[Federal Register Volume 76, Number 141 (Friday, July 22, 2011)]
[Rules and Regulations]
[Pages 43912-43918]
[FR Doc No: 2011-18425]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2010-0301; FRL-9441-6]

Approval and Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 1997 8-hour Ozone National Ambient
Air Quality Standards; South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving the State Implementation Plan (SIP)
submission from the State of South Dakota to demonstrate that the SIP
meets the requirements of the Clean Air Act (CAA) for the National
Ambient Air Quality Standards (NAAQS) promulgated for ozone on July 18,
1997. The CAA requires that each state, after a new or revised NAAQS is
promulgated, review their SIPs to ensure that they meet the
requirements of the ``infrastructure elements''. The State of South
Dakota

submitted a certification, dated February 1, 2008, that its SIP met
these requirements for the 1997 ozone NAAQS; the certification was
determined to be complete on March 27, 2008. In addition, EPA is
partially approving a June 14, 2010 SIP submittal from the State that
revises the State's Prevention of Significant Deterioration (PSD)
program.

DATES: Effective Date: This final rule is effective August 22, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2010-0301. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
the Air Program, Environmental Protection Agency (EPA), Region 8, 1595
Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at
all possible, you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to view the hard copy of the docket. You
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4
p.m., excluding Federal holidays.

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

Definitions

    For the purpose of this document, we are giving meaning to certain
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.

Table of Contents

I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By
statute, SIPs meeting the requirements of sections 110(a)(1) and (2)
are to be submitted by states within three years after promulgation of
a new or revised standard. Section 110(a)(2) provides basic
requirements for SIPs, including emissions inventories, monitoring, and
modeling, to assure attainment and maintenance of the standards. These
requirements are set out in several ``infrastructure elements,'' listed
in section 110(a)(2).
    Section 110(a) imposes the obligation upon states to make a SIP
submission to EPA for a new or revised NAAQS, and the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time the
state develops and submits the SIP for a new or revised NAAQS affects
the content of the submission. The contents of such SIP submissions may
also vary depending upon what provisions the state's existing SIP
already contains. In the case of the 1997 ozone NAAQS, states typically
have met the basic program elements required in section 110(a)(2)
through earlier SIP submissions in connection with previous NAAQS. In a
guidance issued on October 2, 2007, EPA noted that, to the extent an
existing SIP already meets the section 110(a)(2) requirements, states
need only to certify that fact via a letter to EPA.\1\
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    \1\ Memorandum from William T. Harnett, Director, Air Quality
Policy Division, ``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'' (Oct. 2, 2007).
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    On March 27, 2008, EPA published a final rule entitled,
``Completeness Findings for Section 110(a) State Implementation Plans
for the 8-hour Ozone NAAQS'' (73 FR 16205). In the rule, EPA made a
finding for each state that it had submitted or had failed to submit a
complete SIP that provided the basic program elements of section
110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In
particular, EPA found that South Dakota had submitted a complete SIP
(``Infrastructure SIP'') to meet these requirements.
    On May 12, 2011, EPA published a notice of proposed rulemaking
(NPR) for the State of South Dakota (76 FR 27622) to act on the State's
Infrastructure SIP for the 1997 ozone NAAQS. Specifically, in the NPR
EPA proposed approval of South Dakota's SIP as meeting the requirements
of all section 110(a)(2) elements with respect to the 1997 ozone NAAQS,
aside from elements 110(a)(2)(D)(i), 110(a)(2)(I), and the visibility
protection requirement of element 110(a)(2)(J), on which EPA did not
propose action.\2\
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    \2\ See the NPR (76 FR 27622) for further explanation regarding
the omission of elements 110(a)(2)(D)(i) and 110(a)(2)(I) from the
proposal.
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    EPA proposed to approve element 110(a)(2)(C) for the 1997 ozone
NAAQS in the event that the State clarified (or modified) its February
1, 2008 certification to ensure consistency with two rules related to
regulation of greenhouse gas (GHG) emissions: ``Prevention of
Significant Deterioration and Title V Greenhouse Gas Tailoring Rule''
(``Tailoring Rule''), 75 FR 31514 (June 3, 2010), and ``Limitation of
Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans'' (``PSD SIP Narrowing Rule''), 75 FR 82536 (Dec. 30, 2010). In
the PSD SIP Narrowing Rule, EPA withdrew its previous approval of South
Dakota's prevention of significant deterioration (PSD) program to the
extent that it applied PSD permitting to greenhouse gas (GHG) emissions
increases from GHG-emitting sources below thresholds set in the
Tailoring Rule. EPA withdrew its approval on the basis that the State
lacked sufficient resources to issue PSD permits to such sources at the
statutory thresholds in effect in the previously-approved PSD program.
After the PSD SIP Narrowing Rule, the portion of South Dakota's PSD SIP
from which EPA withdrew its approval had the status of having been
submitted to EPA but not yet acted upon. In its February 1, 2008
certification, South Dakota relied on its PSD program as approved at
that date--which was before December 30, 2010, the effective date of
the PSD SIP Narrowing Rule--to satisfy the requirements of
infrastructure element 110(a)(2)(C). Given EPA's basis for the PSD SIP
Narrowing Rule, EPA proposed approval of the South Dakota
Infrastructure SIP for infrastructure element (C) if either the State
clarified (or modified) its certification to make clear that the State
relies only on the portion of the PSD program that remains approved
after the PSD SIP Narrowing Rule issued on December 30, 2010, and for
which the State has sufficient resources to implement, or the State
acted to withdraw from EPA

