[Federal Register: July 31, 2009 (Volume 74, Number 146)]
[Proposed Rules]
[Page 38161-38164]
[DOCID:fr31jy09-23]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0199; FRL-8938-4]

Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Determination of Clean Data for the 1997 Fine Particulate
Matter Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to determine that the Baltimore, Maryland and
Hagerstown-Martinsburg, Maryland (MD)-West Virginia (WV) nonattainment
areas for the 1997 fine particulate matter (PM2.5) National
Ambient Air Quality Standard (NAAQS) have clean data for the 1997
PM2.5 NAAQS. This proposed determination is based upon
quality assured, quality controlled, and certified ambient air
monitoring data showing that these areas have monitored attainment of
the 1997 PM2.5 NAAQS based on the 2006-2008 data. In
addition, quality controlled and quality assured monitoring data for
2009 that are available in the EPA Air Quality System (AQS) database,
but not yet certified, show that these areas continue to meet the 1997
PM2.5 NAAQS. If this proposed determination is made final,
the requirements for these areas to submit an attainment demonstration,
associated reasonably available measures, a reasonable further progress
plan, contingency measures, and other planning State Implementation
Plans (SIPs) related to attainment of the standard shall be suspended
for so long as each of these areas continue to meet the 1997
PM2.5 NAAQS.

DATES: Written comments must be received on or before August 31, 2009.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2009-0199 by one of the following methods:
    A. www.regulations.gov. Follow the online instructions for
submitting comments.
    B. E-mail<EMAIL_ADDRESS>    C. Mail: EPA-R03-OAR-2009-0199, Cristina Fernandez, Chief, Air
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2009-0199. 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 e-mail.
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 e-
mail comment directly to EPA without going through www.regulations.gov,
your e-mail 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.
    Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT: Jacqueline Lewis,<PHONE_NUMBER>, or
by e-mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to
aid in locating information in this preamble.

I. What Action Is EPA Taking?
II. What Is the Effect of This Action?
III. What Is the Background for This Action?
IV. What Is EPA's Analysis of the Relevant Air Quality Data?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    EPA is proposing to determine that the Baltimore and the Maryland
portion of the Hagerstown-Martinsburg, MD-WV PM2.5
nonattainment areas have clean data for the 1997 PM2.5
NAAQS. This determination is based upon quality assured, quality
controlled, and certified ambient air monitoring data showing that
these areas have monitored attainment of the 1997 PM2.5
NAAQS based on the 2006-2008 data. In addition, quality controlled and
quality assured monitoring data for 2009 that are available in the EPA
AQS database, but not yet certified, show that these areas continue to
meet the 1997 PM2.5 NAAQS.

II. What Is the Effect of This Action?

    If this determination is made final, under the provisions of EPA's
PM2.5 implementation rule (see 40 CFR section 51.1004(c)),
the requirements for the Baltimore and the Maryland portion of the
Hagerstown-Martinsburg, MD-WV PM2.5 nonattainment areas to
submit an attainment demonstration, associated reasonably available
control measures, a reasonable further progress plan, contingency
measures, and any other planning SIPs related to attainment of the 1997
PM2.5 NAAQS would be suspended for so long as each area
continues to meet the 1997 PM2.5 NAAQS.
    As further discussed below, the proposed determination for the
Baltimore, MD and for the Maryland portion of the Hagerstown-
Martinsburg, MD-WV nonattainment areas would: (1) Suspend the
requirements to submit for each area an attainment demonstration,
associated reasonably available control measures (RACM) (including
reasonably available control technologies (RACT)), a reasonable further
progress (RFP) plan, contingency measures, and any other planning SIPs
related to attainment of the 1997 PM2.5 NAAQS; (2) continue
until such time, if any, that EPA subsequently determines that each
area have violated the 1997 PM2.5 NAAQS; (3) be separate
from, and not influence or otherwise affect, any future designation
determination or requirements for the Baltimore and Hagerstown-
Martinsburg, MD-WV PM2.5 nonattainment areas based on the
2006 PM2.5 NAAQS; and (4) remain in effect regardless of
whether EPA designates these areas as nonattainment for purposes of the
2006 PM2.5 NAAQS. Furthermore, as described below, any such
final determinations would not be equivalent to the redesignation of
these areas to attainment based on the 1997 PM2.5 NAAQS.
    If this rulemaking is finalized and EPA subsequently determines,
after notice-and-comment rulemaking in the Federal Register, that the
areas have violated the 1997 PM2.5 NAAQS, the basis for the
suspension of the specific requirements, set forth at 40 CFR section
51.1004(c), would no longer exist, and these areas would thereafter
have to address the pertinent requirements.
    The determination that EPA proposes with this Federal Register
notice, that the air quality data shows attainment of the 1997
PM2.5 NAAQS, is not equivalent to the redesignation of these
areas to attainment. This proposed action, if finalized, would not
constitute a redesignation to attainment under section 107(d)(3) of the
Clean Air Act (CAA), because we would not yet have an approved
maintenance plan for these areas as required under section 175A of the
CAA, nor a determination that these areas have met the other
requirements for redesignation. The designation status of these areas
would remain nonattainment for the 1997 PM2.5 NAAQS until
such time as EPA determines that these areas meet the CAA requirements
for redesignation to attainment.
    This proposed action, if finalized, is limited to a determination
that the Baltimore and the Maryland portion of the Hagerstown-
Martinsburg MD-WV PM2.5 nonattainment areas have clean data
for the 1997 PM2.5 NAAQS. The 1997 PM2.5 NAAQS
became effective on July 18, 1997 (62 FR 36852) and are set forth at 40
CFR section 50.7. The 2006 PM2.5 NAAQS, which became
effective on December 18, 2006 (71 FR 61144) are set forth at 40 CFR
section 50.13. EPA is currently in the process of making designation
determinations, as required by CAA section 107(d)(2), for the 2006
PM2.5 NAAQS. At this point, EPA has not made any designation
determination for the Baltimore and Hagerstown-Martinsburg MD-WV
PM2.5 nonattainment areas based on the 2006 PM2.5
NAAQS. This proposed determination, and any final determination, will
have no effect on, and is not related to, any future designation
determination that EPA may make based on the 2006 PM2.5
NAAQS for the Baltimore and Hagerstown-Martinsburg, MD-WV
PM2.5 nonattainment areas. Conversely, any future
designation determination of the Baltimore and Hagerstown-Martinsburg,
MD-WV nonattainment areas, based on the 2006 PM2.5 NAAQS,
will not have any effect on the determination proposed by this notice.
    If this proposed determination is made final and the Baltimore and
the Maryland portion of the Hagerstown-Martinsburg, MD-WV nonattainment
areas continue to demonstrate attainment with the 1997 PM2.5
NAAQS, the requirements for the nonattainment areas to submit an
attainment demonstration, associated reasonably available control
measures, a reasonable further progress plan, contingency measures, and
any other planning SIPs related to attainment of the 1997
PM2.5 NAAQS would remain suspended, regardless of whether
EPA designates these areas as nonattainment areas for purposes of the
2006 PM2.5 NAAQS. Once these areas are designated for the
2006 NAAQS, they will have to meet all applicable requirements for that
designation.

III. What Is the Background for This Action?

    On July 18, 1997 (62 FR 36852), EPA established a health-based
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\)
based on a 3-year average of annual mean PM2.5
concentrations, and a twenty-four hour standard of 65 [mu]g/m\3\ based
on a 3-year average of the 98th percentile of 24-hour concentrations.
EPA established the standards based on significant evidence and
numerous health studies demonstrating that serious health effects are
associated with exposures to particulate matter. The process for
designating areas following promulgation of a new or revised NAAQS is
contained in section 107(d)(1) of the CAA. EPA and State air quality
agencies initiated the monitoring process for the 1997 PM2.5
NAAQS in 1999, and developed all air quality monitors by January 2001.
On January 5, 2005 (70 FR 944), EPA published its air quality
designations and classifications for the 1997 PM2.5 NAAQS
based upon air quality monitoring data from those monitors for calendar
years 2001-2003. These designations became effective on April 5, 2005.
The Baltimore and Hagerstown-Martinsburg, MD-WV nonattainment areas
were designated nonattainment for the 1997 PM2.5 NAAQS (see
40 CFR part 81).

