None of these state laws have
been submitted for incorporation into the South Dakota SIP.
---------------------------------------------------------------------------

    \30\ October 29, 2014 conference call with Brian Gustafson,
Kyrik Rombough, Steven Blair, and Roxanne Giedd from the State of
South Dakota and Carl Daly, Monica Morales, Sara Laumann, and Abby
Fulton from EPA Region 8 regarding feedback on EPA's interpretation
of South Dakota's authority comparable to section 303. The State
indicated they generally agreed with our analysis.
---------------------------------------------------------------------------

    With regard to the authority to bring suit, SDCL 34A-10-1 extends
the right to the ``attorney general, any political subdivision of the
state, any instrumentality or agency of the state or of a political
subdivision thereof, any person partnership, limited liability company,
corporation, association, organization, or other legal entity'' to
``maintain an action'' for ``declaratory and equitable relief . . .
against any person . . . for the protection of the air, water, and
other natural resources and the public trust therein from pollution,
impairment, or destruction.'' In addition, SDCL 34A-10-2 states that
``[i]f administrative, licensing, or other proceedings, and judicial
review thereof are available by law, the agency may permit the attorney
general, any political subdivision of the state, any instrumentality or
agency of the state or of a political subdivision thereof, any person,
partnership, limited liability company, corporation, association,
organization, or other legal entity to intervene'' in that proceeding
involving ``conduct which has the effect of polluting, impairing, or
destroying the air, water, or other natural resources or the public
thrust therein.'' SDCL 21-10-1 through 21-10-9 also provide the State
with the authority regarding nuisances, including the authority to seek
specific remedies against nuisances (SDCL 21-10-5). The definitions of
acts and omissions constituting nuisances provide the State with broad
authority to bring suit against persons causing pollution and injury or
endangering the health or safety of others (SDCL 21-10-1).
    By using terms such as ``pollution, impairment, or destruction,''
and ``protection of the air, water, and other natural resources,''
these statutes (SDCL 34A-10-1, 34A-10-2) provide stated entities with
broad authority to bring suit against persons causing pollution of
varying degrees of urgency, including pollution that presents an
imminent and substantial endangerment.\31\ These provisions provide
arguably broader authority than what CAA section 303 provides to EPA,
as they do not by their terms first require the stated entities to
assert that the would-be enjoined pollution constitutes imminent and
substantial endangerment. We propose to find that these provisions,
while not specifically mentioning ``public health,'' ``welfare,'' or
the ``environment,'' are nonetheless comparable to section 303 and
broadly empower the State to address through civil action threats to
public health (e.g., from pollution), welfare (e.g., from nuisances,
and for protection of the air, water, and other natural resources), and
the environment (e.g., protection of natural resources from pollution,
impairment, or destruction) from any imminent and substantial
endangerment.
---------------------------------------------------------------------------

    \31\ Notably, South Dakota's definition of ``air pollutant,''
which is a term that triggers the authority contained in several of
the applicable provisions, contains a threshold injury requirement
relating to injury to human health, welfare or the environment.
Under South Dakota law, ``air pollutant'' is defined as, ``the
presence in the outdoor atmosphere of one or more contaminants in
such quantity and duration as is or tend to be injurious to human
health or welfare, animals or plant life, or property or would
interfere with the enjoyment of life or property.'' SDCL 34A-1-2(2).
---------------------------------------------------------------------------

