[Federal Register Volume 85, Number 97 (Tuesday, May 19, 2020)]
[Proposed Rules]
[Pages 29882-29895]
[FR Doc No: 2020-10418]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2019-0642; FRL-10007-61-Region 8]

Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 2015 Ozone National Ambient Air
Quality Standards; South Dakota; Revisions to the Administrative Rules
of South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On October 1, 2015, the Environmental Protection Agency (EPA)
promulgated the 2015 ozone NAAQS, revising the standard to 0.070 parts
per million. Whenever a new or revised National Ambient Air Quality
Standard (NAAQS) is promulgated, the Clean Air Act (CAA or Act)
requires each state to submit a State Implementation Plan (SIP)
revision for the implementation, maintenance, and enforcement of the
new standard. This submission is commonly referred to as an
infrastructure SIP. In this action we are proposing to approve the
State of South Dakota's January 15, 2020 SIP submission that addresses
infrastructure requirements for the 2015 ozone NAAQS. Additionally, in
this action, we are proposing to approve a SIP revision submitted by
the State of South Dakota on January 3, 2020 that revises the
Administrative Rules of South Dakota (ARSD), Air Pollution Control
Program, updating the date of incorporation by reference of federal
rules in ARSD chapters pertaining to definitions, ambient air quality,
air quality episodes, prevention of significant deterioration (PSD),
new source review, performance testing, control of visible emissions,
continuous emission monitoring systems, State facilities in Rapid City
area, construction permits and regional haze program administrative
rules.

DATES: Written comments must be received on or before June 18, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2019-0642, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
www.regulations.gov. The EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air and Radiation
Division, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop
Street, Denver, Colorado 80202-1129. The EPA requests that if at all
possible, you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to view the hard copy of the docket. You
may view the hard copy of the docket Monday through Friday, 8:00 a.m.
to 4:00 p.m., excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Kate Gregory,<PHONE_NUMBER>,
<EMAIL_ADDRESS>Mail can be directed to the Air and Radiation
Division, U.S. EPA, Region 8, Mail-code 8ARD-QP, 1595 Wynkoop Street,
Denver, Colorado, 80202-1129.

SUPPLEMENTARY INFORMATION: Throughout this document, ``reviewing
authority,'' ``we,'' ``us,'' and ``our'' refer to the EPA.

I. Background

    On March 12, 2008, the EPA promulgated a new NAAQS for ozone,
revising the levels of the primary and secondary 8-hour ozone standards
from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436). More
recently, on October 1, 2015, the EPA promulgated and revised the NAAQS
for ozone, further strengthening the primary and secondary 8-hour
standards to 0.070 ppm (80 FR 65292). The October 1, 2015 standards are
known as the 2015 ozone NAAQS.
    Under sections 110(a)(1) and (2) of the CAA, after the promulgation
of a new or revised NAAQS states are required to submit infrastructure
SIPs to ensure their SIPs provide for implementation, maintenance, and
enforcement of the NAAQS. These submissions must contain any revisions
needed for meeting the applicable SIP requirements of section
110(a)(2), or certifications that the existing SIPs already meet those
requirements. The EPA highlighted this statutory requirement in an
October 2, 2007 guidance document entitled ``Guidance on SIP Elements
Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards'' (2007 Memo).
On September 25, 2009, the EPA issued an additional guidance document
pertaining to the 2006 PM2.5 NAAQS entitled ``Guidance on
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality
Standards (NAAQS)'' (2009 Memo), followed by the October 14, 2011
``Guidance on Infrastructure SIP Elements Required Under Sections
110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality
Standards (NAAQS)'' (2011 Memo). Most recently, the EPA issued
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and (2)'' on September 13, 2013
(2013 Memo).

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

    CAA section 110(a)(1) provides the procedural and timing
requirements for SIP submissions after a new or revised NAAQS is
promulgated. Section 110(a)(2) lists specific elements the SIP must
contain or satisfy. These

infrastructure elements include requirements such as modeling,
monitoring, and emissions inventories, which are designed to assure
attainment and maintenance of the NAAQS. The elements that are the
subject of this action are listed below.
     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control measures.
     110(a)(2)(D): Interstate transport.
     110(a)(2)(E): Adequate resources and authority, conflict
of interest, and oversight of local governments and regional agencies.
     110(a)(2)(F): Stationary source monitoring and reporting.
     110(a)(2)(G): Emergency powers.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local
entities.
    A detailed discussion of each of these elements for South Dakota is
contained in section III of this document. Additionally, we are
proposing to approve revisions to the ARSD submitted by the State of
South Dakota on January 3, 2020.

B. How did the state address the infrastructure elements of Sections
110(a)(1) and (2)?

    The South Dakota 2015 ozone NAAQS infrastructure SIP submissions
demonstrates how the State, where applicable, has plans in place that
meet the requirements of section 110 for the 2015 ozone NAAQS. The
State submittal is available within the electronic docket for today's
proposed action at www.regulations.gov.
    The South Dakota Department of Environment and Natural Resources
(DENR) submitted a certification of South Dakota's infrastructure SIP
for the 2015 ozone NAAQS on January 15, 2020. The State's submission
references the ARSD and the South Dakota Codified Laws (SDCL). The ARSD
and SDCL referenced in the submittals are publicly available at http://sdlegislature.gov/Rules/RulesList.aspx and http://sdlegislature.gov/Statutes/Codified_Laws/default.aspx. South Dakota's approved SIP can be
found at 40 CFR 52.2170.

II. What is the scope of this proposed rule?

    The EPA is acting upon the SIP submission from South Dakota that
addresses the infrastructure requirements of CAA sections 110(a)(1) and
110(a)(2) for the 2015 ozone NAAQS. The requirement for states to make
a SIP submission of this type arises out of CAA section 110(a)(1).
Pursuant to section 110(a)(1), states must make SIP submissions
``within 3 years (or such shorter period as the Administrator may
prescribe) after the promulgation of a national primary ambient air
quality standard (or any revision thereof),'' and these SIP submissions
are to provide for the ``implementation, maintenance, and enforcement''
of such NAAQS. The statute directly imposes on states the duty to make
these SIP submissions, and the requirement to make the submissions is
not conditioned upon the EPA taking any action other than promulgating
a new or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
    Whenever the EPA promulgates a new or revised NAAQS, CAA section
110(a)(1) requires states to make SIP submissions to provide for the
implementation, maintenance and enforcement of the NAAQS. This
particular type of SIP submission is commonly referred to as an
``infrastructure SIP.'' These submissions must meet the various
requirements of CAA section 110(a)(2), as applicable. Due to ambiguity
in some of the language of CAA section 110(a)(2), the EPA finds that it
is appropriate to interpret these provisions in the specific context of
acting on infrastructure SIP submissions. The EPA has previously
provided comprehensive guidance on the application of these provisions
through a guidance document for infrastructure SIP submissions and
through regional actions on infrastructure submissions.\1\ Unless
otherwise noted below, we are following that existing approach in
acting on this submission. In addition, in the context of acting on
such infrastructure submissions, the EPA evaluates the state's SIP for
facial compliance with statutory and regulatory requirements, not for
the state's implementation of its SIP.\2\ The EPA has other authority
to address any issues concerning a state's implementation of the rules,
regulations, consent orders, etc. that comprise its SIP.
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    \1\ The EPA explains and elaborates on these ambiguities and its
approach to address them in its September 13, 2013 Infrastructure
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/. Guidance on
Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as
well as in numerous agency actions, including the EPA's prior action
on South Dakota's infrastructure SIP to address 1997 and 2006
PM2.5, 2008 Lead, 2008 Ozone, and 2010 NO2
NAAQS (79 FR 71040, (December 1, 2014)).
    \2\ See U.S. Court of Appeals for the Ninth Circuit decision in
Montana Environmental Information Center v. EPA, No. 16-71933
(August 30, 2018).
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III. The EPA's Evaluation of the State Submittals

A. CAA Section 110(a)(2)(A): Emission Limits and Other Control Measures

    Section 110(a)(2)(A) requires SIPs to include enforceable emission
limitations and other control measures, means, or techniques (including
economic incentives such as fees, marketable permits, and auctions of
emissions rights), as well as schedules and timetables for compliance
as may be necessary or appropriate to meet the applicable requirements
of the Act.
    (i) The State's submission:
    Multiple SIP-approved ARSD cited in South Dakota's certification
provide enforceable emission limitations and other control measures,
means or techniques, schedules for compliance, and other related
matters necessary to meet the requirements of the CAA section
110(a)(2)(A) for the 2015 NAAQS, subject to the following
clarifications.
    (ii) The EPA's analysis:
    The EPA does not consider the SIP requirements triggered by the
nonattainment area mandates in part D of Title 1 of the CAA to be
governed by the submission deadline of section 110(a)(1). Furthermore,
South Dakota has no areas designated as nonattainment for the 2015
ozone NAAQS. South Dakota's certification (contained within this
docket) generally listed provisions within its SIP which regulate
pollutants through various programs, including major or minor source
permit programs. This suffices, in the case of South Dakota, to meet
the requirements of section 110(a)(2)(A) for the 2015 ozone NAAQS.

B. CAA Section 110(a)(2)(B): Ambient Air Quality Monitoring/Data System

    Section 110(a)(2)(B) requires SIPs to provide for establishment and
operation of appropriate devices, methods, systems, and procedures
necessary to ``(i) monitor, compile, and analyze data on ambient air
quality, and (ii) upon request, make such data available to the
Administrator.''
    (i) The State's submission:
    As discussed in South Dakota's submission, the DENR periodically

submits a Quality Management Plan and a Quality Assurance Project Plan
to the EPA. These plans cover procedures to monitor and analyze data.
As part of the monitoring SIP, South Dakota submits an Annual
Monitoring Network Plan (AMNP) each year for the EPA's approval.
    (ii) The EPA's analysis:
    A comprehensive AMNP, intended to fully meet the federal
requirements, was submitted to the EPA by South Dakota on July 1, 2019
and subsequently approved by the EPA. South Dakota's SIP-approved
regulations, specifically ARSD 74:36:02, provide for the design and
operation of its monitoring network, reporting of data obtained from
the monitors, and an annual network review including notification to
the EPA of any changes, and public notification of exceedances of
NAAQS. As described in its submission, South Dakota operates a
comprehensive monitoring network, including ozone monitoring, compiles
and analyzes collected data, and submits the data to the EPA's Air
Quality System on a quarterly basis. Therefore, we are proposing to
approve the South Dakota SIP as meeting the requirements of CAA section
110(a)(2)(B) for the 2015 ozone NAAQS.

