[Federal Register Volume 82, Number 107 (Tuesday, June 6, 2017)]
[Proposed Rules]
[Pages 26007-26016]
[FR Doc No: 2017-11573]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2016-0709; FRL-9963-27-Region 8]

Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 2010 SO2 and 2012 PM2.5 National
Ambient Air Quality Standards; South Dakota

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of State Implementation Plan (SIP) revisions from the
State of South Dakota to demonstrate the State meets infrastructure
requirements of the Clean Air Act (Act, CAA) for the National Ambient
Air Quality Standards (NAAQS) promulgated for sulfur dioxide
(SO2) on June 2, 2010, and fine particulate matter
(PM2.5) on December 14, 2012. Section 110(a) of the CAA
requires that each state submit a SIP for the implementation,
maintenance, and enforcement of each NAAQS promulgated by the EPA.

DATES: Written comments must be received on or before July 6, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2016-0709 at http://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.

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

I. General Information

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

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

II. Background

    On June 2, 2010, the EPA promulgated a revised primary
SO2 standard of 75 ppb, based on a three-year average of the
annual 99th percentile of one-hour daily maximum concentrations (75 FR
35520, June 22, 2010). On December 14, 2012, the EPA promulgated a
revised annual PM2.5 standard by lowering the level to 12.0
[mu]g/m\3\ and retaining the 24-hour PM2.5 standard at a
level of 35 [mu]g/m\3\ (78 FR 3086, Jan. 15, 2013).
    Under sections 110(a)(1) and (2) of the CAA, states are required to
submit infrastructure SIPs to ensure their SIPs provide for
implementation, maintenance, and enforcement of the NAAQS. These
submissions must contain any revisions needed for meeting the
applicable SIP requirements of section 110(a)(2), or certifications
that their existing SIPs for SO2 and PM2.5
already meet those requirements. The EPA highlighted this statutory
requirement in an October 2, 2007, guidance document entitled
``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2)
for the 1997 8-hour Ozone and PM2.5 National Ambient Air
Quality Standards'' (2007 Memo). On September 25, 2009, the EPA issued
an additional guidance document pertaining to the 2006 PM2.5
NAAQS entitled ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5)
National Ambient Air Quality Standards (NAAQS)'' (2009 Memo), followed
by the October 14, 2011, ``Guidance on Infrastructure SIP Elements
Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb)
National Ambient Air Quality Standards (NAAQS)'' (2011 Memo). Most
recently, the EPA issued ``Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean Air Act Sections
110(a)(1) and (2)'' on September 13, 2013 (2013 Memo).

III. What is the scope of this rulemaking?

    The EPA is acting upon the SIP submissions from South Dakota that
address the infrastructure requirements of CAA sections 110(a)(1) and
110(a)(2) for the 2010 SO2 and 2012 PM2.5 NAAQS.
The requirement for states to make a SIP submission of this type arises
out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states
must make SIP submissions ``within three years (or such shorter period
as the Administrator may prescribe) after the promulgation of a
national primary ambient air quality standard (or any revision
thereof),'' and these SIP submissions are to provide for the
``implementation, maintenance, and enforcement'' of such NAAQS. The
statute directly imposes on states the duty to make these SIP
submissions, and the requirement to make the submissions is not
conditioned upon the EPA taking any action other than promulgating a
new or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
    The EPA has historically referred to these SIP submissions made for
the purpose of satisfying the requirements of CAA sections 110(a)(1)
and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, the EPA uses the
term to distinguish this particular type of SIP submission from
submissions that are intended to satisfy other SIP requirements under
the CAA, such as ``nonattainment SIP'' or