IV. What Is EPA's Analysis of the Relevant Air Quality Data?

    EPA has reviewed the ambient air monitoring data for
PM2.5, consistent with the requirements contained in 40 CFR
part 50 and recorded in the EPA AQS database for the Baltimore and
Hagerstown-Martinsburg, MD-WV PM2.5 nonattainment areas from
2006 through the present time. On the basis of that review, EPA has
concluded that these areas meet the 1997 PM2.5 NAAQS based
on the 2006-2008 data. In addition, quality controlled and quality
assured monitoring data for 2009 that are available in the EPA AQS
database, but not yet certified, show these areas continue to attain
the 1997 PM2.5 NAAQS.
    Under EPA regulations at 40 CFR Part 50, section 50.7:
    (1) The annual primary and secondary PM2.5 standards are
met when the annual arithmetic mean concentration, as determined in
accordance with 40 CFR Part 50, Appendix N, is less than or equal to
15.0 [mu]g/m\3\.
    (2) The 24-hour primary and secondary PM2.5 standards
are met when the 98th percentile 24-hour concentration, as determined
in accordance with 40 CFR Part 50, Appendix N, is less than or equal to
65 [mu]g/m\3\.
    Table 1.a shows the design values for the 1997 Annual
PM2.5 NAAQS for the Baltimore nonattainment area monitors
for the years 2006-2008. Table 1.b shows the design values for the 1997
Annual PM2.5 NAAQS for the Hagerstown-Martinsburg, MD-WV
nonattainment area monitors for the years 2006-2008.

   Table 1.a--Design Values for Counties in the Baltimore, MD Nonattainment Area for 1997 PM2.5 NAAQS--Annual
                                                    Standard
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                                                                               1997 annual
                        Location                            AQS site ID         attainment     2006-2008  design
                                                                                standard            values
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Anne Arundel County....................................        24-003-1003                 15               13.3
Baltimore County.......................................        24-005-1007                 15               12.6
Baltimore County.......................................        24-005-3001                 15               13.6
Harford County.........................................        24-025-1001                 15               11.7
Baltimore City.........................................        24-510-0006                 15               12.8
Baltimore City.........................................        24-510-0007                 15               12.9
Baltimore City.........................................        24-510-0008                 15                 14
Baltimore City.........................................        24-510-0035                 15               14.5
Baltimore City.........................................        24-510-0040                 15                 14
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 Table 1.b--Design Values for the Hagerstown-Martinsburg, MD-WV Nonattainment Area for 1997 PM2.5 NAAQS--Annual
                                                    Standard
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                                                                               1997 Annual
                        Location                            AQS site ID         attainment      2006-2008 design
                                                                                standard            values
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Washington County, MD..................................        24-043-0009                 15               12.2
Berkeley County, WV....................................        54-003-0003                 15               14.9
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    Table 2.a shows the design values for the 1997 24-Hour
PM2.5 NAAQS for these same monitors and the same 3-year
period. Table 2.b shows the design values for the 1997 24-Hour
PM2.5 NAAQS for these same monitors and the same 3-year
period.

   Table 2.a--Design Values for Counties in the Baltimore, MD Nonattainment Area for 1997 PM2.5 NAAQS--24-Hour
                                                    Standard
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                                                                               1997 Annual
                        Location                            AQS site ID         attainment      2006-2008 design
                                                                                standard            values
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Anne Arundel County....................................        24-003-1003                 65                 34
Baltimore County.......................................        24-005-1007                 65                 32
Baltimore County.......................................        24-005-3001                 65                 33
Harford County.........................................        24-025-1001                 65                 29

Baltimore City.........................................        24-510-0006                 65                 33
Baltimore City.........................................        24-510-0007                 65                 33
Baltimore City.........................................        24-510-0008                 65                 35
Baltimore City.........................................        24-510-0035                 65                 34
Baltimore City.........................................        24-510-0040                 65                 34
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 Table 2.b--Design Values for the Hagerstown-Martinsburg, MD-WV Nonattainment Area for 1997 PM2.5 NAAQS--24-Hour
                                                    Standard
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                                                                               1997 24-Hour
                        Location                            AQS site ID         attainment      2005-2007 design
                                                                                standard            values
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Washington County, MD..................................        24-043-0009                 65                 30
Berkeley County, WV....................................        54-003-0003                 65                 31
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    EPA's reviews of these data indicate that the Baltimore, MD and
Hagerstown-Martinsburg, MD-WV PM2.5 nonattainment areas have
met and continue to meet the 1997 PM2.5 NAAQS. EPA is
soliciting public comments on the issues discussed in this document.
These comments will be considered before taking final action. Please
note that if EPA received adverse comment on an amendment, paragraph,
or section of this rule and if that provision may be severed from the
remainder of the rule, EPA may adopt as final those provisions of the
rule that are not the subject of an adverse comment.

V. What's EPA's Proposed Action?

    EPA is proposing to determine that the Baltimore and the Maryland
portion of the Hagerstown-Martinsburg, MD-WV nonattainment areas for
the 1997 PM2.5 NAAQS have clean data for the 1997
PM2.5 NAAQS. As provided in 40 CFR section 51.1004(c), if
EPA finalizes this determination, it would suspend the requirements for
these areas to submit an attainment demonstration, associated
reasonably available control measures, a reasonable further progress
plan, contingency measures, and any other planning SIPs related to
attainment of the 1997 PM2.5 NAAQS so long as these areas
continues to meet the 1997 PM2.5 NAAQS.

VI. What Are the Statutory and Executive Order Reviews?

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely proposes to approve state law as
meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed determination that the Maryland portion
of the Hagerstown-Martinsburg and the Baltimore nonattainment areas
have clean data for the 1997 PM2.5 standard does not have
tribal implications as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is not approved to apply in Indian
country located in the state, and EPA notes that it will not impose
substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Particulate
matter, Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: July 23, 2009.
Judith M. Katz,
Acting Regional Administrator, Region III .
[FR Doc. E9-18394 Filed 7-30-09; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 79, Number 124 (Friday, June 27, 2014)]
[Rules and Regulations]
[Pages 36419-36428]
[FR Doc No: 2014-14031]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2014-0241; FRL-9912-24-Region 8]

Partial Approval and Partial Disapproval and Promulgation of Air
Quality Implementation Plans; South Dakota; Revisions to South Dakota
Administrative Code; Permit: New and Modified Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to partially approve and partially disapprove State
Implementation Plan (SIP) revisions submitted by the State of South
Dakota on June 14, 2010, June 20, 2011, and July 29, 2013. All three
SIP submittals revise the portion of the Administrative Rules of South
Dakota (ARSD) that pertain to the issuance of South Dakota air quality
permits. In addition, the June 14, 2010 submittal revises certain
definitions and dates of incorporation by reference. The June 14, 2010
submittal contains new, amended and renumbered rules; the June 20, 2011
submittal contains new rules; and the July 29, 2013 submittal contains
amended rules. In this rulemaking, we are taking final action on all
portions of the June 14, 2010 submittal, except for those portions of
the submittal which do not belong in the SIP. We are also taking final
action on portions of the June 20, 2011 submittal that were not acted
on in our April 18, 2014 rulemaking regarding greenhouse gases and the
State's Prevention of Significant Deterioration (PSD) program. We are
taking final action on portions of the July 29, 2013 submittal that
supersede portions of the two previous submittals; the remainder of the
July 29, 2013 submittal will be acted on at a later date. This action
is being taken under section 110 of the Clean Air Act (CAA).