C. CAA Section 110(a)(2)(C): Program for Enforcement of Control
Measures and for Construction or Modification of Stationary Sources

    CAA section 110(a)(2)(C) requires each state to have a program that
provides for the following three sub-elements: Enforcement; state-wide
regulation of new and modified minor sources and minor modifications of
major sources; and preconstruction permitting of major sources and
major modifications in areas designated attainment or unclassifiable
for the 2015 ozone NAAQS as required by CAA Title I part C (i.e., the
major source PSD program).
    (i) The State's submission:
    The South Dakota submission refers to the following SIP-approved
SDCL and ARSD which address and provide for meeting all requirements of
CAA section 110(a)(2)(C):
     SDCL 34A-1-39 through 34A-1-54 and 34A-1-62;
     ARSD Chapter 74:36:09 (prevention of significant
deterioration); and
     ARSD Chapter 74:36:20 (construction permits for new
sources and modifications)
    (ii) The EPA's analysis:
    With regard to the sub-element requirement of a program providing
for enforcement of all SIP measures, we are proposing to find that
South Dakota's regulations provide broad authority to allow the State
to enforce applicable laws, regulations, and standards; to seek
injunctive relief; and to provide authority to prevent construction,
modification, or operation of any stationary source at any location
where emissions from such source will prevent the attainment or
maintenance of a national standard or interfere with PSD requirements.
The ARSD regulations above address South Dakota's program for
enforcement of control measures.
    Turning to the second sub-element, regulation of new and modified
minor sources and minor modifications of major sources, South Dakota
has a SIP-approved minor new source review (NSR) program, adopted under
section 110(a)(2)(C) of the Act. The State and the EPA have relied on
the State's existing minor NSR program to assure that new and modified
sources not captured by the major NSR permitting program do not
interfere with attainment and maintenance of the NAAQS. We propose to
determine that this program regulates construction of new and modified
minor sources of ozone precursors for purposes of the 2015 ozone NAAQS.
    Lastly, to generally meet the requirements of CAA section
110(a)(2)(C) with regard to the sub-element of preconstruction
permitting of major sources and major modifications in areas designated
attainment or unclassifiable for the subject NAAQS as required by CAA
Title I part C, a state is required to have PSD, nonattainment NSR
(NNSR), and minor NSR permitting programs adequate to implement the
2015 ozone NAAQS. The EPA interprets the CAA to require each state to
make an infrastructure SIP submission for a new or revised NAAQS that
demonstrates that the air agency has a complete PSD permitting program
meeting the current requirements for all regulated NSR pollutants. To
meet this requirement, South Dakota cited its PSD program codified at
ARSD Chapter 74:36:09. We most recently approved revisions to South
Dakota's PSD program on September 11, 2019 (84 FR 47887), and we most
recently approved revisions to South Dakota's NNSR program on July 26,
2018 (83 FR 29698.) The EPA is proposing to approve South Dakota's
infrastructure SIP for the 2015 ozone NAAQS with respect to the general
requirement in section 110(a)(2)(C) to include a PSD program in the SIP
that covers all regulated pollutants including greenhouse gases (GHGs).
    In addition to these requirements, there are four other revisions
to the South Dakota SIP that are necessary to meet the requirements of
infrastructure element 110(a)(2)(C). These four revisions are related
to (1) the Ozone Implementation NSR Update (November 29, 2005, 70 FR
71612); (2) the ``Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule'' (June 3, 2010, 75 FR 31514); (3) the
NSR PM2.5 Rule (May 16, 2008, 73 FR 28321); and (4) the
final rulemaking entitled ``Prevention of Significant Deterioration
(PSD) for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels (SILs) and
Significant Monitoring Concentration (SMC)'' (75 FR 64864, Oct. 20,
2010).
    We approved revisions to South Dakota's PSD program that addressed
the PSD requirements of the Phase 2 Ozone Implementation Rule
promulgated on November 29, 2005 (70 FR 71612). As a result, the
approved South Dakota PSD program meets the current requirements for
ozone.
    With respect to GHGs, on June 23, 2014, the United States Supreme
Court addressed the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency,134 S.Ct. 2427 (2014). The Supreme Court held that the EPA may
not treat GHGs as an air pollutant for purposes of determining whether
a source is a major source required to obtain a PSD permit. The Court
also held that the EPA could continue to require that PSD permits,
otherwise required based on emissions of pollutants other than GHGs,
(``anyway'' sources) \3\ contain limitations on GHG emissions based on
the application of Best Available Control Technology (BACT).
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    \3\ See 77 FR 41066 (July 12, 2012) (rulemaking for definition
of ``anyway'' sources).
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    In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (the
D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F.
App'x. 6, at *7-8 (D.C. Cir. April 10, 2015), issued an amended
judgment vacating the regulations that implemented Step 2 of the EPA's
PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations
that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers
sources that are required to obtain a PSD permit based on emissions of
pollutants other than GHGs. Step 2 applied to sources that emitted only
GHGs above the thresholds triggering the requirement to obtain a PSD
permit. The amended judgment preserves, without the need for additional
rulemaking by the EPA, the application of the BACT requirement to GHG
emissions from

Step 1 or ``anyway sources.'' With respect to Step 2 sources, the D.C.
Circuit's amended judgment vacated the regulations at issue in the
litigation, including 40 CFR 51.166(b)(48)(v), ``to the extent they
require a stationary source to obtain a PSD permit if greenhouse gases
are the only pollutant (i) that the source emits or has the potential
to emit above the applicable major source thresholds, or (ii) for which
there is a significant emission increase from a modification.'' The EPA
subsequently revised our PSD regulations to remove the vacated
provisions. 80 FR 50199 (Aug. 19, 2015).
    The EPA has subsequently revised our PSD regulations in response to
the Court's decision and the subsequent amended judgment by the U.S.
Court of Appeals for the District of Columbia Circuit (the D.C.
Circuit) in Coalition for Responsible Regulation v. EPA, 606 F. App'x.
6, at *7-8 (D.C. Cir. April 10, 2015). South Dakota generally
incorporates by reference (IBR) the EPA's PSD regulations found in 40
CFR 52.21. These can be found in the State's SIP at 74:36:09. We
recently approved revisions to update South Dakota's IBR in 40 CFR
52.21 as of July 1, 2016. Thus, we find that the South Dakota PSD
program is consistent with our revised regulations. See 83 FR 296987
(June 26, 2018.) Thus, South Dakota's PSD program is current with
respect to regulation of GHGs.
    Finally, we evaluate the PSD program with respect to current
requirements for PM2.5. In particular, on May 16, 2008, the
EPA promulgated the rule, ``Implementation of the New Source Review
Program for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)'' (73 FR 28321) and on October 20, 2010, the EPA
promulgated the rule, ``Prevention of Significant Deterioration (PSD)
for Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant Monitoring
Concentration (SMC)'' (75 FR 64864). The EPA regards adoption of these
PM2.5 rules as a necessary requirement when assessing a PSD
program for the purposes of element (C).
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), remanded the EPA's
2007 and 2008 rules implementing the 1997 PM2.5 NAAQS. The
Court ordered the EPA to ``repromulgate these rules pursuant to Subpart
4 consistent with this opinion.'' Id. at 437. Subpart 4 of part D,
Title 1 of the CAA establishes additional provisions for PM
nonattainment areas.
    The 2008 implementation rule addressed by the court decision,
``Implementation of New Source Review (NSR) Program for Particulate
Matter Less Than 2.5 Micrometers (PM2.5)'' (73 FR 28321, May
16, 2008), promulgated NSR requirements for implementation of
PM2.5 in nonattainment areas (NNSR) and attainment/
unclassifiable areas (PSD). As the requirements of Subpart 4 only
pertain to nonattainment areas, the EPA does not consider the portions
of the 2008 Implementation rule that address requirements for
PM2.5 attainment and unclassifiable areas to be affected by
the decision. Moreover, the EPA does not anticipate the need to revise
any PSD requirements promulgated in the 2008 Implementation rule in
order to comply with the court's decision. Accordingly, the EPA's
proposed approval of South Dakota's infrastructure SIP for elements C
or J with respect to the PSD requirements promulgated by the 2008
Implementation rule does not conflict with the court's opinion.
    The court's decision with respect to the NNSR requirements
promulgated by the 2008 Implementation rule also does not affect the
EPA's action on the present infrastructure action. The EPA interprets
the Act to exclude nonattainment area requirements, including
requirements associated with a NNSR program, from infrastructure SIP
submissions due three years after adoption or revision of a NAAQS.
Instead, these elements are typically referred to as nonattainment SIP
or attainment plan elements, which would be due by the dates
statutorily prescribed under subpart 2 through 5 under part D,
extending as far as 10 years following designations for some elements.
    The second PSD requirement for PM2.5 is contained in the
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration
(PSD) for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels (SILs) and
Significant Monitoring Concentration (SMC)'' (75 FR 64864). The EPA
regards adoption of the PM2.5 increments as a necessary
requirement when assessing a PSD program for the purposes of element
(C). South Dakota generally incorporates by reference (IBR) the EPA's
PSD regulations found in 40 CFR 52.21. These can be found in the
State's SIP at 74:36:09.
    As mentioned above, we are proposing to approve the January 3, 2020
submitted revisions to the ARSD by the State. The State's January 3,
2020 submission includes a revision to ARSD 74:36:09 and proposes an
update to the federal reference date to July 1, 2018. Thus, this
submitted revision makes South Dakota's PSD program up to date with
respect to current requirements for PM2.5 and meets current
requirements for PM2.5.
    The EPA therefore is proposing to approve South Dakota's SIP for
the 2015 ozone NAAQS with respect to the requirement in section
110(a)(2)(C) to include a permit program in the SIP as required by part
C of the Act.
    The State has a SIP-approved minor NSR program, adopted under
section 110(a)(2)(C) of the Act. The minor NSR program is found in
74:36:04 of the South Dakota SIP, and was originally approved by the
EPA on December 18, 1998 (63 FR 55804). Since approval of the minor NSR
program, the State and the EPA have relied on the program to ensure
that new and modified sources not captured by the major NSR permitting
programs do not interfere with attainment and maintenance of the NAAQS.
Therefore, based on the foregoing, the EPA is proposing to fully
approve South Dakota's infrastructure SIP for the 2015 ozone NAAQS with
respect to the general requirement in section 110(a)(2)(C) to include a
program in the SIP that regulates the modification and construction of
any stationary source as necessary to assure that the NAAQS are
achieved.
    Therefore, based on the foregoing, the EPA is proposing to approve
South Dakota's infrastructure SIP for the 2015 ozone NAAQS with respect
to the general requirement in section 110(a)(2)(C) to include a program
in the SIP that regulates the enforcement of control measures in the
SIP, and the modification and construction of any stationary source as
necessary to assure that the NAAQS are achieved.