``attainment plan SIP'' submissions to address the nonattainment
planning requirements of part D of title I of the CAA; ``regional haze
SIP'' submissions required by the EPA rule to address the visibility
protection requirements of CAA section 169A; and nonattainment new
source review (NSR) permit program submissions to address the permit
requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\1\ The EPA therefore
believes that while the timing requirement in section 110(a)(1) is
unambiguous, some of the other statutory provisions are ambiguous. In
particular, the EPA believes that the list of required elements for
infrastructure SIP submissions provided in section 110(a)(2) contains
ambiguities concerning what is required for inclusion in an
infrastructure SIP submission.
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    \1\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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    Examples of some of these ambiguities and the context in which the
EPA interprets the ambiguous portions of section 110(a)(1) and
110(a)(2) are discussed at length in our notice of proposed rulemaking:
Promulgation of State Implementation Plan Revisions; Infrastructure
Requirements for the 1997 and 2006 PM2.5, 2008 Lead, 2008
Ozone, and 2010 NO2 National Ambient Air Quality Standards;
South Dakota (79 FR 71040, Dec. 1, 2014) under ``III. What is the Scope
of this Rulemaking?''
    With respect to certain other issues, the EPA does not believe that
an action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction (SSM) that may be contrary to the CAA and the
EPA's policies addressing such excess emissions; (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by the EPA; and (iii)
existing provisions for Prevention of Significant Deterioration (PSD)
programs that may be inconsistent with current requirements of the
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186, Dec. 31, 2002, as
amended by 72 FR 32526, June 13, 2007 (``NSR Reform'').

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

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

V. How did south dakota address the infrastructure elements of sections
110(a)(1) and (2)?

    The South Dakota Department of Environment and Natural Resources
(DENR) submitted certifications of South Dakota's infrastructure SIP
for the 2010 SO2 NAAQS on December 20, 2013 and the 2012
PM2.5 NAAQS on January 25, 2016. South Dakota's
infrastructure certifications demonstrate how the State, where
applicable, has plans in place that meet the requirements of section
110 for the 2010 SO2 and 2012 PM2.5 NAAQS.
Infrastructure SIPs were taken out for public notice and South Dakota
provided an opportunity for public hearing, as indicated in the cover
letter of each certification (available within this docket). These
plans reference the current Administrative Rules of South Dakota (ARSD)
and South Dakota Codified Laws (SDCL). These submittals are available
within the electronic docket for today's proposed action at
www.regulations.gov. The ARSD and SDCL referenced in the submittals are
publicly available at http://legis.sd.gov/rules/RulesList.aspx and
http://legis.sd.gov/Statutes/Codified_Laws/default.aspx. South Dakota's
SIP, air pollution control regulations and statutes that have been
previously approved by the EPA and incorporated into the South Dakota
SIP can be found at 40 CFR 52.2170.

VI. Analysis of the State Submittals

    1. Emission limits and other control measures: Section 110(a)(2)(A)
requires SIPs to include enforceable emission limitations and other
control measures, means, or techniques (including economic incentives
such as fees, marketable permits, and auctions of emissions rights), as
well as schedules