    South Dakota's statutes also provide DENR's Secretary with the
authority to issue administrative orders and emergency rules, and
suspend state agency rules, to protect the public health, welfare, and
the environment under certain circumstances. SDCL 34A-1-45, as cited in
South Dakota's SIP submittals, authorizes that if the Secretary of the
DENR ``finds that any person is causing or contributing to air
pollution and that such pollution creates an emergency by causing
imminent danger to human health or safety and requires immediate action
to protect human health or safety,'' ``the secretary shall order the
person to reduce or discontinue immediately the emission of air
contaminants.'' The emergency order is effective immediately on service
upon the person responsible for the emission, and any person to whom
such an order is directed shall comply with the order immediately. SDCL
34A-10-2.5 provides authority for the DENR to apply to the court for an
injunction, including temporary injunctions, against any person who
fails to comply with such orders.
    Additionally, SDCL 1-26-5(3) authorizes any agency to adopt or
amend an emergency rule for reasons including ``imminent peril to the
public health, safety, or welfare . . . or because of the occurrence of
an unforeseen event at a time when the adoption of a rule in response
to such event by the emergency procedure is required to secure or
protect the best interests of the state or its residents.'' Subject to
applicable constitutional or statutory provisions, emergency rules are
``effective immediately upon filing with the secretary of state'' or at
another stated date; and ``[n]o emergency rule may remain in effect for
a period of no longer than ninety days'' (SDCL 1-26-8). South Dakota's
statutes also require that certain procedures be followed prior to
adoption of the emergency rule. ``[A]n agency shall publish a notice of
intent to adopt an emergency rule in the manner prescribed in section
1-26-4.1'' (SDCL 1-26-5). SDCL 1-26-4.1 provides that ``the notice of
intent to adopt an emergency rule shall be mailed to each person who
has made a timely request of the agency for advance notice of its rule-
making proceedings.'' SDCL requires that the agency ``serve on the
person specified in subdivision 1-26-4(1),\32\ each member of the
Interim Rules Committee and the director'' the information specified in
SDCL 1-26-5 and follow the notification and mailing requirements in
SDCL 1-25-4.1. Finally, SDCL 1-26-5(3) requires that notice of proposed
emergency rule served on the specified individuals shall include ``[a]
statement, with the reasons, that the emergency procedure is necessary:
because of imminent peril to

the public health, safety, or welfare; . . . or because of the
occurrence of an unforeseen event at a time when the adoption of a rule
in response to such event by the emergency procedure is required to
secure or protect the best interests of the state or its residents.''
While these provisions do not directly provide authority to issue
administrative orders to prevent air pollution that endangers the
environment and contain certain notification procedures not found in
section 303, they do provide regulatory authority for state agencies to
develop emergency rules for the protection of public health and
welfare, and welfare is commonly understood to include the elements of
what is covered by the term ``environment'' (see, e.g., CAA section
302(h), broadly defining ``effects on welfare'').
---------------------------------------------------------------------------

    \32\ SDCL 1-26-4(1) requires that the agency ``shall serve a
copy of a proposed rule and any publication described in section 1-
26-6.6 upon the departmental secretary, bureau commissioner, public
utilities commissioner, or constitutional officer to which it is
attached for the secretary's, commissioner's, or officer's written
approval to proceed.''
---------------------------------------------------------------------------

    We also note that another emergency management option under South
Dakota statutes involves the Governor's authorities. For example,
Chapter 34-48A, which covers Emergency Management, includes authority
for the Governor to issue orders in emergency situations.\33\
Additionally, in the event of an ``emergency'' \34\ that is beyond
local government capability, SDCL 34-48A-5(4) gives the Governor
authority to suspend rules under certain circumstances.\35\
---------------------------------------------------------------------------

    \33\ SDCL 34-48A-9. ``Power to make orders. In performing his
duties under this chapter, and to effect its policy and purpose, the
Governor is further authorized and empowered to make, amend, and
rescind the necessary orders to carry out the provisions of this
chapter within the limits of the authority conferred upon him
herein, with due consideration of the plans of the federal
government.''
    \34\ SDCL 34-48A-1(3) defines emergency as ``any natural,
nuclear, man-made, war- related, or other catastrophe producing
phenomena in any part of the state which in the determination of the
Governor requires the commitment of less than all available state
resources to supplement local efforts of political subdivisions of
the state to save lives and to protect property, public health, and
safety or to avert or lessen the threat of a disaster.''
    \35\ SDCL 34-48A-5(4) gives the Governor the authority to
``suspend the provisions of any rules of any state agency if strict
compliance with the provisions of the rule would in any way prevent,
hinder, or delay necessary action in managing a disaster . . . or
emergency, including . . . air contamination . . . which is
determined by the Governor to require state or state and federal
assistance or actions to supplement the recovery efforts of local
government in alleviating the damage, loss, hardship, or suffering
caused thereby.'' The rules suspended by the Governor remain
suspended for six months and may be restored for one or more
successive six-month periods if the Governor declares the conditions
persist (SDCL 34-48A-5).
---------------------------------------------------------------------------