D. CAA Section 110(a)(2)(D): Interstate Transport

    CAA section 110(a)(2)(D)(i) consists of four separate elements, or
``prongs.'' CAA section 110(a)(2)(D)(i)(I) requires SIPs to contain
adequate provisions prohibiting emissions which will contribute
significantly to nonattainment of the NAAQS in any other state (prong
1), and adequate provisions prohibiting emissions which will interfere
with maintenance of the NAAQS by any other state (prong 2). CAA section
110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions
prohibiting emissions which will interfere with any other state's
required measures to prevent significant deterioration of its air
quality (prong 3), and adequate provisions prohibiting emissions which
will interfere with any other state's required measures to protect
visibility (prong 4). Under section 110(a)(2)(D)(i)(I) of the CAA, the
EPA and states must give independent

significance to prong 1 and prong 2 when evaluating downwind air
quality problems under section 110(a)(2)(D)(i)(i)(I).\4\
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    \4\ See North Carolina v. EPA, 531 F.3d 896, 909-911 (2008).
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    With regard to the prong 1 and prong 2 requirements of CAA section
110(a)(2)(D)(i)(I), the EPA has addressed these requirements with
respect to prior ozone NAAQS in several regional regulatory actions,
including the Cross-State Air Pollution Rule (CSAPR), which addressed
interstate transport with respect to the 1997 ozone NAAQS as well as
the 1997 and 2006 fine PM standards, and the CSAPR Update for the 2008
ozone NAAQS (CSAPR Update).\5\ These actions only addressed interstate
transport in the Eastern United States \6\ and did not address the 2015
ozone NAAQS.
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    \5\ See 76 FR 48208 (August 8, 2011) (i.e., CSAPR) and 81 FR
74504 (October 26, 2016) (i.e., CSAPR Update).
    \6\ For purposes of the CSAPR and CSAPR Update actions, the
Western U.S. (or the West) was considered to consist of the 11
western contiguous states of Arizona, California, Colorado, Idaho,
Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming.
The Eastern U.S. (or the East) was considered to consist of the 37
states east of the 11 Western states.
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    Through the development and implementation of CSAPR, the CSAPR
Update and previous regional rulemakings pursuant to the good neighbor
provision,\7\ the EPA, working in partnership with states, developed
the following four-step interstate transport framework to address the
requirements of the good neighbor provision for the ozone NAAQS: \8\
(1) Identify downwind air quality problems; (2) identify upwind states
that impact those downwind air quality problems sufficiently such that
they are considered ``linked'' and therefore warrant further review and
analysis; (3) identify the emissions reductions necessary (if any),
considering cost and air quality factors, to prevent linked upwind
states identified in step 2 from contributing significantly to
nonattainment or interfering with maintenance of the NAAQS at the
locations of the downwind air quality problems; and (4) adopt permanent
and enforceable measures needed to achieve those emissions reductions.
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    \7\ Other regional rulemakings addressing ozone transport
include the NOX SIP Call, 63 FR 57356 (October 27, 1998),
and the Clean Air Interstate Rule (CAIR), 70 FR 25162 (May 12,
2005).
    \8\ The four-step interstate framework has also been used to
address requirements of the good neighbor provision for some
previous particulate matter and ozone NAAQS, including in the
Western United States. See, e.g., 83 FR 30380 (June 28, 2018) and 83
FR 5375, 5376-77 (February 7, 2018).
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    The EPA has released several documents containing information
relevant to evaluating interstate transport with respect to the 2015
ozone NAAQS. First, on January 6, 2017, the EPA published a notice of
data availability (NODA) with preliminary interstate ozone transport
modeling with projected ozone design values for 2023, on which we
requested comment.\9\ The year 2023 was used as the analytic year for
this preliminary modeling because that year aligns with the expected
attainment year for Moderate ozone nonattainment areas.\10\ On October
27, 2017, we released a memorandum (October 2017 Memo) containing
updated modeling data for 2023, which incorporated changes made in
response to comments on the NODA.\11\ Although the October 2017 Memo
released data for a 2023 modeling year, we specifically stated that the
modeling may be useful for states developing SIPs to address remaining
good neighbor obligations for the 2008 ozone NAAQS but did not address
the 2015 ozone NAAQS. And, on March 27, 2018, we issued a memorandum
(March 2018 Memo) indicating the same 2023 modeling data released in
the October 2017 Memo could also be useful for evaluating potential
downwind air quality problems with respect to the 2015 ozone NAAQS
(step 1 of the four-step framework).
---------------------------------------------------------------------------

    \9\ See Notice of Availability of the Environmental Protection
Agency's Preliminary Interstate Ozone Transport Modeling Data for
the 2015 Ozone National Ambient Air Quality Standard (NAAQS), 82 FR
1733 (January 6, 2017).
    \10\ 82 FR 1735 (January 6, 2017).
    \11\ See Information on the Interstate Transport State
Implementation Plan Submissions for the 2008 Ozone National Ambient
Air Quality Standards under Clean Air Act Section
110(a)(2)(D)(i)(I), October 27, 2017, available in the docket for
this action or at https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices.
---------------------------------------------------------------------------

    The March 2018 Memo included newly available contribution modeling
results to assist states in evaluating their impact on potential
downwind air quality problems (step 2 of the four-step framework) in
their efforts to develop good neighbor SIPs for the 2015 ozone NAAQS to
address their interstate transport obligations.\12\ The EPA
subsequently issued two more memoranda in August and October 2018,
providing guidance to states developing good neighbor SIPs for the 2015
NAAQS concerning, respectively, potential contribution thresholds that
may be appropriate to apply in step 2 and considerations for
identifying downwind areas that may have problems maintaining the
standard (under interstate transport prong 2) at step 1 of the
framework.\13\
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    \12\ See Information on the Interstate Transport State
Implementation Plan Submissions for the 2015 Ozone National Ambient
Air Quality Standards under Clean Air Act Section
110(a)(2)(D)(i)(I), March 27, 2018, available in the docket for this
action or at. https://www.epa.gov/interstate-air-pollution-transport/memos-and-notices-regarding-interstate-air-pollution-transport.
    \13\ See Analysis of Contribution Thresholds for Use in Clean
Air Act Section 110(a)(2)(D)(i)(I) Interstate Transport State
Implementation Plan Submissions for the 2015 Ozone National Ambient
Air Quality Standards, August 31, 2018) (``August 2018
memorandum''), and Considerations for Identifying Maintenance
Receptors for Use in Clean Air Act Section 110(a)(2)(D)(i)(I)
Interstate Transport State Implementation Plan Submissions for the
2015 Ozone National Ambient Air Quality Standards, October 19, 2018,
available in the docket for this action or at https://www.epa.gov/airmarkets/memo-and-supplemental-information-regarding-interstate-transport-sips-2015-ozone-naaqs.
---------------------------------------------------------------------------

    The March 2018 Memo describes the process and results of the
updated photochemical and source-apportionment modeling used to project
ambient ozone concentrations for the year 2023 and the state-by state
impacts on those concentrations. The March 2018 Memo also explains that
the selection of the 2023 analytic year aligns with the 2015 NAAQS
attainment year for Moderate nonattainment areas. As described in more
detail in the October 2017 and March 2018 memoranda, the EPA used the
Comprehensive Air Quality Model with Extensions (CAMx version 6.40) to
model average and maximum design values in 2023 to identify potential
nonattainment and maintenance receptors (i.e., monitoring sites that
are projected to have problems attaining or maintaining the 2015 ozone
NAAQS). The March 2018 Memo presents design values calculated in two
ways: first, following the EPA's historic ``3 x 3'' approach \14\ to
evaluating all sites, and second, following a modified approach for
coastal monitoring sites in which ``overwater'' modeling data were not
included in the calculation of future year design values (referred to
as the ``no water'' approach).
---------------------------------------------------------------------------

    \14\ See March 2018 Memo, at 4.
---------------------------------------------------------------------------

    For purposes of identifying potential nonattainment and maintenance
receptors in 2023, the EPA applied the same approach used in the CSAPR
Update, wherein the EPA considered a combination of monitoring data and
modeling projections to identify monitoring sites that are projected to
have problems attaining or maintaining the NAAQS. Specifically, the EPA
identified nonattainment receptors as those monitoring sites with
measured values \15\ exceeding the NAAQS that also have projected
(i.e., in 2023) average design values exceeding the

NAAQS. The EPA identified maintenance receptors as those monitoring
sites with projected maximum design values exceeding the NAAQS. This
included sites with measured values below the NAAQS but with projected
average and maximum design values exceeding the NAAQS, and monitoring
sites with projected average design values below the NAAQS but with
projected maximum design values exceeding the NAAQS. The EPA included
the design values and monitoring data for all monitoring sites
projected to be potential nonattainment or maintenance receptors based
on the updated 2023 modeling in Attachment B to the March 2018 Memo.
---------------------------------------------------------------------------