DATES: This final rule is effective July 28, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2014-0241. All documents in the docket are listed in
the www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street
Denver, Colorado 80202-1129. EPA requests you contact the individual
listed in the FOR FURTHER INFORMATION CONTACT section to view the hard
copy of the docket. You may view the hard copy of the docket Monday
through Friday, 8:00 a.m. to 4:00 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, Mailcode 8P-
AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129,<PHONE_NUMBER>, or<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Response to Comments
III. Basis for our Final Action
IV. Final Action
V. Statutory and Executive Orders Review

Definitions

    For the purpose of this document, we are giving meaning to certain
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
    (ii) The initials ARSD mean or refer to the Administrative Rules of
South Dakota.
    (iii) The initials DENR mean the Department of Environment and
Natural Resources.
    (iv) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
    (v) The words minor NSR mean NSR established under section
110(a)(2)(C) of the Act and 40 CFR 51.160 through 51.164.
    (vi) The initials NAAQS mean or refer to National Ambient Air
Quality Standards.
    (vii) The initials NSR mean new source review, a phrase intended to
encompass the stationary source regulatory programs that regulate the
construction and modification of stationary sources as provided under
CAA section 110(a)(2)(C), CAA Title I, parts C and D, and 40 CFR 51.160
through 51.166.
    (viii) The initials PSD mean or refer to Prevention of Significant
Deterioration.
    (ix) The initials SIP mean or refer to State Implementation Plan.
    (x) The words State or South Dakota mean the State of South Dakota,
unless the context indicates otherwise.

I. Background

    The CAA (section 110(a)(2)(C)), 40 CFR 51.160, and the other
statutory and regulatory provisions discussed in this final notice,
require states to have legally enforceable procedures in their SIPs to
prevent construction or modification of a source if it would violate
any SIP control strategies or interfere with attainment or maintenance
of the national ambient air quality standards (NAAQS). Such minor new
source review (NSR) programs are for pollutants from stationary sources
that do not require PSD or nonattainment NSR permits. A state may
customize the requirements of its minor NSR program as long as the
program meets the minimum statutory and regulatory requirements.
    On June 14, 2010, South Dakota submitted revisions to its minor
source NSR program. The June 14, 2010 submittal included: (1) Revisions
to the definitions associated with the Air Pollution Control Program to
ensure the definitions are current and consistent with other chapters
in the regulations. These revisions include: grammatical changes,
renumbering, modified definitions, new definitions and deleted
definitions; (2) Revisions to the date of federal regulations
referenced throughout ARSD Article 74:36; (3) Addition of a
construction permit program for new minor sources and minor
modifications to existing sources, created by adding new Chapter
74:36:20 (Construction Permits for New Sources or Modifications); and
(4) Revisions to the minor source operating permit programs to
incorporate the changes associated with the new proposed construction
permit program.
    In South Dakota's regulations in ARSD Article 74:36 that are
currently approved into the SIP, the minor source construction permit
and operating permit programs are combined so, in practice, a source
receives one permit from the State which serves as both a construction
and operating permit.\1\ The revisions in the June 14, 2010 submittal
separate the two programs into a new minor source construction permit
program and a minor source operating permit program. Under the new
revisions, a source would first apply for a construction permit before
applying for an operating permit. A cross-walk table, which discusses
the rule revisions in Article 74:36 individually, and the action we are
proposing, is included in the docket for this rulemaking.
---------------------------------------------------------------------------

    \1\ For major sources and major modifications, the State already
has two SIP-approved construction permit programs (PSD and
nonattainment NSR) and, separately for major sources, a title V
operating permit program that has been approved through the title V
(not the SIP) process.
---------------------------------------------------------------------------

    South Dakota's June 14, 2010 submittal also contains rule revisions
that are not included in SIPs. These rules, which we are not taking
action on here (i.e., New Source Performance Standards, operating
permits for part 70 sources, etc.), are outlined in the cross-walk
table located in the docket for this rulemaking.
    South Dakota's June 20, 2011, submittal includes the following rule
revisions: (1) Revises Sections 74:36:01:01, 74:36:01:08, 74:36:01:15
and 74:36:09:02 related to regulation of greenhouse gases (revisions to
Sections 74:36:01:08, 74:36:01:15 and 74:36:09:02 to comply with EPA's
Greenhouse Gas Tailoring Rule were previously acted on); \2\ EPA is
taking final action on 74:36:01:01 in this rulemaking); (2) Revises
Chapter 74:36:20 by revising Section 74:36:20:02 (Construction Permits
Required); and (3) Adds new Section 74:36:20:02.01 (Initiating
Construction Prior to Permit Issuance). Section 74:36:20:02.01 allows
sources who meet certain conditions to start construction prior to
receiving a permit provided they meet the requirements in that section.
EPA is taking final action on 74:36:20:02 and 74:36:20:02.01 in this
rulemaking.\3\
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    \2\ On February 11, 2014 (79 FR 8130) EPA proposed action on
these provisions. EPA finalized its action on April 18, 2014 (79 FR
21852).
    \3\ Under a consent decree, by May 30, 2014, EPA is required to
sign a notice of final action to approve, disapprove, approve in
part and disapprove in part, or conditionally approve this June 20,
2011 SIP submittal. WildEarth Guardians v. EPA, Civil Action No.
1:12-cv-03307 (D. Colo.).
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    With respect to South Dakota's July 29, 2013 submittal, we are only
taking final action on the following revisions: (1) The removal of
section 74:36:04:03.01 (Minor Source Operating Permit Variance); and
(2) Revisions to section 74:36:10 (New Source Review).
    In our April 16, 2014 proposed action (79 FR 21424), we proposed
to: (1) Approve 74:36:01:01 (Definitions); 74:36:02 (Ambient Air
Quality); 74:36:03 (Air Quality Episodes); 74:36:04 (Operating Permits
for Minor Sources); 74:36:10 (New Source Review); 74:36:11 (Performance
Testing); 74:36:12 (Control of Visible Emissions); 74:36:13 (Continuous
Emissions Monitoring); 74:36:18 (Regulations for State Facilities in
the Rapid City Area); and 74:36:20 (Construction Permits for New
Sources or Modifications); 74:36:01:01(73) (Subject to Regulation); the
deletion of 74:36:04:03.01 (Minor Source Operating Permit Variance);
(2) Disapprove 74:36:20:02.01 (Initiating Construction Prior to Permit
Issuance); the phrase: ``unless it meets the requirements in
74:36:20:02.01'' in 74:36:04:20:02 (Construction Permit Required); (3)
Not take action on 74:36:05 (Operating Permits for Part 70 Sources);
74:36:07 (New Source Performance Standards); 74:36:08 (National
Emission Standards for Hazardous Air Pollutants); 74:36:09 (Prevention
of Significant Deterioration); 74:36:16 (Acid Rain Program); and
74:36:19 (Mercury Budget Trading Program).
    We provided a detailed explanation of the bases for our proposal.
See 79 FR 21426-21429. We invited comment on all aspects of our
proposal and provided a 30-day comment period. The comment period ended
on May 16, 2014.
    In this action, we are responding to the comments we received and
taking final rulemaking action on the rules from the State's June 14,
2010, June 20, 2011, and July 29, 2013 submittals.

II. Response to Comments

    In response to our April 16, 2014 proposed rulemaking, we received
comments from Department of Environment and Natural Resources (DENR)
Secretary Steven M. Pirner on behalf of the State of South Dakota. In
this section, we summarize these comments and provide our responses.
    Comment: The comments explain that DENR submitted a draft copy of
ARSD 74:36:20:02.01 in December 2010 to EPA for informal comments prior
to beginning the State's formal rule making process; and that EPA
provided preliminary comments back to DENR via email on January 11,
2011. DENR's comments on our proposal suggest that DENR notified EPA
that those preliminary concerns were addressed in ARSD
74:36:20:02.01(1), 74:36:20:02.01(2) and 74:36:20:02.01(6). DENR's
comments further explain that it believed EPA's concerns were addressed
at that time, since EPA did not provide the same comment during the
public notice phase of the rule making.
    Response: EPA disagrees with this comment. While we aim to provide
comments before and during a state's rule making process, the CAA
neither requires that EPA comment on proposed SIP rules, nor does it
preclude EPA from carrying out its statutory duty to disapprove an
inadequate SIP if EPA does not provide comments to a state. The notion
that EPA's silence suggests a SIP is approvable--simply because EPA did
not comment during the State's formal rule making process--has no
support in the Act, it is contrary to the purposes of the Act and EPA's
express obligation to approve only SIP submittals that meet the
requirements of

the Act, as explained elsewhere in this final action. Moreover, nothing
in EPA's preliminary comments suggested that the State's draft rules
would be approvable if the State were to make the suggested changes.\4\
---------------------------------------------------------------------------