    While no single South Dakota statute mirrors the authorities of CAA
section 303, we propose to find that the combination of SDCL provisions
discussed above provide for authority comparable to section 303 to
immediately bring suit to restrain, issue emergency executive orders
against, and use special rule adoption and suspension procedures for
applicable emergencies to take prompt administrative action against,
any person causing or contributing to air pollution that presents an
imminent and substantial endangerment to public health or welfare, or
the environment. Consistent with EPA's 2013 Infrastructure SIP
Guidance, the narratives provided in South Dakota's SIP submittals
about the State's authorities applying to emergency episodes (as
discussed above), plus additional South Dakota statutes that we have
considered, we propose that they are sufficient to meet the authority
requirement of CAA section 110(a)(2)(G).
    States must also have adequate contingency plans adopted into their
SIP to implement the air agency's emergency episode authority (as
discussed above). This can be met by submitting a plan that meets the
applicable requirements of 40 CFR part 51, subpart H for the relevant
NAAQS if the NAAQS is covered by those regulations. Rules contained in
ARSD and South Dakota's SIP adopt by reference the criteria in 40 CFR
51.151 as the air quality episode plan to address activities causing
imminent and substantial endangerment to public health, including a
contingency plan to implement the emergency episode provisions of the
SIP. As of the date of South Dakota's submittal, EPA has not
established priority classification for a significant harm level for
PM2.5. As DENR explains in its SIP submittals, once EPA
promulgates such rules, DENR will adopt them into ARSD 74:36:03 (Air
quality episodes).
    Subpart H of 40 CFR part 51 requires states to classify regions and
to develop contingency plans (also known as emergency episode plans)
after ambient concentrations of certain criteria pollutants in an area
have exceeded specified levels. For example, if ambient concentrations
of nitrogen dioxide in an area have exceeded 0.06 ppm (annual
arithmetic mean), then the area is classified as a Priority I region,
and the state must develop a contingency plan that meets the
requirements of sections 51.151 and 51.152. However, Subpart H does not
currently address requirements for the 24-hour PM2.5
standard.
    In 2009, EPA issued a guidance memorandum that, among other things,
recommended an approach for states to address the contingency plan
requirements of 110(a)(2)(G) with respect to the 2006 PM2.5
NAAQS.\36\ The guidance, in Attachment A, suggested that states develop
a contingency plan if, based on the most recent three calendar years of
data, an area within the state had monitored and recorded a 24-hour
PM2.5 level greater than 140.4 [mu]g/m\3\. For states that
were to develop a contingency plan, the guidance recommended states set
priority and emergency levels consistent with requirements of 40 CFR
51.150 through 51.153. EPA notes that section 51.153 requires periodic
reevaluation of priority classifications based on the three most recent
years of air quality data.
---------------------------------------------------------------------------

    \36\ Memorandum from William T. Harnett, Director, Air Quality
Policy Division, to Regional Air Division Directors, Guidance on SIP
Elements Required under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) Standards (NAAQS), at p. 6-7
(Sep. 25, 2009).
---------------------------------------------------------------------------