    \15\ The EPA used 2016 ozone design values, based on 2014--2016
measured data, which were the most current data at the time of the
analysis. See attachment B of the March 2018 Memo, at B-1.
---------------------------------------------------------------------------

    After identifying potential downwind nonattainment and maintenance
receptors, the EPA next performed nationwide, state-level ozone source-
apportionment modeling to estimate the expected impact from each state
to each nonattainment and maintenance receptor.\16\ The EPA included
contribution information resulting from the source-apportionment
modeling in Attachment C to the March 2018 Memo. For more specific
information on the modeling and analysis, please see the 2017 and March
2018 memoranda, the NODA for the preliminary interstate transport
assessment, and the supporting technical documents included in the
docket for this action.
---------------------------------------------------------------------------

    \16\ As discussed in the March 2018 Memo, the EPA performed
source-apportionment model runs for a modeling domain that covers
the 48 contiguous United States and the District of Columbia, and
adjacent portions of Canada and Mexico.
---------------------------------------------------------------------------

    In the CSAPR and the CSAPR Update, the EPA used a threshold of one
percent of the NAAQS to determine whether a given upwind state was
``linked'' at step 2 of the four-step framework and would therefore
contribute to downwind nonattainment and maintenance sites identified
in step 1. If a state's impact did not equal or exceed the one percent
threshold, the upwind state was not ``linked'' to a downwind air
quality problem, and the EPA therefore concluded the state will not
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS in the downwind states. However, if a state's impact
equaled or exceeded the one percent threshold, the state's emissions
were further evaluated in step 3, taking into account both air quality
and cost considerations, to determine what, if any, emissions
reductions might be necessary to address the good neighbor provision.
    As noted previously, on August 31, 2018, the EPA issued a
memorandum (August 2018 Memo) providing guidance concerning potential
contribution thresholds that may be appropriate to apply with respect
to the 2015 NAAQS in step 2. Consistent with the process for selecting
the one percent threshold in CSAPR and the CSAPR Update, the August
2018 Memo included analytical information regarding the degree to which
potential air quality thresholds would capture the collective amount of
upwind contribution from upwind states to downwind receptors for the
2015 ozone NAAQS. The August 2018 Memo indicated that, based on the
EPA's analysis of its most recent modeling data, the amount of upwind
collective contribution captured using a 1 ppb threshold is generally
comparable, overall, to the amount captured using a threshold
equivalent to one percent of the 2015 ozone NAAQS. Accordingly, the EPA
indicated that it may be reasonable and appropriate for states to use a
1 ppb contribution threshold, as an alternative to the one percent
threshold, at step 2 of the four-step framework in developing their SIP
revisions addressing the good neighbor provision for the 2015 ozone
NAAQS.\17\
---------------------------------------------------------------------------

    \17\ See August 2018 Memo, at 4.
---------------------------------------------------------------------------

    While the March 2018 Memo presented information regarding the EPA's
latest analysis of ozone transport following the approaches the EPA has
taken in prior regional rulemaking actions, the EPA has not made any
final determinations regarding how states should identify downwind
receptors with respect to the 2015 ozone NAAQS at step 1 of the four-
step framework. Rather, the EPA noted that states have flexibility in
developing their own SIPs to follow different analytical approaches
than the EPA's, so long as their chosen approach has an adequate
technical justification and is consistent with the requirements of the
CAA.
    The prong 3 (PSD) requirement of CAA section 110(a)(2)(D)(II) may
be met for all NAAQS by a state's confirmation in an infrastructure SIP
submission that new major sources and major modifications in the state
are subject to a comprehensive EPA-approved PSD permitting program in
the SIP that applies to all regulated NSR pollutants and that satisfies
the requirements of the EPA's PSD implementation rule(s).\18\
---------------------------------------------------------------------------

    \18\ See 2013 Memo.
---------------------------------------------------------------------------

    To meet the prong 4 (visibility) requirement of CAA section
110(a)(2)(D)(i)(II) under the 2015 ozone NAAQS, a SIP must address the
potential for interference with visibility protection caused by ozone,
including precursors. An approved regional haze SIP that fully meets
the regional haze requirements in 40 CFR 51.308 satisfies the
110(a)(2)(D)(i)(II) requirement for visibility protection as it ensures
that emissions from the state will not interfere with measures required
to be included in other state SIPs to protect visibility. In the
absence of a fully approved regional haze SIP, a state can still make a
demonstration that satisfies the visibility requirement section of
110(a)(2)(D)(i)(II).\19\
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    \19\ See 2013 Memo. In addition, the EPA approved the visibility
requirement of 110(a)(2)(D)(i) for the 1997 Ozone and
PM2.5 NAAQS for Colorado before taking action on the
State's regional haze SIP. 76 FR 22036 (April 20, 2011).
---------------------------------------------------------------------------

    CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions
ensuring compliance with the applicable requirements of CAA sections
126 and 115 (relating to interstate and international pollution
abatement). CAA section 126 requires notification to neighboring states
of potential impacts from a new or modified major stationary source and
specifies how a state may petition the EPA when a major source or group
of stationary sources in a state is thought to contribute to certain
pollution problems in another state. CAA section 115 governs the
process for addressing air pollutants emitted in the United States that
cause or contribute to air pollution that may reasonably be anticipated
to endanger public health or welfare in a foreign country.
    (i) State's submission:
    South Dakota's January 15, 2020 submission includes an interstate
transport analysis for prongs 1 and 2 that focused on the modeling
information provided in the EPA's March 2018 Memo. South Dakota
concludes that the modeling results from the March 2018 Memo indicate
that South Dakota sources do not contribute significantly to
nonattainment or interfere with maintenance of the 2015 ozone NAAQS in
any other state.
    To address prong 3, South Dakota references the PSD program in ARSD
Chapters 74:36:09 and 74:36:20 of the South Dakota SIP, which the State
asserts meets all federal requirements and applies to all regulated
pollutants. South Dakota's submission states that it requires new
sources or modifications to existing sources to apply for and obtain an
air quality permit before constructing, and the State reviews the
application to ensure that the new source or modification will not
cause a NAAQS exceedance.
    To address prong 4, South Dakota references its EPA-approved
Regional Haze SIP to demonstrate that the State does not interfere with
visibility for the

2015 ozone NAAQS in any other state (77 FR 24845, April 26, 2012).
    To address CAA section 110(a)(2)(D)(ii), South Dakota states that
there are no findings against the State under CAA sections 115 or 126
with respect to any pollutant. South Dakota also states that its
approved PSD program requires the State to provide written notification
to all nearby states and tribes treated as states of the potential
impacts from major new sources or major modifications of existing
sources, satisfying CAA section 126(a). For these reasons, South Dakota
asserts that its SIP meets the requirements of CAA section
110(a)(2)(D)(ii) for the 2015 ozone NAAQS.
    (ii) The EPA's Analysis:
Prongs 1 and 2: Significant Contribution to Nonattainment and
Interference With Maintenance
    The EPA is proposing to rely on the 2023 modeling data identifying
downwind receptors and upwind state contributions, as released in the
March 2018 memorandum, to evaluate South Dakota's good neighbor
obligation with respect to the 2015 ozone NAAQS. On September 13, 2019,
the D.C. Circuit issued its decision in Wisconsin v. EPA addressing
legal challenges to the CSAPR Update, in which the EPA partially
addressed certain upwind states' good neighbor obligations for the 2008
ozone NAAQS. 938 F.3d 303. While the court generally upheld the rule as
to most of the challenges raised in the litigation, the court remanded
the CSAPR Update to the extent it failed to require upwind states to
eliminate their significant contributions in accordance with the
attainment dates found in CAA section 181 by which downwind states must
come into compliance with the NAAQS. Id. at 313. In light of the
court's decision, the EPA is providing further explanation regarding
why it proposes to find that it is appropriate and consistent with the
statute--as well as the legal precedent--to use the 2023 analytic year
for assessing good neighbor obligations for the 2015 ozone NAAQS.
    The EPA believes that 2023 is an appropriate year for analysis of
good neighbor obligations for the 2015 ozone NAAQS because the 2023
ozone season is the last relevant ozone season during which achieved
emissions reductions in linked upwind states could assist downwind
states with meeting the August 3, 2024 Moderate area attainment date
for the 2015 ozone NAAQS. The EPA recognizes that the attainment date
for nonattainment areas classified as Marginal for the 2015 ozone NAAQS
is August 3, 2021, which currently applies in several downwind
nonattainment areas evaluated in the EPA's modeling.\20\ However, as
explained below, the EPA does not believe that either the statute or
applicable case law requires the evaluation of good neighbor
obligations in a future year aligned with the attainment date for
nonattainment areas classified as Marginal.
---------------------------------------------------------------------------

    \20\ The Marginal area attainment date is not applicable for
nonattainment areas already classified as Moderate or higher, such
as the New York Metropolitan Area. For the status of all
nonattainment areas under the 2015 ozone NAAQS, see U.S. EPA, 8-Hour
Ozone (2015) Designated Area/State Information, https://www3.epa.gov/airquality/greenbook/jbtc.html (last updated Sept. 30,
2019).
---------------------------------------------------------------------------