    \4\ Email from Laurel Dygowski, South Dakota SIP Program
Manager, EPA Region 8 Air Program, to Brian Gustafson, South Dakota
(January 11, 2011).
---------------------------------------------------------------------------

    DENR comments indicate that it provided notification to us that our
preliminary concerns were addressed by provisions in ARSD
74:36:20:02.01(1), 74:36:20:02.01(2) and 74:36:20:02.01(6). The comment
does not cite to a particular communication from the State. Therefore,
we are unclear what notification DENR is referring to. We are aware of
one email from the State regarding this topic; \5\ however, that email
summarizes other provisions in the State rules.
---------------------------------------------------------------------------

    \5\ Email from Kyrk Rombough, Natural Resource Engineering
Director DENR Air Quality Program, to Kevin Leone, Environmental
Scientist, EPA Region 8 Air Program (January 18, 2011).
---------------------------------------------------------------------------

    Comment: DENR provided an analysis of the public comments received
on the State's proposed rule, and disagreed with ``EPA's implication
that all public commenters were concerned about allowing construction
prior to receiving a construction permit.''
    Response: We disagree with the assertions in this comment. The
comment does not cite to specific language in the proposed notice;
however, we assume the commenter is referring to Footnote 5 in our
proposed rulemaking where we stated: ``[t]he State also received public
comments from 13 individuals on this issue and related concerns.'' 79
FR 21428. EPA did not intend to interpret the meaning or intent of the
public comments on the State's proposed rule, but simply included this
footnote to point out that the State received adverse comments during
its rulemaking process that expressed concerns regarding the State's
proposed rules.
    Comment: DENR suggests that EPA is being arbitrary and capricious
in enforcing the language in 40 CFR 51.161 for public participation in
minor NSR permitting programs. DENR indicates that there are ``EPA
approved state implementation plans that have been in place for many
years which do not require a 30-day public notice for any non-PSD
construction permits,'' and provides as an example ``Iowa's state
implementation plan which is South Dakota's neighbor and competitor for
economic development projects.'' The comment states that ``EPA cannot
give one state an advantage over another in economic development by
requiring inconsistent mandates to SIPs.'' DENR's comment suggests that
even if EPA's argument had validity, DENR is required by its
regulations to notice the construction permit ``before the applicant
can operate any equipment which emits air pollutants into the air.''
    Response: EPA disagrees with this comment. We apply applicable CAA
provisions and EPA regulations to determine the approvability of the
SIP. As we explained in our proposed notice, EPA regulations ``require
a minimum 30-day period for public comment on the information submitted
by the owner or operator prior to construction.'' 79 FR 21428. These
regulations explicitly mandate that state SIP minor permitting
regulations ``include the opportunity for public comment on information
submitted by owners and operators.'' 40 CFR 51.160, 51.161(a). The
regulations further require that the information available to the
public ``must include the agency's analysis of the effect of
construction or modification on ambient air quality, including the
agency's proposed approval or disapproval.'' EPA's regulations specify
that state SIP permitting procedures ``shall include, as a minimum . .
. a 30-day period for submittal of public comment.'' These public
participation requirements apply to ``construction or modification''
\6\ of a ``facility, building, structure or installation.'' \7\
Finally, the regulations require that public notice be sent to the EPA
Regional Office and to all other state and local air pollution control
agencies having jurisdiction in the region in which the new or modified
source ``will be located.'' 40 CFR 51.161(d).
---------------------------------------------------------------------------

    \6\ 40 CFR 51.160(a).
    \7\ Id.
---------------------------------------------------------------------------

    The State rule allows owners and operators to ``initiate
construction prior to issuance of the construction permit,'' ARSD
74:36:20:02.01, and public notice is provided after construction.
DENR's comment notes that notice of the construction permit is provided
``before the applicant can operate any equipment.'' Providing an
opportunity for public comment before the applicant can operate the
equipment does not meet the requirements in 40 CFR 51.161, as the State
rules fail to provide the opportunity for comment prior to construction
and therefore are inconsistent with EPA regulations. They also fail to
provide either the public or EPA and local permitting authorities
either notice or an opportunity to comment on where the facility ``will
be located.'' Moreover, DENR's comment lacks any analysis of how the
State rule, which provides for public participation after construction,
is consistent with the regulatory requirements.
    The comment suggests, but provides no evidence that, EPA's
disapproval of this rule would give another state an advantage over
South Dakota's economic development. Neither the CAA nor EPA's
implementing regulations contain any specific requirement that we take
economic development into account in determining the approvability of
SIP amendments. While we are not required to consider economic
development impacts, the State's comments provide no details regarding
economic development impacts for us to consider. Additionally, DENR's
SIP rules have contained the 30-day public comment period minor source
permits for many years.\8\ While the DENR's comments indicate that it
has been implementing new rule ARSD 74:36:20:01.01 for approximately
three years,\9\ it provides no information regarding impacts to
economic development in the State prior to implementation of the new
program.
---------------------------------------------------------------------------

    \8\ For example, EPA approved 74:36:04:12 (Public Participation
in Permitting Process) on April 7, 2003. [68 FR 16726.]
    \9\ Normally, a state should generally not be implementing a SIP
revision prior to EPA approval, when the revision is a relaxation of
the existing SIP. General Motors Corp. v. United States, 496 U.S.
530, at 540 (``There can be little or no doubt that the existing SIP
remains the `applicable implementation plan' even after the State
has submitted a proposed revision''). EPA reviews SIP revisions for
compliance with the Act and regulations.
---------------------------------------------------------------------------

    Finally, the comments suggest there are other state SIPs where EPA
has approved less than the 30-day public comment period, and mentions
Iowa, without, however, providing either citations to any relevant Iowa
regulations or references to prior EPA interpretations. Therefore, we
do not know what the comment refers to. To the extent EPA may have
approved provisions in other SIPs that allow for less than the 30-day
public comment period, as we explained in the proposed notice and this
final action, our current interpretation of 40 CFR 51.161 is that it
requires that state SIPs include a minimum of a 30-day period for
submittal of public comments on proposed minor source permits.
    Comment: DENR asserted that the CAA (Section 110(a)(2)(C)) and the
federal regulations (40 CFR 51.160(a) and (b)) ``do not state a
construction permit must be issued prior to construction activities
beginning.'' For support of this assertion, DENR references EPA's
preliminary comments

on the proposed rules,\10\ as well as EPA's mention in the proposed
notice of prior approval of such programs.\11\
---------------------------------------------------------------------------

    \10\ The comments reference the following from EPA's preliminary
comments, ``[i]t should be noted that EPA's regulations at 40 CFR
51.160 do not require the issuance of a permit for the construction
of modification of minor sources, but only that the SIP include a
procedure to prevent the construction of a source or modification
that would violate the SIP control strategy or interfere with
attainment or maintenance of the NAAQS.'' Email from Laurel
Dygowski, South Dakota SIP Program Manager, EPA Region 8 Air
Program, to Brian Gustafson, South Dakota (January 11, 2011). EPA's
regulations do not explicitly require that a state's minor source
program provide approval of construction through the specific
mechanism of a permit, so long as there is some preconstruction
approval process that meets the requirements of 40 CFR 51.160-161.
    \11\ The comments do not refer to a particular quotation from
the proposed rule; however, we assume the commenter is referring to
the following: ``[w]e acknowledge that EPA may have approved some
state minor source programs with approaches/requirements similar to
those proposed by South Dakota, which may warrant EPA evaluation in
the future.'' 79 FR 21428. Our current interpretation of the CAA and
regulatory requirements are as explained in this action.
---------------------------------------------------------------------------