and timetables for compliance, as may be necessary or appropriate, to
meet the applicable requirements of this Act.
    Multiple SIP-approved state air quality regulations within the ARSD
and cited in South Dakota's certifications provide enforceable emission
limitations and other control measures, means of techniques, schedules
for compliance, and other related matters necessary to meet the
requirements of the CAA section 110(a)(2)(A) for the 2010
SO2 and 2012 PM2.5 NAAQS, subject to the
following clarifications.
    First, the EPA does not consider SIP requirements triggered by the
nonattainment area mandates in part D of Title I of the CAA to be
governed by the submission deadline of section 110(a)(1). Furthermore,
South Dakota has no areas designated as nonattainment for the 2010
SO2 or 2012 PM2.5 NAAQS. South Dakota's
certifications (contained within this docket) generally listed
provisions within its SIP which regulate pollutants through various
programs, including major and minor source permit programs. This
suffices, in the case of South Dakota, to meet the requirements of
section 110(a)(2)(A) for the 2010 SO2 and 2012
PM2.5 NAAQS.
    Second, as previously discussed, the EPA is not proposing to
approve or disapprove any existing state rules with regard to
director's discretion or variance provisions. A number of states have
such provisions which are contrary to the CAA and existing EPA guidance
(52 FR 45109, Nov. 24, 1987), and the agency plans to take action in
the future to address such state regulations. In the meantime, the EPA
encourages any state having a director's discretion or variance
provision which is contrary to the CAA and EPA guidance to take steps
to correct the deficiency as soon as possible.
    Third and finally, in this action, the EPA is also not proposing to
approve or disapprove any existing state provision with regard to
excess emissions during SSM or operations at a facility. A number of
states have SSM provisions which are contrary to the CAA and existing
EPA guidance\2\ and the agency is addressing such state regulations
separately (80 FR 33840, June 12, 2015).
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    \2\ Steven Herman, Assistant Administrator for Enforcement and
Compliance Assurance, and Robert Perciasepe, Assistant Administrator
for Air and Radiation, Memorandum to the EPA Air Division Directors,
``State Implementation Plans (SIPs): Policy Regarding Emissions
During Malfunctions, Startup, and Shutdown.'' (Sept. 20, 1999).
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    Therefore, the EPA is proposing to approve South Dakota's
infrastructure SIP for the 2010 SO2, and 2012
PM2.5 NAAQS with respect to the general requirement in
section 110(a)(2)(A) to include enforceable emission limitations and
other control measures, means, or techniques to meet the applicable
requirements of this element.
    2. Ambient air quality monitoring/data system: Section 110(a)(2)(B)
requires SIPs to provide for establishment and operation of appropriate
devices, methods, systems, and procedures necessary to ``(i) monitor,
compile, and analyze data on ambient air quality, and (ii) upon
request, make such data available to the Administrator.''
    Under ARSD 74:36:02, the DENR operates a network of air monitoring
sites. The EPA approved South Dakota's 2016 network changes through an
Ambient Air Monitoring Plan response letter (contained within the
docket) mailed to the DENR on November 1, 2016. The State of South
Dakota submits data to the EPA's Air Quality System database in
accordance with the deadlines in 40 CFR 58.16. South Dakota's air
monitoring programs and data systems meet the requirements of CAA
section 110(a)(2)(B) for the 2010 SO2 and 2012
PM2.5 NAAQS.
    We find that South Dakota's SIP and practices are adequate for the
ambient air quality monitoring and data system requirements for the
2010 SO2 and 2012 PM2.5 NAAQS; and therefore,
propose to approve the infrastructure SIP for the 2010 SO2
and 2012 PM2.5 NAAQS for this element.
    3. Program for enforcement of control measures: Section
110(a)(2)(C) requires SIPs to ``include a program to provide for the
enforcement of the measures described in subparagraph (A), and
regulation of the modification and construction of any stationary
source within the areas covered by the plan as necessary to assure
NAAQS are achieved, including a permit program as required in parts C
and D.''
    To generally meet the requirements of section 110(a)(2)(C), the
State is required to have SIP-approved PSD, nonattainment NSR, and
minor NSR permitting programs adequate to implement the 2010
SO2 and 2012 PM2.5 NAAQS. As explained elsewhere
in this action, the EPA is not evaluating nonattainment related
provisions, such as the nonattainment NSR program required by part D of
the Act. The EPA is evaluating the State's PSD program as required by
part C of the Act, and the State's minor NSR program as required by
110(a)(2)(C).

Enforcement of Control Measures Requirement

    The State's submissions cite SIP approved ARSD Chapter 74:36:09
(Prevention of significant deterioration) and ARSD Chapter 74:36:20
(Construction permits for new sources and modifications) which provide
for the enforcement of emission limits and control measures. SDCL 34A-
1-39 through 34A-1-54 and 34A-1-62 gives the DENR authority to provide
enforcement of South Dakota's measure and regulations that require new
sources or modifications to existing sources to apply for and obtain an
air quality permit before constructing.

PSD Requirements

    With respect to elements (C) and (J), the EPA interprets the CAA to
require each state to make an infrastructure SIP submission for a new
or revised NAAQS that demonstrates that the air agency has a complete
PSD permitting program meeting the current requirements for all
regulated NSR pollutants. The requirements of element (D)(i)(II) prong
3 (PSD) may also be satisfied by demonstrating the air agency has a
complete PSD permitting program correctly addressing all regulated NSR
pollutants. South Dakota has shown that it currently has a PSD program
in place that covers all regulated NSR pollutants, including greenhouse
gases (GHGs).
    South Dakota implements the PSD program by, for the most part,
incorporating by reference the federal PSD program as it existed on a
specific date. The State periodically updates the PSD program by
revising the date of incorporation by reference and submitting the
change as a SIP revision. As a result, the SIP revisions generally
reflect changes to PSD requirements that the EPA has promulgated prior
to the revised date of incorporation by reference.
    On June 30, 2011, we approved a revision to the South Dakota PSD
program that addressed the PSD requirements of the Phase 2 Ozone
Implementation Rule promulgated in 2005 (76 FR 43912, July 22, 2011).
As a result, the approved South Dakota PSD program meets current
requirements for ozone.
    With respect to GHGs, on June 23, 2014, the United States Supreme
Court addressed the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S.Ct. 2427 (2014). The Supreme Court held that the EPA may
not treat GHGs as an air pollutant for purposes of determining whether
a source is a major