    The good neighbor provision instructs the EPA and states to apply
its requirements ``consistent with the provisions of'' title I of the
CAA. CAA section 110(a)(2)(D)(i); see also North Carolina v. EPA, 531
F.3d 896, 911-12 (DC Cir. 2008). This consistency instruction follows
the requirement that plans ``contain adequate provisions prohibiting''
certain emissions in the good neighbor provision. As the D.C. Circuit
held in North Carolina, and more recently in Wisconsin, the good
neighbor provision must be applied in a manner consistent with the
designation and planning requirements in title I that apply in downwind
states and, in particular, the timeframe within which downwind states
are required to implement specific emissions control measures in
nonattainment areas and submit plans demonstrating how those areas will
attain, relative to the applicable attainment dates. See North
Carolina, 896 F.3d at 912 (holding that the good neighbor provision's
reference to title I requires consideration of both procedural and
substantive provisions in title I); Wisconsin, 938 F.3d at 313-18.
    While the EPA recognizes, as the court held in North Carolina and
Wisconsin, that upwind emissions-reduction obligations therefore must
generally be aligned with downwind receptors' attainment dates, unique
features of the statutory requirements associated with the Marginal
area planning requirements and attainment date under CAA section 182
lead the EPA to conclude that it is more reasonable and appropriate to
require the alignment of upwind good neighbor obligations with later
attainment dates applicable for Moderate or higher classifications.
Under the Clean Air Act, states with areas designated nonattainment are
generally required to submit, as part of their state implementation
plan, an ``attainment demonstration'' that shows, usually through air
quality modeling, how an area will attain the NAAQS by the applicable
attainment date. See CAA section 172(c)(1).\21\ Such plans must also
include, among other things, the adoption of all ``reasonably
available'' control measures on existing sources, a demonstration of
``reasonable further progress'' toward attainment, and contingency
measures, which are specific controls that will take effect if the area
fails to attain by its attainment date or fails to make reasonable
further progress toward attainment. See, e.g., CAA section 172(c)(1);
172(c)(2); 172(c)(9). Ozone nonattainment areas classified as Marginal
are excepted from these general requirements under the CAA--unlike
other areas designated nonattainment under the Act (including for other
NAAQS pollutants), Marginal ozone nonattainment areas are specifically
exempted from submitting an attainment demonstration and are not
required to implement any specific emissions controls at existing
sources in order to meet the planning requirements applicable to such
areas. See CAA section 182(a) (``The requirements of this subsection
shall apply in lieu of any requirement that the State submit a
demonstration that the applicable implementation plan provides for
attainment of the ozone standard by the applicable attainment date in
any Marginal Area.'') \22\ Marginal ozone nonattainment areas are also
exempted from demonstrating reasonable further progress towards
attainment and submitting contingency measures. See CAA section 182(a)
(does not include a reasonable further progress requirement and
specifically notes that ``Section [172(c)(9)] of this title (relating
to contingency measures) shall not apply to Marginal Areas'').
---------------------------------------------------------------------------

    \21\ Part D of title I of the Clean Air Act provides the plan
requirements for all nonattainment areas. Subpart 1, which includes
section 172(c), applies to all nonattainment areas. Congress
provided in subparts 2-5 additional requirements specific to the
various NAAQS pollutants that nonattainment areas must meet.
    \22\ States with Marginal nonattainment areas are required to
implement new source review permitting for new and modified sources,
but the purpose of those requirements is to ensure that potential
emissions increases do not interfere with progress towards
attainment, as opposed to reducing existing emissions. Moreover, the
EPA acknowledges that states within ozone transport regions must
implement certain emission control measures at existing sources in
accordance with CAA section 184, but those requirements apply
regardless of the applicable area designation or classification.
---------------------------------------------------------------------------

    Existing regulations--either local, state, or federal--are
typically a part of the reason why ``additional'' local

controls are not needed to bring Marginal nonattainment areas into
attainment. As described in the EPA's record for its final rule
defining area classifications for the 2015 ozone NAAQS and establishing
associated attainment dates, history has shown that the majority of
areas classified as Marginal for prior ozone standards attained the
respective standards by the Marginal area attainment date (i.e.,
without being re-classified to a Moderate designation). 83 FR 10376. As
part of a historical lookback, the EPA calculated that by the relevant
attainment date for areas classified as Marginal, 85 percent of such
areas attained the 1979 1-hour ozone NAAQS, and 64 percent attained the
2008 ozone NAAQS. See Response to Comments, section A.2.4.\23\ Based on
these historical data, the EPA expects that many areas classified
Marginal for the 2015 ozone NAAQS will also attain by the relevant
attainment date as a result of emissions reductions that are already
expected to occur through implementation of existing local, state and
federal emissions reduction programs. To the extent states have
concerns about meeting their attainment date for a Marginal area, the
CAA under section 181(b)(3) provides authority for them to voluntarily
request a higher classification for individual areas, if needed.
---------------------------------------------------------------------------

    \23\ Available at https://www.regulations.gov/document?D=EPA-HQ-OAR-2016-0202-0122.
---------------------------------------------------------------------------

    Areas that are classified as Moderate typically have more
pronounced air quality problems than Marginal areas or have been unable
to attain the NAAQS under the minimal requirements that apply to
Marginal areas. See CAA sections 181(a)(1) (classifying areas based on
the degree of nonattainment relative to the NAAQS) and (b)(2)
(providing for reclassification to the next highest designation upon
failure to attain the standard by the attainment date). Thus, unlike
Marginal areas, the statute explicitly requires a state with an ozone
nonattainment area classified as Moderate or higher to develop an
attainment plan demonstrating how the state will address the more
significant air quality problem, which generally requires the
application of various control measures to existing sources of
emissions located in the nonattainment area. See generally CAA sections
172(c) and 182(b)-(e).
    Given that downwind states are not required to demonstrate
attainment by the attainment date or impose additional controls on
existing sources in a Marginal nonattainment area, the EPA believes
that it would be inconsistent to interpret the good neighbor provision
as requiring the EPA to evaluate the necessity for upwind state
emissions reductions based on air quality modeled in a future year
aligned with the Marginal area attainment date. Rather, the EPA
believes it is more appropriate and consistent with the nonattainment
planning provisions in title I to evaluate downwind air quality and
upwind state contributions, and, therefore, the necessity for upwind
state emissions reductions, in a year aligned with an area
classification in connection with which downwind states are also
required to demonstrate attainment and implement controls on existing
sources--i.e., with the Moderate area attainment date, rather than the
Marginal area date. With respect to the 2015 ozone NAAQS, the Moderate
area attainment date will be in the summer of 2024, and the last full
year of monitored ozone-season data that will inform attainment
demonstrations is, therefore, 2023.
    The EPA's interpretation of the good neighbor requirements in
relation to the Marginal area attainment date is consistent with the
Wisconsin opinion. For the reasons explained below, the court's holding
does not contradict the EPA's view that 2023 is an appropriate analytic
year in evaluating good neighbor SIPs for the 2015 ozone NAAQS. The
court in Wisconsin was concerned that allowing upwind emission
reductions to be implemented after the applicable attainment date would
require downwind states to obtain more emissions reductions than the
Act requires of them, to make up for the absence of sufficient
emissions reductions from upwind states. See 938 F.3d at 316. As
discussed previously, however, this equitable concern only arises for
nonattainment areas classified as Moderate or higher for which downwind
states are required by the CAA to develop attainment plans securing
reductions from existing sources and demonstrating how such areas will
attain by the attainment date. See, e.g., CAA section 182(b)(1) & (2)
(establishing ``reasonable further progress'' and ``reasonably
available control technology'' requirements for Moderate nonattainment
areas). Ozone nonattainment areas classified as Marginal are not
required to meet these same planning requirements, and thus the
equitable concerns raised by the Wisconsin court do not arise with
respect to downwind areas subject to the Marginal area attainment date.
    The distinction between planning obligations for Marginal
nonattainment areas and higher classifications was not before the court
in Wisconsin. Rather, the court was considering whether the EPA, in
implementing its obligation to promulgate federal implementation plans
under CAA section 110(c), was required to fully resolve good neighbor
obligations by the 2018 Moderate area attainment date for the 2008
ozone NAAQS. See 938 F.3d at 312-13. Although the court noted that
petitioners had not ``forfeited'' an argument with respect to the
Marginal area attainment date, see id. at 314, the court did not
address whether its holding with respect to the 2018 Moderate area date
would have applied with equal force to the Marginal area attainment
date because that date had already passed. Thus, the court did not have
the opportunity to consider these differential planning obligations in
reaching its decision regarding the EPA's obligations relative to the
then-applicable 2018 Moderate area attainment date because such
considerations were not applicable to the case before the court.\24\
For the reasons discussed here, the equitable concerns supporting the
Wisconsin court's holding as to upwind state obligations relative to
the Moderate area attainment date also support the EPA's interpretation
of the good neighbor provision relative to the Marginal area attainment
date. Thus, the EPA proposes to conclude that its reliance on an
evaluation of air quality in the 2023 analytical year for purposes of
assessing good neighbor obligations with respect to the 2015 ozone
NAAQS is based on a reasonable interpretation of the CAA and legal
precedent.
---------------------------------------------------------------------------

    \24\ The D.C. Circuit, in a short judgment, subsequently vacated
and remanded the EPA's action purporting to fully resolve good
neighbor obligations for certain states for the 2008 ozone NAAQS,
referred to as the CSAPR Close-Out, 83 FR 65878 (Dec. 21, 2018). New
York v. EPA, No. 19-1019 (Oct. 1, 2019). That result necessarily
followed from the Wisconsin decision, because as the EPA conceded,
the Close-Out ``relied upon the same statutory interpretation of the
Good Neighbor Provision'' rejected in Wisconsin. Id. slip op. at 3.
In the Close-Out, the EPA had analyzed the year 2023, which was two
years after the Serious area attainment date for the 2008 ozone
NAAQS and not aligned with any attainment date for that NAAQS. Id.
at 2. In New York, as in Wisconsin, the court was not faced with
addressing specific issues associated with the unique planning
requirements associated with the Marginal area attainment date.
---------------------------------------------------------------------------