    Response: We disagree with this comment. The CAA contains
provisions for the preconstruction review and approval of new and
modified sources of air pollution, which are generally implemented by a
state through a permitting program as part of an approved SIP, or in
some cases by EPA. For minor sources, which are those sources that have
the potential to emit below major source thresholds of the PSD and
nonattainment NSR program, the CAA has specific requirements. Under CAA
section 110(a)(2)(C), the state's SIP must provide for ``the regulation
of the modification and construction of any stationary source . . . as
necessary to ensure that national ambient air quality standards are
achieved.'' \12\ Therefore, all SIPs must contain minor source
preconstruction approval programs. The CAA contains separate and
distinct requirements for operating permits, which we are not reviewing
in this action.
---------------------------------------------------------------------------

    \12\ The Act defines ``construction'' when used on connection
with any source or facility, to include ``modification,'' which
``means any physical change in, or change in the method of operation
of, a stationary source which increases the amount of any air
pollutant emitted by such source or which results in the emission of
any air pollutant not previously emitted. CAA sections 111(a)(4),
169(2)(C).
---------------------------------------------------------------------------

    EPA's implementing regulations specify the requirements for minor
NSR programs, and the relevant provisions are discussed here. 40 CFR
51.160-51.164. Each state SIP must set forth legally enforceable
procedures which will allow the state to determine whether the
construction or modification of a minor source, or a ``minor
modification'' of an existing source, ``will'' (1) result in a
violation of applicable portions of the State's control strategy, or
(2) interfere with attainment of maintenance of any NAAQS in the State
or in a neighboring state. 40 CFR 51.160(a). The SIP must also include
the means by which a state can ``prevent'' construction that ``will
interfere with the attainment or maintenance of a national standard.''
40 CFR 51.160(b). Therefore, SIPs must require that owners or operators
of source that are subject to minor NSR submit information to the state
so the state can determine if the construction or modification of the
source will result in a violation of the control strategy or interfere
with attainment of maintenance of the NAAQS. 40 CFR 51.160(b). SIPs
must also contain, among other elements, a ``control strategy,'' which
is a combination of measures (including emission limitations and
measures that apply to stationary sources) designed to achieve the
reduction of emission necessary for attainment and maintenance of the
NAAQS. 40 CFR 51.100(n). Therefore, there are minimum statutory and
regulatory requirements that apply to minor source permit programs,
adherence to which is determined under the CAA by EPA. CAA section 110.
    Under the current, federally-approved South Dakota SIP, minor
sources are subject to the State's permitting requirements and must
receive authorization to proceed with the construction or modification
in accordance with the SIP, [ARSD 74:36:04:02], unless they meet
exemption requirements in ARSD 74:36:04:03.
    Under the State's proposed program that allows for initiating
construction prior to issuance, the owner or operator may begin
construction or modification if they meet two basic requirements: (1)
Submit a permit application to the department; and (2) notify the
department that they intend to initiate construction. ARSD
74:36:20:01.01(1), (2). Once these two requirements are met, the owner
or operator may begin and complete construction or modification of true
minor sources. ARSD 74:36:20:01.01(3), (4). The proposed rules do not
require State review of the proposed construction or modification
before the construction of modification occurs. The State rules also do
not provide for the State to affirmatively approve the proposed
modification or construction before it commences or before completion
of the construction or modification. While there are provisions in the
rule that cover activities after construction and modification,\13\
there is no State administrative approval or review of any kind prior
to construction activities. The State receives notice from the owner or
operator before construction starts; however, there are no provisions
in the rule that specify any action the State is to take regarding that
notice or any mechanism to ensure preconstruction review and approval.
Therefore, neither the State, public, nor EPA can determine whether the
project will be in compliance with the CAA and implementing regulations
before construction is initiated and completed.
---------------------------------------------------------------------------

    \13\ The proposed SIP rule provides that: The owner or operator
assume liability for construction (ARSD 74:36:20:02.01(5)); the
owner or operator may not operate the equipment and emit air
pollutants prior to receiving a construction permit (ARSD
74:36:20:02.01(5)); if the department demonstrates that the
construction or modification will interfere with the attainment or
maintenance of the NAAQS or increment, the owner or operator must
cease construction (ARSD 74:36:20:02.01(6)); and (4) the owner or
operator will be required to make any changes to the new source or
modification of an existing source that may be imposed in the
construction permit (ARSD 74:36:20:02.01(7)).
---------------------------------------------------------------------------

    The State rules allow construction to proceed, and provide for
review of the construction while it is underway (or after the
construction is complete). As discussed above, we interpret the CAA and
implementing regulations to require regulation and approval of
construction of any stationary source before the construction occurs,
not as proposed by the State, review and approval construction in
process or after it has occurred. While we have not interpreted the CAA
and regulations to require that states implement the SIP requirement
for a minor source program through the mechanism of a permitting
program, we have required that SIPs include some mechanism for
preconstruction review and approval of proposed minor sources before
the activities commence. Such review and approval is necessary to
determine whether the proposed construction or modification will
violate a control strategy or interfere with attainment or maintenance
of the NAAQS and to ``prevent such construction or modification'' that
will do so as required by 51.160(a) and (b).\14\ The proposed rules
provide for State approval before the owner or operator begins
operating the source and emitting pollutants but provide no mechanism
to evaluate or prevent proposed

construction. Therefore, the proposed changes to the SIP are incomplete
as they lack the ``legally enforceable procedures that enable'' the
State to make the necessary determination and ensure that the State
``will prevent such construction'' if the source ``will'' violate the
control strategy or interfere with NAAQS attainment. Finally, the
commenter appears to imply that our preliminary comments to the State
are controlling or binding on our final action. As explained above,
while we aim, and often do, provide comments early and throughout a
state's rulemaking process, those comments are not final agency
actions. There is nothing in the Act that requires such comments, much
less that makes them binding on EPA such as to require that EPA approve
a SIP that does not meet regulatory requirements. To the contrary,
Congress entrusted with EPA an oversight role to ensure the
requirements of the Act are met. Moreover, nothing in EPA's preliminary
comments suggested that the State's draft rules would be approvable if
the State were to make the suggested changes.
---------------------------------------------------------------------------

    \14\ We would note, however, to a substantial degree, it is the
permit process itself, embodied in South Dakota's current SIP
regulations, that provides the vehicle to identify and make
enforceable specific measures necessary to protect the NAAQS. As
explained in the notice, it is the lack of such authority for the
State to review and approve the modification or construction that is
fatal to the proposed revisions.
---------------------------------------------------------------------------