    South Dakota has recorded no levels of ambient air concentrations
in the three most recent complete calendar years--2011, 2012, and
2013--that exceed the 2009 guidance memorandum \37\ recommended levels
for states to develop a contingency plan for PM2.5. However,
on September 4, 2009 a continuous PM2.5 air monitor operated
by the State of South Dakota in Wind Cave National Park registered a
24-hour level of 303.6 [mu]g/m\3\. The monitor in question was a
special purpose Federal Equivalent Method monitor collocated with a
Federal Reference Method (FRM) State and Local Air Monitoring Stations
(SLAMS) monitor. The SLAMS FRM was designated as the primary monitor at
the site, and recorded 120.5 [mu]g/m\3\ as the official regulatory
value for the monitoring station that day. On the day the secondary
monitor recorded a value of 303.6 [mu]g/m\3\, the National Park Service
conducted a prescribed burn in the Wind Cave National Park. A
discussion including details of the event as well as monitoring data
are contained within a memo to this docket. Given the unique
circumstances of this event and taking into account that the official
regulatory value fell below the recommended level for developing a
contingency plan, and that the last three years of data also fall below
the recommended level, EPA believes it is appropriate to interpret
110(a)(2)(G) as not requiring development of a contingency plan.
However, this does not imply that other, future

circumstances in the state cannot trigger this requirement.
---------------------------------------------------------------------------

    \37\ Memorandum from William T. Harnett, Director, Air Quality
Policy Division, to Regional Air Division Directors, Guidance on SIP
Elements Required under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) Standards (NAAQS), at p. 6-7
(Sep. 25, 2009).
---------------------------------------------------------------------------

    Revisions to the South Dakota Air Quality Episodes rules ARSD
74:36:03:01 ``Air pollution emergency episode'' and ARSD 74:36:03:02
``Episode emergency contingency plan'' were most recently approved on
June 27, 2014 (79 FR 36425). We find that South Dakota's air pollution
emergency rules include PM2.5, ozone, and NO2;
establish stages of episode criteria; provide for public announcement
whenever any episode stage has been determined to exist; and specify
emission control actions to be taken at each episode stage, consistent
with the EPA emergency episode SIP requirements set forth at 40 CFR
part 51 subpart H (prevention of air pollution emergency episode) for
particulate matter, ozone, and NO2.
    As noted in the October 14, 2011 guidance,\38\ based on EPA's
experience to date with the Pb NAAQS and designating Pb nonattainment
areas, EPA expects that an emergency episode associated with Pb
emissions would be unlikely and, if it were to occur, would be the
result of a malfunction or other emergency situation at a relatively
large source of Pb. Accordingly, EPA believes the central components of
a contingency plan would be to reduce emissions from the source at
issue and communicate with the public as needed. We note that 40 CFR
part 51, subpart H (51.150-51.152) and 40 CFR part 51, Appendix L do
not apply to Pb.
---------------------------------------------------------------------------

    \38\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements Required Under Sections 110(a)(1) and 110(a)(2) for
the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS).''
Steve Page, OAQPS Director, October 14, 2011, at p 13.
---------------------------------------------------------------------------

    Based on the above analysis, we propose approval of South Dakota's
SIP as meeting the requirements of CAA section 110(a)(2)(G) for the
1997 and 2006 PM2.5, 2008 Pb, 2008 ozone, and 2010
NO2 NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs
provide for revision of such plan: (i) From time to time as may be
necessary to take account of revisions of such national primary or
secondary ambient air quality standard or the availability of improved
or more expeditious methods of attaining such standard, and (ii),
except as provided in paragraph (3)(C), whenever the Administrator
finds on the basis of information available to the Administrator that
the SIP is substantially inadequate to attain the NAAQS which it
implements or to otherwise comply with any additional requirements
under this [Act].
    South Dakota's statutory provision at SDCL 34A-1-6 gives DENR
sufficient authority to meet the requirements of 110(a)(2)(H).
Therefore, we propose to approve South Dakota's SIP as meeting the
requirements of CAA section 110(a)(2)(H).
    10. Consultation with government officials, public notification,
PSD and visibility protection: Section 110(a)(2)(J) requires that each
SIP ``meet the applicable requirements of section 121 of this title
(relating to consultation), section 127 of this title (relating to