    As previously discussed, the March 2018 memorandum identifies
potential downwind nonattainment and maintenance receptors, using the
definitions applied in the CSAPR Update and using both the ``3 x 3''
and the ``no water'' approaches to calculating future year design
values. The March 2018 memorandum identifies 57 potential nonattainment
and maintenance receptors in the West

in Arizona (2), California (49), and Colorado (6).\25\ The March 2018
memorandum also provides contribution data regarding the impact of
other states on the potential receptors. For purposes of evaluating
South Dakota's 2015 ozone NAAQS interstate transport SIP submission, we
propose that, at least where a state's impacts are less than one
percent to downwind nonattainment and maintenance sites, it is
reasonable to conclude that the State's impact will not significantly
contribute to nonattainment or interfere with maintenance of the NAAQS
in any other state. This is consistent with our prior action on South
Dakota's SIP with respect to the 2008 ozone NAAQS \26\ and with the
EPA's approach to both the 1997 and 2008 ozone NAAQS in CSAPR and the
CSAPR Update. The EPA notes, nonetheless, that consistent with the
August 2018 memorandum, it may be reasonable and appropriate for states
to use a 1 ppb contribution threshold, as an alternative to a one
percent threshold, at step 2 of the four-step framework in developing
their SIP revisions addressing the good neighbor provision for the 2015
ozone NAAQS. However, for the reasons discussed below, it is
unnecessary for the EPA to determine whether it may be appropriate to
apply a 1 ppb threshold for purposes of this action.
---------------------------------------------------------------------------

    \25\ The number of receptors in the identified western states is
57, irrespective of whether the ``3 x 3'' or ``no water'' approach
is used. Further, although the EPA has indicated that states may
have flexibilities to apply a different analytic approach to
evaluating interstate transport, including identifying downwind air
quality problems, because the EPA is also concluding in this
proposed action that Oregon will have an insignificant impact on any
potential receptors identified in its analysis, Oregon need not
definitively determine whether the identified monitoring sites
should be treated as receptors for the 2015 ozone standard.
    \26\ 81 FR 7706, February 16, 2016.
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    The EPA's updated 2023 modeling discussed in the March 2018
memorandum indicates that South Dakota's largest impact on any
potential downwind nonattainment and maintenance receptor are 0.07 ppb
and 0.05 ppb, respectively.\27\ These values are less than 0.70 ppb
(one percent of the 2015 ozone NAAQS),\28\ and as a result, demonstrate
that emissions from South Dakota are not linked to any 2023 downwind
potential nonattainment and maintenance receptors identified in the
March 2018 memorandum. Accordingly, we propose to conclude that
emissions from South Dakota will not contribute to any potential
receptors, and thus, the state will not significantly contribute to
nonattainment or interfere with maintenance of the NAAQS in any other
state.
---------------------------------------------------------------------------

    \27\ The EPA's analysis indicates that South Dakota will have a
0.07 ppb impact at the potential nonattainment receptor in Tarrant
County, Texas (Site ID 484392003), which has a 2023 projected
average design value of 72.5 ppb, and a 2023 projected maximum
design value of 74.8 ppb. The EPA's analysis further indicates that
South Dakota will have a 0.05 ppb impact at potential maintenance
receptors in Allegan, Michigan (Site ID 260050003) and Queens, New
York (Site ID 360810124), which both had projected 2023 average
design values below the 2015 ozone NAAQS (69.0 and 70.2 ppb,
respectively), and 2023 projected maximum design values above the
NAAQS (71.7 and 72.0 ppb, respectively). See the March 2018
memorandum, attachment C.
    \28\ Because none of South Dakota's impacts equal or exceed 0.70
ppb, they necessarily also do not equal or exceed the 1 ppb
contribution threshold discussed in the August 2018 memorandum.
---------------------------------------------------------------------------

    We also note that the EPA has assessed potential transport to the
Shoshone-Bannock Tribes of the Fort Hall Reservation in southeast
Idaho, which the EPA approved to be treated as an affected downwind
state for CAA sections 110(a)(2)(D) and 126. While the Shoshone-Bannock
Tribes do not operate an ozone monitor, the nearest ozone monitors to
the Fort Hall Reservation are in Ada County, Idaho, in the Boise area
and in Butte County, Idaho, in the Idaho Falls area. As discussed
previously, the EPA's modeling did not identify receptors in Idaho and
the ozone monitoring sites nearest to the Fort Hall Reservation were
projected to remain below the current standard. For the Idaho Falls
area monitoring site (Site ID 160230101), which had a 2014-2016 design
value of 60 ppb, the EPA's modeling projects a 2023 maximum design
value of 60.2 ppb and a 2023 average design value of 59.6 ppb, both
below the 70 ppb standard. For the Boise area monitoring site with the
highest projected ozone concentrations (Site ID 160010017), which had a
2014-2016 design value of 67 ppb, the EPA's modeling projects a 2023
maximum design value of 59.8 ppb and a 2023 average design value of
59.4 ppb.\29\ We therefore, propose to find that emissions from South
Dakota will not significantly contribute to nonattainment or interfere
with maintenance of the 2015 ozone NAAQS at the Fort Hall Reservation.
---------------------------------------------------------------------------

    \29\ In attachment A of the October 2017 Memo, the EPA provided
the projected ozone design values at individual monitoring sites
nationwide. The data for the Idaho monitors is presented on page A-
10.
---------------------------------------------------------------------------

    On December 5, 2019, the EPA took final action finding that seven
states, including South Dakota, had failed to submit a complete SIP to
satisfy prongs 1 and 2 for the 2015 ozone NAAQS (84 FR 66612). This
action established a 2-year deadline for EPA to promulgate Federal
Implementation Plans (FIPs) for these states to address interstate
transport of ozone, unless a state submits, and the EPA approves a SIP
addressing these requirements before the EPA promulgates its FIP. South
Dakota submitted the January 15, 2020 infrastructure SIP with the
intention of correcting the issues giving rise to the EPA's December 5,
2019 incompleteness finding. Should the EPA finalize this action as
proposed, the relevant obligations will be addressed, and we will no
longer have a FIP deadline for prongs 1 and 2 of South Dakota's 2015
ozone infrastructure SIP.
Prong 3: Interference With PSD Measures
    As noted, the PSD portion of section 110(a)(2)(D)(i)(II) may be met
by a state's confirmation in an infrastructure SIP submission that new
major sources and major modifications in the state are subject to a
comprehensive EPA-approved PSD permitting program in the SIP that
applies to all regulated NSR pollutants and that satisfies the
requirements of the EPA's PSD implementation rule(s).\30\ As noted in
Section III.(c)(ii) of this proposed action, South Dakota has such a
program, and the EPA is therefore proposing to approve South Dakota's
SIP for the 2015 ozone NAAQS with respect to the requirement in section
110(a)(2)(C) to include a permit program in the SIP as required by part
C of the Act.
---------------------------------------------------------------------------

    \30\ See September 2013 Guidance at 31.
---------------------------------------------------------------------------

    As stated in the 2013 Memo, in-state sources not subject to PSD for
any one or more of the pollutants subject to regulation under the CAA
because they are in a nonattainment area for a NAAQS related to those
particular pollutants may also have the potential to interfere with PSD
in an attainment or unclassifiable area of another state. South Dakota
does not contain any nonattainment areas. The consideration of
nonattainment NSR for element 3 is therefore not relevant as all major
sources locating in the State are subject to PSD. As South Dakota's SIP
meets PSD requirements for all regulated NSR pollutants, the EPA is
proposing to approve the infrastructure SIP submission as meeting the
applicable requirements of prong 3 of section 110(a)(2)(D)(i) for the
2015 ozone NAAQS.
Prong 4: Interference With Measures To Protect Visibility
    In our prong 4 review, the EPA primarily reviewed South Dakota's
regional haze SIP. South Dakota submitted a regional haze SIP to the
EPA on September 19, 2011. The EPA approved South Dakota's regional
haze

SIP on April 26, 2012 (77 FR 24845). The EPA is proposing to find that
as a result of the prior approval of the South Dakota regional haze
SIP, the South Dakota SIP contains adequate provisions to address the
110(a)(2)(D)(i) visibility requirements for the 2015 ozone NAAQS.
Therefore, we are proposing to approve the South Dakota SIP as meeting
the requirements of prong 4 of CAA section 110(a)(2)(D)(i) for this
NAAQS.
110(a)(2)(D)(ii): Interstate and International Transport Provisions
    Regarding CAA section 110(a)(2)(D)(ii), South Dakota's SIP approved
PSD program requires notice to states whose lands may be affected by
the emissions of sources subject to PSD, as required by 40 CFR
51.166(q)(2)(iv).\31\ This suffices to meet the notice requirement of
section 126(a). South Dakota also has no pending obligations under
sections 126(c) or 115(b). Therefore, the South Dakota SIP currently
meets the requirements of those sections. In summary, the South Dakota
SIP satisfies the requirements of CAA section 110(a)(2)(D)(ii) for the
2015 ozone NAAQS.
---------------------------------------------------------------------------

    \31\ See ARSD 74:36:09:03.
---------------------------------------------------------------------------

E. CAA Section 110(a)(2)(E): Adequate Resources

    Section 110(a)(2)(E)(i) requires states to provide necessary
assurances that the state will have adequate personnel, funding, and
authority under state law to carry out the SIP (and is not prohibited
by any provision of federal or state law from carrying out the SIP or
portion thereof). Section 110(a)(2)(E)(ii) requires each state to
comply with the requirements respecting state boards under CAA section
128. Section 110(a)(2)(E)(iii) requires states to ``provide necessary
assurances that, where the State has relied on a local or regional
government, agency, or instrumentality for the implementation of any
[SIP] provision, the State has responsibility for ensuring adequate
implementation of such [SIP] provision.''
    (i) The State's submission:
Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal
Authority Under State Law To Carry Out Its SIP, and Related Issues
    SDCL, specifically 34A-1-4, and 34A-1-7 through 34A-1-10, provide
adequate authority for the State of South Dakota to carry out its SIP
obligations with respect to the 2015 ozone NAQQS. Additionally, SDCL
sections 34A-1-4, 34A-1-5, 34A-1-10(1), 34A-1-59 and 1-40-30, the
State's agreements on EPA 103 and 105 grants and associated matching
funds, also provide necessary funding to the State to carry out its
SIP. Finally, SDCL 34A-1 provides South Dakota with the legal authority
to carry out its SIP and related issues.
    (ii) EPA's analysis:
    The regulations cited by South Dakota in their certification and
contained within this docket provide the necessary assurances that the
State has responsibility for adequate implementation of SIP provisions
by local governments. Therefore, we propose to approve South Dakota's
SIP as meeting the requirements of section 110(a)(E)(i) and (E)(iii)
for the 2015 ozone NAAQS.
Sub-Element (ii): State Boards
    Section 110(a)(2)(E)(ii) requires each state's SIP to contain
provisions that comply with the requirements of section 128 of the CAA.
Section 128 requires SIPs to contain two explicit requirements: (i)
That any board or body which approves permits or enforcement orders
under the CAA shall have at least a majority of members who represent
the public interest and do not derive a significant portion of their
income from persons subject to such permits and enforcement orders; and
(ii) that any potential conflicts of interest by members of such board
or body or the head of an executive agency with similar powers be
adequately disclosed.\32\
---------------------------------------------------------------------------