    Comment: DENR also takes exception to EPA's implication that DENR's
decision to approve or deny a permit would be influenced by a facility
that has been built (the ``equity in the ground'' issue) and could
potentially cause a violation of a NAAQS. The comments also note EPA's
concerns expressed in the proposal regarding fundamental design issues
that cannot be overcome should the State seek modifications to protect
the NAAQS. DENR explains that: (1) The State rules require the owner or
operator to assume these risks and make required changes before
operation; (2) the State ``has taken enforcement action when necessary
on facilities that have violated their permits and/or that began
construction and operation prior to obtaining the appropriate
permits;'' (3) since the State established its initial SIP in the
1970's ``the construction and operation of a true minor source has not
caused or interfered with attaining or maintaining a National Ambient
Air Quality Standard;'' and (4) if DENR believes a NAAQS would be
violated, ``DENR would prevent a source from operating until
appropriate changes were made to protect'' the NAAQS.
    Response: EPA agrees in part with this comment. First, we
acknowledge that there are some safeguards in the proposed rule;
however, we remain concerned that there is no mechanism for either the
public or local regulatory authorities with jurisdiction to comment on
where ``the source will be located.'' And leaving aside the lack of
regulatory and public input into siting decisions, after a source has
been constructed there may remain fundamental design issues that cannot
be overcome by the provisions in the proposed rules. Second, the
comment indicates that the State has taken enforcement action where
necessary; however, it provides no details regarding such actions.
Third, the comment suggests that true minor sources have not caused or
interfered with attaining or maintaining the NAAQS, but provides no
evidence to support this statement and does not address the legal
requirement for legally enforceable procedures to ``prevent''
construction of a source that ``will'' have such effects. Finally, the
comments indicate that if DENR believes enforcement were necessary, it
would prevent the source from ``operating.'' The comment does not
include a reference to what authority the DENR would use for such
enforcement. Moreover, the comment asserts that the State has authority
to prevent source operation but does not attempt to assert that the
program authorizes the state to ``prevent such construction'' as may
violate the control strategy or interfere with attainment. EPA
acknowledges that 74:36:20:02.01 (Initiating construction prior to
permit issuance) has some safeguards in place; however, the rules fall
short of meeting the requirements of the CAA and implementing
regulations.
    Comment: DENR indicates it ``believes it has provided enough
provisions in allowing construction prior to DENR completing its
analysis (i.e., statement of basis) of the project and issuing a
construction permit after a 30-day public comment period to protect''
both the State's control strategy and the NAAQS. DENR explains this is
demonstrated by approximately three years of program implementation.
DENR also explains that the State is in full attainment with all the
NAAQS.
    Response: EPA disagrees with this comment because the final rule,
as adopted by the State, allows no review or comment on siting
decisions and does not require any type of administrative approval from
the State prior to allowing unpermitted ``construction'' activities.
Therefore, neither the State, public, nor EPA can evaluate siting
decisions or determine whether the project ``will'' be in compliance
with the CAA and implementing regulations before construction occurs.
Regardless of South Dakota's current attainment status of the NAAQS,
74:36:20:02.01 does not meet the minimum requirements as outlined in
the beginning of Section II of this rulemaking.
    The fact that South Dakota has implemented the proposed changes to
the SIP before EPA's final action, is not, as the comment appears to
suggest, a basis for EPA approval. Under CAA section 116, a state may
not implement any emission limitation or any control or abatement
requirement that is less stringent than the applicable, approved SIP.
The current SIP requires that sources obtain a permit from the State
prior to construction. The proposed SIP revisions are less stringent
than the existing SIP because they allow sources to construct without
obtaining a permit prior to construction. Therefore, proposed SIP
revisions violate CAA section 116 by exempting sources from the
existing SIP requirement to obtain a permit before beginning
construction.
    Furthermore, as we explained in our proposal, Section 110(i) of the
CAA specifically precludes states from changing requirements of the SIP
except through SIP revisions approved by EPA. SIP revisions will be
approved by EPA only if they meet all requirements of the Act and the
implementing regulations. The CAA gives EPA both the authority and the
obligation to review a proposed program's compliance with the Act and
applicable regulations and to disapprove regulations that do not meet
legal requirements. Therefore, a state's implementation of proposed SIP
amendments prior to EPA approval, does not limit EPA's authority to
take final rulemaking action to disapprove SIP provisions that the
state has been implementing without SIP approval.
    Finally, the commenter suggests the permit rules preventing sources
from operating protect the State's control strategy and the NAAQS, and
points to the State's attainment status for all the NAAQS. However, the
commenter provides nothing further in its comments in the way of
rationale and data to show that allowing unpermitted construction will
ensure the State's continuing and future attainment status. CAA section
110(l) requires a demonstration that a SIP revision does not interfere
with any requirement concerning attainment and maintenance of the NAAQs
and that any relaxation is sufficiently protective of air quality and
other CAA requirements in order for EPA to approve. The fact that the
SIP submittal and the comments lack a demonstration (e.g., air quality
monitoring data and trends, projected minor source participation and
impacts, and emission inventory data and trends) to show that the minor
source permitting rule revisions are not likely to interfere with NAAQS
or the State's SIP control strategy provides further evidence that the
SIP is not approvable.

Without a demonstration from the State that shows the minor sources
that are subject to this program will not impact attainment and
maintenance, we have no information to determine the significance of
the proposed rule and whether the sources will impact the NAAQS. Minor
sources, either individually or collectively, may impact attainment.
Finally, even if we assume the substitution of the new program for the
prior minor source permit program were allowed under section 110(l),
the State has provided no demonstration to show the new rules achieve
the same results as the existing rules for these sources. Therefore, we
lack information and a basis to approve these amendments to the SIP
under section 110(1).

III. Basis for Our Final Action

    We have fully considered the comments we received, and have
concluded that no changes from our proposed rule are warranted. As
discussed in our proposal and this rule, our action is based on an
evaluation of South Dakota's rules against the requirements of CAA
sections 110(a)(2)(C), 110(i), 110(l), 116, our minor source NSR
regulations at 40 CFR 51.160-51.164, and other requirements discussed
in section II of this action.
    Section 110(a)(2)(C) of the Act contains the requirements for
preconstruction review programs for minor sources and requires that
each SIP include a program to regulate the construction and
modification of stationary sources as necessary to assure that the
NAAQS are achieved.
    EPA's minor source implementing regulations are in 40 CFR 51.160-
51.164. The regulations require that a SIP include ``legally
enforceable procedures that enable'' the permitting agency to determine
whether construction ``will result in'' interference with the NAAQS, 40
CFR 51.160(a). The SIP must also include the means by which a state or
local agency can ``prevent'' construction that ``will interfere with
the attainment or maintenance of a national standard.'' 40 CFR
51.160(b). 40 CFR 51.161(a) requires that the legally enforceable
procedures in 40 CFR 51.160 must also require the state or local agency
to provide opportunity for public comment on information submitted by
owners or operators. The public information must include the agency's
analysis of the effect of construction or modification on ambient air
quality, including the agency's proposed approval or disapproval. 40
CFR 51.161(b) requires a minimum 30-day public comment period. Finally,
the regulations require that public notice be sent to the EPA Regional
Office and to all other state and local air pollution control agencies
having jurisdiction in the region in which the new or modified source
``will be located.'' 40 CFR 51.161(d).
    We are approving those rules that meet the relevant requirements
and disapproving those rules that do not meet the relevant
requirements, or are not appropriate for inclusion in the SIP.
Specifically, we are disapproving 74:36:04:20:01 (Initiating
Construction Prior to Permit Issuance), and the related phrase:
``unless it meets the requirements in 74:36:20:02.01'' in
74:36:04:20:02 (Construction Permit Required). We are disapproving the
related phrase because it references the rule we are disapproving.
    For a detailed description of the bases for our actions on the
individual rules, please refer to our notice of proposed rulemaking (79
FR 21424) and our response to comments in section II of this action.
    We are sensitive to the concerns expressed in the State's comments.
We also understand the State's goals in promulgating rule
74:36:20:02.01, as expressed during the State's rulemaking, were to
``expedite the construction of specific facilities that will have
minimal impact to the ambient air and for those projects that may be
impacted by inclement weather (i.e. winter months),'' \15\ ``and to
ensure that new businesses and existing businesses looking to expand
are permitted in an expedited manner.'' \16\ 79 FR 21428. If requested
by South Dakota, EPA will work with the State to develop revised rules
that are consistent with the State goals and consistent with the CAA
and implementing regulations.\17\
---------------------------------------------------------------------------

    \15\ State of South Dakota SIP Submittal, at PDF pages 170-171
(June 14, 2011, part 1 of 2).
    \16\ State of South Dakota SIP Submittal, at PDF page 105 (June
14, 2011, part 2 of 2) (Board of Minerals and Environment Minutes,
February 17, 2011).
    \17\ One option for South Dakota is to amend its ``initiating
construction prior to permit issuance'' section to allow only
certain limited, seasonal, pre-permit construction activities and
specify which activities are allowed, and exclude construction of
any emitting unit. An example of this type of pre-permit
construction language can be found in the Administrative Rules of
Montana (ARM) 17.8.743(2), which EPA approved on August 8, 2011 (76
FR 40237).
---------------------------------------------------------------------------

IV. Final Action

    In this rulemaking, we are taking final action to: (1) Approve
revisions to 74:36:01:01 (Definitions); 74:36:02 (Ambient Air Quality);
74:36:03 (Air Quality Episodes); 74:36:04 (Operating Permits for Minor
Sources); 74:36:10 (New Source Review); 74:36:11 (Performance Testing);
74:36:12 (Control of Visible Emissions); 74:36:13 (Continuous Emissions
Monitoring Systems); 74:36:18 (Regulations for State Facilities in the
Rapid City Area); and 74:36:20 (Construction Permits for New Sources or
Modifications); (2) Disapprove 74:36:20:02.01 (Initiating Construction
Prior to Permit Issuance), and the phrase ``, unless it meets the
requirements in 74:36:20:02.01'' in 74:36:20:02 (Construction Permit
Required); (3) Not take action on 74:36:05 (Operating Permits for Part
70 Sources); 74:36:07 (New Source Performance Standards); 74:36:08
(National Emission Standards for Hazardous Air Pollutants); 74:36:09
(Prevention of Significant Deterioration); 74:36:16 (Acid Rain
Program); and 74:36:19 (Mercury Budget Trading Program).