consideration the remaining portion of its PSD program submission that
would have applied PSD permitting to GHG sources below the Tailoring
Rule thresholds. On May 9, 2011, EPA received a letter from South
Dakota (dated May 5, 2011) clarifying that the State relies only on the
portion of the PSD program that remains approved after the PSD SIP
Narrowing Rule issued on December 30, 2010.\3\
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    \3\ South Dakota's May 5, 2011 clarification letter is available
in the docket for this action.
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    In the May 12, 2011 NPR, EPA also proposed action on revisions to
Administrative Rules of South Dakota (ARSD) Chapter 74:36:09 (PSD) from
South Dakota's June 14, 2010 SIP submission. The revisions to the
State's PSD program updated the date of incorporation by reference of
the Federal rules at 40 CFR 52.21 to July 1, 2009. EPA proposed to
approve this revision with the following exception. Consistent with the
Tailoring Rule and the SIP PSD Narrowing Rule, EPA proposed to
disapprove the revision of ARSD 74:36:09 in the June 14, 2010
submission to the extent that the revision applies PSD permitting to
GHG emissions increases from GHG-emitting sources below Tailoring Rule
thresholds.

Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and PM2.5 NAAQS
for various states across the country. Commenters on EPA's recent
proposals for some states raised concerns about EPA statements that it
was not addressing certain substantive issues in the context of acting
on the infrastructure SIP submissions.\4\ The commenters specifically
raised concerns involving provisions in existing SIPs and with EPA's
statements that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction at sources, that may be contrary to the CAA
and EPA's policies addressing such excess emissions (``SSM''); and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated that it would address the issues
separately: (i) Existing provisions for minor source new source review
programs that may be inconsistent with the requirements of the CAA and
EPA's regulations that pertain to such programs (``minor source new
source review (NSR)''); and (ii) existing provisions for Prevention of
Significant Deterioration programs that may be inconsistent with
current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR
80,186 (December 31, 2002), as amended by 72 FR 32,526 (June 13, 2007)
(``NSR Reform''). In light of the comments, EPA now believes that its
statements in various proposed actions on infrastructure SIPs with
respect to these four individual issues should be explained in greater
depth with respect to these issues.
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    \4\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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    EPA intended the statements in the proposals concerning these four
issues merely to be informational, and to provide general notice of the
potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing state provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues.
    Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issue in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements, however, we want to explain more fully the Agency's
reasons for concluding that these four potential substantive issues in
existing SIPs may be addressed separately.
    The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``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
that these SIPS are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, NSR permitting program
submissions required to address the

requirements of part D, and a host of other specific types of SIP
submissions that address other specific matters.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\5\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\6\
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    \5\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
    \6\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each SIP contains adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in other states. This
provision contains numerous terms that require substantial
rulemaking by EPA in order to determine such basic points as what
constitutes significant contribution. See, e.g., ``Rule To Reduce
Interstate Transport of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program; Revisions to the
NOx SIP Call; Final Rule,'' 70 FR 25,162 (May 12,
2005)(defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) states that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\7\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\8\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the SIP. Finally, EPA
notes that not every element of section 110(a)(2) would be relevant, or
as relevant, or relevant in the same way, for each new or revised NAAQS
and the attendant infrastructure SIP submission for that NAAQS. For
example, the monitoring requirements that might be necessary for
purposes of section 110(a)(2)(B) for one NAAQS could be very different
than what might be necessary for a different pollutant. Thus, the
content of an infrastructure SIP submission to meet this element from a
state might be very different for an entirely new NAAQS, versus a minor
revision to an existing NAAQS.\9\
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    \7\ See, e.g., Id., 70 FR 25,162, at 63-65 (May 12,
2005)(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
    \8\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \9\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
    Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\10\ Within this guidance document, EPA
described the duty of states to make these submissions to meet what the
Agency characterized as the ``infrastructure'' elements for SIPs, which
it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \11\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the