    \32\ EPA's proposed rule document (79 FR 71040, Dec. 1, 2014)
includes a discussion of the legislative history of CAA section 128.
---------------------------------------------------------------------------

    (i) The State's submission:
    In its January 15, 2020 submission, South Dakota references SDCL 1-
40-25 and 1-40-25.1 in regard to section110(a)(2)(E)(ii). SDCL 1-40-25
and 1-40-25.1 specify the board's composition and that it must comply
with section 128 of the CAA.
    (ii) EPA's analysis:
    Details on how this portion of the SDCL meet the requirements of
section 128 are provided in our December 1, 2014 proposal document (79
FR 71040). In our January 29, 2015 action (80 FR 4799), we
correspondingly approved South Dakota's infrastructure SIP for the 2008
ozone NAAQS for element (E)(ii). South Dakota's SIP continues to meet
the requirements of section 110(a)(2)(E)(ii), and we propose to approve
South Dakota's infrastructure SIP for the 2015 ozone NAAQS for this
element.

F. CAA Section 110(a)(2)(F): Stationary Source Monitoring System

    Section 110(a)(2)(F) requires the SIP to require, as may be
prescribed by the EPA: (i) The installation, maintenance, and
replacement of equipment, and the implementation of other necessary
steps, by owners or operators of stationary sources to monitor
emissions from such sources; (ii) Periodic reports on the nature and
amounts of emissions and emissions-related data from such sources; and
(iii) Correlation of such reports by the state agency with any emission
limitations or standards established pursuant to the Act, which reports
shall be available at reasonable times for public inspection.
    (i) The State's submission:
    The South Dakota statutory provisions listed in the State's
certification (SDCL 34A-1-6 and SDCL 34A-1-12) and contained within
this docket provide authority to establish a program for measurement
and testing of sources, including requirements for sampling and
testing. South Dakota's SIP approved continuous emissions monitoring
system rules (ARSD 74:36:13 and contained within this docket) require
facilities to monitor and report emission data. ARSD 74:36:04:15,
contents of operating permit, requires operating permits for minor
sources to include monitoring and related record keeping and reporting
requirements. Reports contain the quantity of hazardous air pollutants,
in tons, emitted for each 12-month period in the reporting period and
supporting documentation. Operating permits for minor sources must
comply with emission limits and other requirements of the Act (ARSD
74:36:04:04 and ARSD 74:36:04:15). Additionally, ARSD 74:36:05:16.01(9)
is applicable regarding data from sources with title V permits. South
Dakota has an approved title V program (61 FR 2720, Jan. 29, 1996) and
the definition of applicable requirements for a Part 70 source has been
approved into its SIP at ARSD 74:36:01:05. This re-enforces a
facility's record keeping and reporting emissions data responsibilities
under title V permitting, even though the title V program is not
approved into the SIP.
    (ii) The EPA's analysis:
    South Dakota is required to submit emissions data to the EPA for
purposes of the National Emissions Inventory (NEI). The NEI is the
EPA's central repository for air emissions data. The EPA published the
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified
the requirements for collecting and reporting air emissions data (73 FR
76539). The

AERR shortened the time states had to report emissions data from 17 to
12 months, giving states one calendar year to submit emissions data.
All states are required to submit a comprehensive emissions inventory
every three years and report emissions for certain larger sources
annually through the EPA's online Emissions Inventory System (EIS).
States report emissions data for six criteria pollutants and their
associated precursors--nitrogen oxide (NOX), sulfur dioxide
(SO2), ammonia, Pb, carbon monoxide (CO), PM, and volatile
organic compounds (VOCs). South Dakota made its latest update to the
NEI on October 22, 2018. The EPA compiles the emissions data,
supplementing it where necessary, and releases it to the general public
through the website http://www.epa.gov/ttn/chief/eiinformation.html.
    Based on the analysis above, we propose to approve the South
Dakota's SIP as meeting the requirements of CAA section 110(a)(2)(F)
for the 2015 ozone NAAQS.

G. CAA Section 110(a)(2)(G): Emergency Powers

    Section 110(a)(2)(G) of the CAA requires infrastructure SIPs to
``provide for authority comparable to that in [CAA Section 303] and
adequate contingency plans to implement such authority.''
    Under CAA section 303, the Administrator has authority to
immediately restrain an air pollution source that presents an imminent
and substantial endangerment to public health or welfare, or the
environment. If such action may not practicably assure prompt
protection, then the Administrator has authority to issue temporary
administrative orders to protect the public health or welfare, or the
environment, and such orders can be extended if the EPA subsequently
files a civil suit.
    (i) The State's submission:
    South Dakota's SIP submittals with regard to the section
110(a)(2)(G) emergency order requirements explain that SDCL section
34A-1-45 (Emergency order for immediate reduction or discontinuance of
emissions) is comparable to Section 303 of the Clean Air Act and
provides that ``if the Secretary of the Department of Environment and
Natural Resources finds that any person is causing or contributing to
air pollution and that such pollution creates an emergency by causing
imminent danger to human health or safety and requires immediate action
to protect human health or safety, the Secretary shall order such
person or persons to reduce or discontinue immediately the emissions of
air contaminants. '' Accordingly, we have reviewed South Dakota's
statutory provisions for evidence that the State has authorities
comparable to those in section 303. Our review included the provision
discussed above, as well as provisions in the current SDCL.
    South Dakota air pollution emergency episode rule ARSD 74:36:03:01
``Air pollution emergency episode'' and ARSD 74:36:03:02 ``Episode
emergency contingency plan'' were most recently approved on June 27,
2014 (79 FR 36425). We find that South Dakota's air pollution emergency
rules establish stages of episode criteria; provide for public
announcement whenever any episode stage has been determined to exist;
and specify emission control actions to be taken at each episode stage,
consistent with the EPA emergency episode SIP requirements set forth at
40 CFR 51.151 and appendix L to part 51.
    (ii) The EPA's analysis:
    While no single South Dakota statute mirrors the authorities of CAA
section 303, we propose to find that the combination of SDCL and ARSD
provisions discussed above provide for authority comparable to section
303 to immediately bring suit to restrain, issue emergency executive
orders against, and use special rule adoption and suspension procedures
for applicable emergencies to take prompt administrative action
against, any person causing or contributing to air pollution that
presents an imminent and substantial endangerment to public health or
welfare, or the environment. Consistent with EPA's 2013 Infrastructure
SIP Guidance, the narratives provided in South Dakota's SIP submittals
about the State's authorities applying to emergency episodes (as
discussed above), plus additional South Dakota statutes that we have
considered, we propose that they are sufficient to meet the authority
requirement of CAA section 110(a)(2)(G). The SIP therefore meets the
requirements of 110(a)(2)(G). Based on the above analysis, we propose
approval of South Dakota's SIP as meeting the requirements of CAA
section 110(a)(2)(G) for the 2015 ozone NAAQS.

H. CAA Section 110(a)(2)(H): Future SIP Revisions

    Section 110(a)(2)(H) requires that SIPs provide for revision of
such plan: (i) From time to time as may be necessary to take account of
revisions of such national primary or secondary ambient air quality
standard or the availability of improved or more expeditious methods of
attaining such standard; and (ii), except as provided in paragraph
(3)(C), whenever the Administrator finds on the basis of information
available to the Administrator that the SIP is substantially inadequate
to attain the NAAQS which it implements or to otherwise comply with any
additional requirements under this [Act].
    (i) The State's submission:
    The South Dakota submission refers to SDCL Section 34A-1-6 provides
DENR with the authority to revise the State's SIP to meet all federal
requirements and to revise the SIP whenever necessary or appropriate,
such as changes to the NAAQS or in response to the EPA finding the
State's SIP to be inadequate.
    (ii) The EPA's analysis:
    SDCL Section 34A-1-6 directs DENR to promulgate a comprehensive SIP
that meets all federal requirements and to revise the SIP whenever
necessary or appropriate. Therefore, we propose to approve South
Dakota's SIP as meeting the requirements of CAA section 110(a)(2)(H).

I. CAA Section 110(a)(2)(I): Nonattainment Area Plan Revision Under
Part D

    There are two elements identified in CAA section 110(a)(2) not
governed by the three-year submission deadline of CAA section 110(a)(1)
because SIPs incorporating necessary local nonattainment area controls
are due on nonattainment area plan schedules pursuant to section 172
and the various pollutant-specific subparts 2 through 5 of part D.
These are submissions required by: (i) CAA section 110(a)(2)(C) to the
extent that subsection refers to a permit program as required in part
D, Title I of the CAA; and (ii) section 110(a)(2)(I) which pertain to
the nonattainment planning requirements of part D, Title I of the CAA.
As a result, this action does not address CAA section 110(a)(2)(C) with
respect to NNSR or CAA section 110(a)(2)(I).