V. Statutory and Executive Orders Review

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this final action merely approves certain state law as
meeting Federal requirements, disapproves other state law as not
meeting Federal requirements, and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);

     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by August 26, 2014. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See CAA section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: May 29, 2014.
Shaun L. McGrath,
Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for Part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart QQ--South Dakota

0
2. Section 52.2170 is amended in the table titled ``State of South
Dakota Regulations'' in paragraph (c)(1):
0
a. By revising the table entries for ``74:36:01:01'' and
``74:36:01:05'';
0
b. By adding the table entry for ``74:36:01:10'' in numerical order;
0
c. By revising the table entry for ``74:36:01:20'';
0
d. By adding the table entry for ``74:36:01:21'' in numerical order;
0
e. By revising the table entries for ``74:36:02:02'' through
``74:36:02:05'', ``74:36:03:01'', and ``74:36:03:02'';
0
f. By adding the table entries for ``74:36:04:02'', ``74:36:04:02.01'',
and ``74:36:04:03'' in numerical order;
0
g. By revising the table entry for ``74:36:04:04'';
0
h. By adding the table entries for ``74:36:04:06'', ``74:36:04:07'',
``74:36:04:09'', ``74:36:04:10'', ``74:36:04:12'', ``74:36:04:12.01'',
``74:36:04:13'', ``74:36:04:15'' through ``74:36:04:18'',
``74:36:04:20'', ``74:36:04:20.01'', ``74:36:04:20.04'',
``74:36:04:23'', ``74:36:04:27'', and ``74:36:04:32'' in numerical
order;
0
i. By revising the table entries for ``74:36:10:02'',
``74:36:10:03.01'', ``74:36:10:05'', ``74:36:10:07'', and
``74:36:10:08'';
0
j. By removing the table entries for ``74:36:10:09'' and
``74:36:10:10'' and the second entry for ``74:36:13:07'' ;
0
k. By revising the table entries for ``74:36:11:01'', ``74:36:12:01'',
``74:36:12:03'', ``74:36:13:02'', ``74:36:13:03'', ``74:36:13:04'',
``74:36:13:06'', the first entry for ``74:36:13:07'', and the entries
for ``74:36:13:08'', and ``74:36:18:10''; and
0
l. By adding a new centered heading for ``74:36:20 [Construction
Permits For New Sources Or Modifications]'' and the table entries
``74:36:20:01 through 74:36:20:24'', in numerical order.
    The amendments read as follows:

Sec.  52.2170  Identification of plan.

* * * * *
    (c) * * *

----------------------------------------------------------------------------------------------------------------
                                                            State
          State citation               Title/subject      effective     EPA approval date       Explanations
                                                             date       and citation \1\
----------------------------------------------------------------------------------------------------------------
                                              74:36:01 Definitions
----------------------------------------------------------------------------------------------------------------
74:36:01:01......................  Definitions.........    4/20/2011  6/27/2014, [Insert
                                                                       Federal Register
                                                                       citation].
74:36:01:05......................  Applicable              6/28/2010  6/27/2014, [Insert
                                    requirements of the                Federal Register
                                    Clean Air Act                      citation].
                                    defined.

                                                  * * * * * * *
74:36:01:10......................  Modification defined    6/28/2010  6/27/2014, [Insert
                                                                       Federal Register
                                                                       citation].

                                                  * * * * * * *
74:36:01:20......................  Physical change in      6/28/2010  6/27/2014, [Insert
                                    or change in the                   Federal Register
                                    method of operation                citation].
                                    defined.
74:36:01:21......................  Commence                6/28/2010  6/27/2014, [Insert
                                    construction                       Federal Register
                                    defined.                           citation].
----------------------------------------------------------------------------------------------------------------