required elements.'' \12\ EPA also stated its belief that with one
exception, these requirements were ``relatively self explanatory, and
past experience with SIPs for other NAAQS should enable States to meet
these requirements with assistance from EPA Regions.'' \13\ For the one
exception to that general assumption, however, i.e., how states should
proceed with respect to the requirements of section 110(a)(2)(G) for
the 1997 PM2.5 NAAQS, EPA gave much more specific recommendations. But
for other infrastructure SIP submittals, and for certain elements of
the submittals for the 1997 PM2.5 NAAQS, EPA assumed that each state
would work with its corresponding EPA regional office to refine the
scope of a state's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the SIP for the NAAQS in question.
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    \10\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National
Ambient Air Quality Standards,'' from William T. Harnett, Director,
Air Quality Policy Division, to Air Division Directors, Regions I-X,
dated October 2, 2007 (the ``2007 Guidance''). EPA issued comparable
guidance for 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),'' from William T. Harnett, Director, Air Quality Policy
Division, to Regional Air Division Directors, Regions I-X, dated
September 25, 2009 (the ``2009 Guidance'').
    \11\ Id., at page 2.
    \12\ Id., at attachment A, page 1.
    \13\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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    Significantly, the 2007 Guidance did not explicitly refer to the
SSM, director's discretion, minor source NSR, or NSR Reform issues as
among specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however,
EPA did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in the context of the infrastructure SIPs for these
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that
the states should make submissions in which they established that they
have the basic SIP structure necessary to implement, maintain, and
enforce the NAAQS. EPA believes that states can establish that they
have the basic SIP structure, notwithstanding that there may be
potential deficiencies within the existing SIP. Thus, EPA's proposals
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions.
    EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of the absence
of underlying EPA regulations for emergency episodes for this NAAQS and
an anticipated absence of relevant provisions in existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a SIP is substantially
inadequate to attain or maintain the NAAQS, to mitigate interstate
transport, or otherwise to comply with the CAA.\14\ Section 110(k)(6)
authorizes EPA to correct errors in past actions, such as past
approvals of SIP submissions.\15\ Significantly, EPA's determination
that an action on the infrastructure SIP is not the appropriate time
and place to address all potential existing SIP problems does not
preclude the Agency's subsequent reliance on provisions in section
110(a)(2) as part of the basis for action at a later time. For example,
although it may not be appropriate to require a state to eliminate all
existing inappropriate director's discretion provisions in the course
of acting on the infrastructure SIP, EPA believes that section
110(a)(2)(A) may be among the statutory bases that the Agency cites in
the course of addressing the issue in a subsequent action.\16\
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    \14\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).
    \15\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82,536 (Dec. 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR
34,641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67,062 (November 16,
2004) (corrections to California SIP); and 74 FR 57,051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
    \16\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July
21,2010)(proposed disapproval of director's discretion provisions);
76 FR 4,540 (Jan. 26, 2011)(final disapproval of such provisions).
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II. Response to Comments

    EPA did not receive any comments on the May 12, 2011, NPR (76 FR
27622).

III. Final Action

    In this action, EPA is approving the following section 110(a)(2)
infrastructure elements for South Dakota for the 1997 ozone NAAQS: (A),
(B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), (M). EPA is also
approving the portion of South Dakota's June 14, 2010 SIP submission
that revises South Dakota's PSD program to incorporate by reference the
Federal program at 40 CFR 52.21 as of July 1, 2009, except to the
extent that revision applies PSD permitting to GHG emissions increases
from GHG-emitting sources below the thresholds set out in the Tailoring
Rule, 75 FR 31514.

IV. 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 USC 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions,

EPA's role is to approve state choices, provided that they meet the
criteria of the CAA. Accordingly, this action merely approves some
state law as meeting Federal requirements and disapproves other state
law because it does not meet Federal requirements; this action does not
impose additional requirements beyond those imposed by state law. For
that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 USC 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 USC 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 EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
Tribal governments or preempt Tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 20, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: June 30, 2011.
James B. Martin,
Acting Regional Administrator. Region 8.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

0
2. Section 52.2170 is amended by:
0
a. In paragraph (c)(1) revise the entries under 74:36:09, Prevention of
Significant Deterioration, for ``74:36:09:02'' and ``74:36:09:03''.
0
b. In paragraph (e), add entry for ``XI'', Section 110(a)(2)
Infrastructure Requirements for the 1997 8-Hour Ozone NAAQS. The
revisions and addition read as follows:

Subpart QQ--South Dakota

Sec.  52.2170  Identification of Plan.

* * * * *
    (c) * * *
    (1) * * *

----------------------------------------------------------------------------------------------------------------
                                                       State  effective    EPA approval date
         State citation              Title/subject           date            and citation        Explanations
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                74:36:09 Prevention of Significant Deterioration
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
74:36:09:02.....................  Prevention of       6/28/10...........  6/30/11, 7/22/11    ..................
                                   significant                             [insert page
                                   deterioration.                          number where the
                                                                           document begins].
74:36:09:03.....................  Public              6/28/10...........  6/30/11, 7/22/11    ..................
                                   participation.                          [insert page
                                                                           number where the
                                                                           document begins].
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                     Applicable
    Name of nonregulatory SIP       geographic or    State submittal     EPA approval data
            provision              non-attainment   date/adopted date     and citation\5\        Explanations
                                        area
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
XI. Section 110(a)(2)                   Statewide  2/1/08.............  6/30/11, 7/22/11     ...................
 Infrastructure Requirements for                                         [insert page
 the 1997 8-hour Ozone NAAQS.                                            number where the
                                                                         document begins].
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2011-18425 Filed 7-21-11; 8:45 am]
BILLING CODE 6560-50-P