J. CAA Section 110(a)(2)(J): Consultation With Government Officials,
Public Notification, PSD and Visibility Protection

    CAA section 110(a)(2)(J) requires states to provide a process for
consultation with local governments and FLMs pursuant to CAA section
121. CAA section 110(a)(2)(J) further requires states to notify the
public if NAAQS are exceeded in an area and to enhance public awareness
of measures that can be taken to prevent exceedances pursuant to CAA
section 127. Lastly, CAA section 110(a)(2)(J) requires states to meet
applicable requirements of part C, Title I of the CAA related to

prevention of significant deterioration and visibility protection.
    (i) The State's submission:
    The South Dakota submission references the following laws and
regulations relating to consultation with identified officials on
certain air agency actions; public notification; PSD; and visibility
protection:
     SDCL section 34A-1-1;
     SDCL section 34A-1-9;
     SDCL section 34A-1-10; and
     SDCL section 1-40-31.
    (ii) The EPA's analysis:
    The State has demonstrated it has the authority and rules in place
through its certifications (contained within this docket) to provide a
process of consultation with general purpose local governments,
designated organizations of elected officials of local governments and
any Federal Land Manager having authority over federal land to which
the SIP applies, consistent with the requirements of CAA section 121.
    Furthermore, EPA previously addressed the requirements of CAA
section 127 for the South Dakota SIP and determined public notification
requirements are appropriate (45 FR 58528, Sept. 4, 1980). As discussed
above, the State has a SIP-approved PSD program that incorporates by
reference the federal program at 40 CFR 52.21. EPA has further
evaluated South Dakota's SIP approved PSD program in this proposed
action under element (C) and determined the State has satisfied the
requirements of element 110(a)(2)(C), as noted above. Therefore, the
State has also satisfied the requirements of element 110(a)(2)(J).
    Finally, with regard to the applicable requirements for visibility
protection, EPA recognizes states are subject to visibility and
regional haze program requirements under part C of the Act. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus, we
find that there are no applicable visibility requirements under section
110(a)(2)(J) when a new NAAQS becomes effective.
    Addressing the requirement in CAA section 110(a)(2)(J) that the SIP
meet the applicable requirements of part C, Title I of the CAA, we have
evaluated this requirement in the context of CAA section 110(a)(2)(C).
The EPA most recently approved revisions to South Dakota's PSD program
on May 3, 2019 (84 FR 18991), updating the program for current Federal
requirements. Therefore, we are proposing to approve the South Dakota
SIP as meeting the requirements of CAA 110(a)(2)(J) with respect to PSD
for the 2015 ozone NAAQS.
    The State has demonstrated it has the authority and rules in place
through its certification (contained within this docket) to provide a
process of consultation with general purpose local governments,
designated organizations of elected officials of local governments and
any Federal Land Manager having authority over federal land to which
the SIP applies, consistent with the requirements of CAA section 121.
Furthermore, EPA previously addressed the requirements of CAA section
127 for the South Dakota SIP and determined public notification
requirements are appropriate (45 FR 58528, Sept. 4, 1980).
    Based on the above analysis, we are proposing to approve the South
Dakota SIP as meeting the requirements of CAA section 110(a)(2)(J) for
the 2015 ozone NAAQS.

K. CAA Section 110(a)(2)(K): Air Quality and Modeling/Data

    CAA section 110(a)(2)(K) requires that SIPs provide for (i) the
performance of air quality modeling as the Administrator may prescribe
for the purpose of predicting the effect on ambient air quality of any
emissions of any air pollutant for which the Administrator has
established a NAAQS, and (ii) the submission, upon request, of data
related to such air quality modeling to the Administrator.
    The EPA's requirements for air quality modeling for criteria
pollutants are found in 40 CFR part 51, appendix W, Guideline on Air
Quality Models. On January 17, 2017 (82 FR 5182), the EPA revised
appendix W, effective February 16, 2017. The Federal Register document
stated: ``For all regulatory applications covered under the Guideline,
except for transportation conformity, the changes to the appendix A
preferred models and revisions to the requirements and recommendations
of the Guideline must be integrated into the regulatory processes of
respective reviewing authorities and followed by applicants by no later
than January 17, 2018.''
    (i) The State's submission:
    South Dakota's PSD program incorporates by reference the federal
program at 40 CFR 52.21, including the provision at 40 CFR 52.21(l)(1)
requiring that estimates of ambient air concentrations be based on
applicable air quality models specified in appendix W of 40 CFR part
51, and the provision at 40 CFR 52.21(l)(2) requiring that modification
or substitution of a model specified in appendix W must be approved by
the Administrator.
    In its submission, the State references SDLC section 34A-1-1, 34A-
1-10, and 1-40-31 and that they provide the DENR with the authority to
advise, consult, and cooperate with EPA and provide EPA with public
records, such as air quality modeling. As a result, the SIP provides
for such air quality modeling as the Administrator has prescribed.
    (ii) The EPA's analysis:
    Based on the above information, we are proposing to approve the
South Dakota SIP as meeting the requirements of CAA section
110(a)(2)(K) for the 2015 ozone NAAQS.

L. CAA Section 110(a)(2)(L): Permitting Fees

    CAA section 110(a)(2)(L) directs SIPs to require each major
stationary source to pay permitting fees to cover the cost of
reviewing, approving, implementing and enforcing a permit.
    (i) State's submission:
    The South Dakota submission refers to ARSD 74:37:01--Air Emission
Fees; which requires owners or operators of major stationary sources to
pay permitting fees to cover the cost of reviewing, approving,
implementing and enforcing Title V air quality operating permits.
    (ii) The EPA's analysis:
    The EPA-approved ARSD 74:37:01 adequately addresses requirements in
CAA section 110(a)(2)(L) regarding construction (i.e. NSR) permits.
With respect to title V permits, on February 28, 1996 the EPA fully
approved South Dakota's part 70 title V operating permit program (61 FR
2720). The fully approved South Dakota title V program and South
Dakota's ARSD 74:37:01 demonstrate that fees will be adequate to fund
the title V and NSR programs, and that the State will collect fees in
accordance with 40 CFR 70.9(b)(2)(i). Therefore, we are proposing that
South Dakota has satisfied the requirements of CAA section 110(a)(2)(L)
for the 2015 ozone NAAQS.

M. CAA Section 110(a)(2)(M): Consultation/Participation by Affected
Local Entities

    CAA section 110(a)(2)(M) requires states to provide for
consultation and participation in SIP development by local political
subdivisions affected by the SIP.
    (i) State's submission:
    South Dakota refers to the following rules and regulations, which
require and provide authority for public hearings, notice of hearings,
public comment periods, and the consultation and coordination between
state and local governments:
     SDCL section 34A-1-1; and
     SDCL section 34A-1-10.

    (ii) The EPA's analysis:
    The rules and regulations cited by South Dakota provide for the
consultation and participation by local political subdivisions affected
by the SIP; therefore, we are proposing to approve the South Dakota SIP
as meeting the requirements of CAA section 110(a)(2)(M) for the 2015
ozone NAAQS.

N. Revisions to South Dakota Air Pollution Control Rules

    On January 3, 2020 the EPA received revisions for the ARSD for the
State of South Dakota. In this document, the EPA is proposing to
approve the ARSD rule revisions that update the date of incorporation
by reference of federal rules to July 1, 2018. The submittal was signed
by the Governor and received a 30-day public comment period starting on
November 26, 2019 (no requests were made for a public hearing). The EPA
is proposing to approve all of the revisions to the ARSD for the State
of South Dakota submitted by the State on January 3, 2020 in this
action.

IV. Proposed Action

    In this action, the EPA is proposing to approve South Dakota's
January 15, 2020 submission for all CAA section 110(a)(2)
infrastructure elements for the 2015 ozone NAAQS. Additionally, the EPA
is proposing to approve the incorporation by reference revisions to the
ARSD submitted by the State of South Dakota on January 3, 2020.
    In the table below, the key is as follows:
    A--Approve.
    D--Disapprove.

  Table 1--Infrastructure Elements That the EPA Is Proposing To Act on
------------------------------------------------------------------------
 2015 Ozone NAAQS Infrastructure SIP Elements and Revisions
     to the Administrative Rules of South Dakota (ARSD)
------------------------------------------------------------------------
(A): Emission Limits and Other Control Measures.............          A
(B): Ambient Air Quality Monitoring/Data System.............          A
(C): Program for Enforcement of Control Measures............          A
(D)(i)(I): Prong 1 Interstate Transport--significant                  A
 contribution...............................................
(D)(i)(I): Prong 2 Interstate Transport--interference with            A
 maintenance................................................
(D)(i)(II): Prong 3 Interstate Transport--prevention of               A
 significant deterioration..................................
(D)(i)(II): Prong 4 Interstate Transport--visibility........          A
(D)(ii): Interstate and International Pollution Abatement...          A
(E): Adequate Resources.....................................          A
(F): Stationary Source Monitoring System....................          A
(G): Emergency Episodes.....................................          A
(H): Future SIP revisions...................................          A
(J): Consultation with Government Officials, Public                   A
 Notification, PSD and Visibility Protection................
(K): Air Quality and Modeling/Data..........................          A
(L): Permitting Fees........................................          A
(M): Consultation/Participation by Affected Local Entities..          A
South Dakota ARSD; revisions to South Dakota's Air Quality            A
 Program; chapters pertaining to definitions, ambient air
 quality, air quality episodes, prevention of significant
 deterioration, new source review, performance testing,
 control of visible emissions, continuous emission
 monitoring systems, state facilities in Rapid City area,
 construction permits and regional haze program
 administrative rules.......................................
------------------------------------------------------------------------

V. Incorporation by Reference

    In this document, the EPA is proposing to include regulatory text
in an EPA final rule that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, the EPA is proposing to
incorporate by reference South Dakota's January 3, 2020 submission of
the ARSD of the State of South Dakota. The EPA has made, and will
continue to make, these materials generally available through
www.regulations.gov and at the EPA Region 8 Office (please contact the
persons identified in the For Further Information Contact section of
this preamble for more information).

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
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 action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
     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 CAA; and
     Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation
land or in any other area where the EPA or an

Indian tribe has demonstrated that a tribe has jurisdiction. In those
areas of Indian country, the proposed rule does not have tribal
implications and will not impose substantial direct costs on tribal
governments or preempt tribal law as specified by Executive Order 13175
(65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

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

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

    Dated: April 12, 2020.
Gregory Sopkin,
Regional Administrator, EPA Region 8.
[FR Doc. 2020-10418 Filed 5-18-20; 8:45 am]
 BILLING CODE 6560-50-P