                                          74:36:02 Ambient Air Quality
----------------------------------------------------------------------------------------------------------------
74:36:02:02......................  Ambient air quality     6/28/2010  6/27/2014, [Insert
                                    standards.                         Federal Register
                                                                       citation].
74:36:02:03......................  Methods of sampling     6/28/2010  6/27/2014, [Insert
                                    and analysis.                      Federal Register
                                                                       citation].
74:36:02:04......................  Air quality             6/28/2010  6/27/2014, [Insert
                                    monitoring network.                Federal Register
                                                                       citation].
74:36:02:05......................  Ambient air             6/28/2010  6/27/2014, [Insert
                                    monitoring                         Federal Register
                                    requirements.                      citation].
----------------------------------------------------------------------------------------------------------------
                                          74:36:03 Air Quality Episodes
----------------------------------------------------------------------------------------------------------------
74:36:03:01......................  Air pollution           6/28/2010  6/27/2014, [Insert
                                    emergency episode.                 Federal Register
                                                                       citation].
74:36:03:02......................  Episode emergency       6/28/2010  6/27/2014, [Insert
                                    contingency plan.                  Federal Register
                                                                       citation].
----------------------------------------------------------------------------------------------------------------
                                  74:36:04 Operating Permits for Minor Sources
----------------------------------------------------------------------------------------------------------------
74:36:04:02......................  Minor source            6/28/2010  6/27/2014, [Insert
                                    operating permit                   Federal Register
                                    required.                          citation].
74:36:04:02.01...................  Minor source            6/28/2010  6/27/2014, [Insert
                                    operating permit                   Federal Register
                                    exemption.                         citation].
74:36:04:03......................  Emission unit           6/28/2010  6/27/2014, [Insert
                                    exemptions.                        Federal Register
                                                                       citation].
74:36:04:04......................  Standard for            6/28/2010  6/27/2014, [Insert
                                    issuance of a minor                Federal Register
                                    source operating                   citation].
                                    permit.
74:36:04:06......................  Timely and complete     6/28/2010  6/27/2014, [Insert
                                    application for                    Federal Register
                                    operating permit                   citation].
                                    required.
74:36:04:07......................  Required contents of    6/28/2010  6/27/2014, [Insert
                                    complete                           Federal Register
                                    application for                    citation].
                                    operating permit.
74:36:04:09......................  Permit application--    6/28/2010  6/27/2014, [Insert
                                    Completeness review.               Federal Register
                                                                       citation].
74:36:04:10......................  Time period for         6/28/2010  6/27/2014, [Insert
                                    department's                       Federal Register
                                    recommendation.                    citation].
74:36:04:12......................  Public participation    6/28/2010  6/27/2014, [Insert
                                    in permitting                      Federal Register
                                    process.                           citation].
74:36:04:12.01...................  Public review of        6/28/2010  6/27/2014, [Insert
                                    department's draft                 Federal Register
                                    permit.                            citation].
74:36:04:13......................  Final permit            6/28/2010  6/27/2014, [Insert
                                    decision--Notice to                Federal Register
                                    interested persons.                citation].
74:36:04:15......................  Contents of             6/28/2010  6/27/2014, [Insert
                                    operating permit.                  Federal Register
                                                                       citation].
74:36:04:16......................  Operating permit        6/28/2010  6/27/2014, [Insert
                                    expiration.                        Federal Register
                                                                       citation].
74:36:04:17......................  Renewal of operating    6/28/2010  6/27/2014, [Insert
                                    permit.                            Federal Register
                                                                       citation].
74:36:04:18......................  Operating permit        6/28/2010  6/27/2014, [Insert
                                    revision.                          Federal Register
                                                                       citation].
74:36:04:20......................  Procedures for          6/28/2010  6/27/2014, [Insert
                                    administrative                     Federal Register
                                    permit amendments.                 citation].
74:36:04:20.01...................  Minor permit            6/28/2010  6/27/2014, [Insert
                                    amendment required.                Federal Register
                                                                       citation].
74:36:04:20.04...................  Department deadline     6/28/2010  6/27/2014, [Insert
                                    to approve minor                   Federal Register
                                    permit amendment.                  citation].
74:36:04:23......................  Reopening operating     6/28/2010  6/27/2014, [Insert
                                    permit for cause.                  Federal Register
                                                                       citation].
74:36:04:27......................  Operating permit        6/28/2010  6/27/2014, [Insert
                                    termination,                       Federal Register
                                    revision, and                      citation].
                                    revocation.
74:36:04:32......................  General permits.....    6/28/2010  6/27/2014, [Insert
                                                                       Federal Register
                                                                       citation].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                           74:36:10 New Source Review
----------------------------------------------------------------------------------------------------------------
74:36:10:02......................  Definitions.........    6/25/2013  6/27/2014, [Insert
                                                                       Federal Register
                                                                       citation].
74:36:10:03.01...................  New source review       6/25/2013  6/27/2014, [Insert
                                    preconstruction                    Federal Register
                                    permit required.                   citation].
74:36:10:05......................  New source review       6/25/2013  6/27/2014, [Insert
                                    preconstruction                    Federal Register
                                    permit.                            citation].
74:36:10:07......................  Determining credit      6/25/2013  6/27/2014, [Insert
                                    for emission                       Federal Register
                                    offsets.                           citation].
74:36:10:08......................  Projected actual        6/25/2013  6/27/2014, [Insert
                                    emissions.                         Federal Register
                                                                       citation].
----------------------------------------------------------------------------------------------------------------
                                          74:36:11 Performance Testing
----------------------------------------------------------------------------------------------------------------
74:36:11:01......................  Stack performance       6/28/2010  6/27/2014, [Insert
                                    testing or other                   Federal Register
                                    testing methods.                   citation].
----------------------------------------------------------------------------------------------------------------
                                      74:36:12 Control of Visible Emissions
----------------------------------------------------------------------------------------------------------------
74:36:12:01......................  Restrictions on         6/28/2010  6/27/2014, [Insert
                                    visible emissions.                 Federal Register
                                                                       citation].
74:36:12:03......................  Exceptions granted      6/28/2010  6/27/2014, [Insert
                                    to alfalfa                         Federal Register
                                    pelletizers or                     citation].
                                    dehydrators.
----------------------------------------------------------------------------------------------------------------
                                74:36:13 Continuous Emissions Monitoring Systems
----------------------------------------------------------------------------------------------------------------
74:36:13:02......................  Minimum performance     6/28/2010  6/27/2014, [Insert
                                    specifications for                 Federal Register
                                    all continuous                     citation].
                                    emission monitoring
                                    systems.
74:36:13:03......................  Reporting               6/28/2010  6/27/2014, [Insert
                                    requirements.                      Federal Register
                                                                       citation].
74:36:13:04......................  Notice to department    6/28/2010  6/27/2014, [Insert
                                    of exceedance.                     Federal Register
                                                                       citation].
74:36:13:06......................  Compliance              6/28/2010  6/27/2014, [Insert
                                    certification.                     Federal Register
                                                                       citation].
74:36:13:07......................  Credible evidence...    6/28/2010  6/27/2014, [Insert
                                                                       Federal Register
                                                                       citation].
74:36:13:08......................  Compliance assurance    6/28/2010  6/27/2014, [Insert
                                    monitoring.                        Federal Register
                                                                       citation].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                        74:36:18 Regulations for State Facilities In the Rapid City Area
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
74:36:18:10......................  Visible emission        6/28/2010  6/27/2014, [Insert
                                    limit for                          Federal Register
                                    construction and                   citation].
                                    continuous
                                    operation
                                    activities.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                         74:36:20 Construction Permits For New Sources Or Modifications
----------------------------------------------------------------------------------------------------------------
74:36:20:01......................  Applicability.......    6/28/2010  6/27/2014, [Insert
                                                                       Federal Register
                                                                       citation].
74:36:20:02......................  Construction permit     4/20/2011  6/27/2014, [Insert    Except for ``,
                                    required.                          Federal Register      unless it meets the
                                                                       citation].            requirements in
                                                                                section
                                                                                74:36:20:02.01''.
74:36:20:03......................  Construction permit     6/28/2010  6/27/2014, [Insert
                                    exemption.                         Federal Register
                                                                       citation].
74:36:20:04......................  Emission unit           6/28/2010  6/27/2014, [Insert
                                    exemptions.                        Federal Register
                                                                       citation].
74:36:20:05......................  Standard for            6/28/2010  6/27/2014, [Insert
                                    issuance of                        Federal Register
                                    construction permit.               citation].
74:36:20:06......................  Timely and complete     6/28/2010  6/27/2014, [Insert
                                    application for a                  Federal Register
                                    construction permit                citation].
                                    required.

74:36:20:07......................  Required contents of    6/28/2010  6/27/2014, [Insert
                                    complete                           Federal Register
                                    application for a                  citation].
                                    construction permit.
74:36:20:08......................  Applicant required      6/28/2010  6/27/2014, [Insert
                                    to supplement or                   Federal Register
                                    correct application.               citation].
74:36:20:09......................  Permit application--    6/28/2010  6/27/2014, [Insert
                                    Completeness review.               Federal Register
                                                                       citation].
74:36:20:10......................  Time period for         6/28/2010  6/27/2014, [Insert
                                    department's                       Federal Register
                                    recommendation.                    citation].
74:36:20:11......................  Public participation    6/28/2010  6/27/2014, [Insert
                                    in permitting                      Federal Register
                                    process.                           citation].
74:36:20:12......................  Public review of        6/28/2010  6/27/2014, [Insert
                                    department's draft                 Federal Register
                                    permit.                            citation].
74:36:20:13......................  Final permit            6/28/2010  6/27/2014, [Insert
                                    decision--Notice to                Federal Register
                                    interested persons.                citation].
74:36:20:14......................  Right to petition       6/28/2010  6/27/2014, [Insert
                                    for contested case                 Federal Register
                                    hearing.                           citation].
74:36:20:15......................  Contents of             6/28/2010  6/27/2014, [Insert
                                    construction permit.               Federal Register
                                                                       citation].
74:36:20:16......................  Administrative          6/28/2010  6/27/2014, [Insert
                                    permit amendment.                  Federal Register
                                                                       citation].
74:36:20:17......................  Procedures for          6/28/2010  6/27/2014, [Insert
                                    administrative                     Federal Register
                                    permit amendments.                 citation].
74:36:20:18......................  Reopening               6/28/2010  6/27/2014, [Insert
                                    construction permit                Federal Register
                                    for cause.                         citation].
74:36:20:19......................  Procedures to reopen    6/28/2010  6/27/2014, [Insert
                                    construction permit.               Federal Register
                                                                       citation].
74:36:20:20......................  Construction permit     6/28/2010  6/27/2014, [Insert
                                    does not exempt                    Federal Register
                                    from other                         citation].
                                    requirements.
74:36:20:21......................  Expiration of a         6/28/2010  6/27/2014, [Insert
                                    construction permit.               Federal Register
                                                                       citation].
74:36:20:22......................  Notice of               6/28/2010  6/27/2014, [Insert
                                    constructing or                    Federal Register
                                    operating                          citation].
                                    noncompliance--Cont
                                    ents.
74:36:20:23......................  Petition for            6/28/2010  6/27/2014, [Insert
                                    contested case on                  Federal Register
                                    alleged violation.                 citation].
74:36:20:24......................  Circumvention of        6/28/2010  6/27/2014, [Insert
                                    emissions not                      Federal Register
                                    allowed.                           citation].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ In order to determine the EPA effective date for a specific provision that is listed in this table, consult
  the Federal Register cited in this column for that particular provision.

* * * * *
[FR Doc. 2014-14031 Filed 6-26-14; 8:45 am]
BILLING CODE 6560-50-P