source required to obtain a PSD permit. The Court also held that the
EPA could continue to require that PSD permits, otherwise required
based on emissions of pollutants other than GHGs, (anyway sources)
contain limitations on GHG emissions based on the application of Best
Available Control Technology (BACT).
    In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (the
D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F.
App'x. 6, at *7-8 (D.C. Cir. April 10, 2015), issued an amended
judgment vacating the regulations that implemented Step 2 of the EPA's
PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations
that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers
sources that are required to obtain a PSD permit based on emissions of
pollutants other than GHGs. Step 2 applied to sources that emitted only
GHGs above the thresholds triggering the requirement to obtain a PSD
permit. The amended judgment preserves, without the need for additional
rulemaking by the EPA, the application of the BACT requirement to GHG
emissions from Step 1 or ``anyway sources.'' \3\ With respect to Step 2
sources, the D.C. Circuit's amended judgment vacated the regulations at
issue in the litigation, including 40 CFR 51.166(b)(48)(v) and
52.21(b)(49)(v) ``to the extent they require a stationary source to
obtain a PSD permit if greenhouse gases are the only pollutant (i) that
the source emits or has the potential to emit above the applicable
major source thresholds, or (ii) for which there is a significant
emission increase from a modification.''
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    \3\ See 77 FR 41066 (July 12, 2012) (rulemaking for definition
of ``anyway'' sources).
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    The EPA is planning to take additional steps to revise the federal
PSD rules in light of the Supreme Court and subsequent D.C. Circuit
opinion. Some states have begun to revise their existing SIP-approved
PSD programs in light of these court decisions, and some states may
prefer not to initiate this process until they have more information
about the planned revisions to the EPA's PSD regulations. The EPA is
not expecting states to have revised their PSD programs in anticipation
of the EPA's planned actions to revise its PSD program rules in
response to the court decisions.
    At present, the EPA has determined that South Dakota's SIP is
sufficient to satisfy elements (C), (D)(i)(II) prong 3, and (J) with
respect to GHGs. This is because the PSD permitting program previously
approved by the EPA into the SIP continues to require that PSD permits
issued to ``anyway sources'' contain limitations on GHG emissions based
on the application of BACT. The EPA most recently approved revisions to
South Dakota's PSD program on October 13, 2016 (81 FR 70626). The
approved South Dakota PSD permitting program does not contain
provisions regarding Step 2 sources that are no longer necessary in
light of the Supreme Court decision and D.C. Circuit's amended
judgment, as these provisions were removed in 81 FR 70626. The SIP
contains the PSD requirements for applying the BACT requirement to
greenhouse gas emissions from ``anyway sources'' that are necessary at
this time. The application of those requirements is not impeded by the
presence of other previously-approved provisions regarding the
permitting of Step 2 sources. Accordingly, the Supreme Court decision
and subsequent D.C. Circuit judgment do not prevent the EPA's approval
of South Dakota's infrastructure SIP as to the requirements of Elements
(C), (D)(i)(II) prong 3, and (J).
    Finally, we evaluate the PSD program with respect to current
requirements for PM2.5. In particular, on May 16, 2008, the
EPA promulgated the rule, ``Implementation of the New Source Review
Program for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)'' (73 FR 28321) and on October 20, 2010 the EPA
promulgated the rule, ``Prevention of Significant Deterioration (PSD)
for Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant Monitoring
Concentration (SMC)'' (75 FR 64864). The EPA regards adoption of these
PM2.5 rules as a necessary requirement when assessing a PSD
program for the purposes of element (C).
    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources
Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment
that remanded the EPA's 2007 and 2008 rules implementing the 1997
PM2.5 NAAQS. The court ordered the EPA to ``repromulgate
these rules pursuant to Subpart 4 consistent with this opinion.'' Id.
at 437. Subpart 4 of part D, Title 1 of the CAA establishes additional
provisions for PM nonattainment areas.
    The 2008 implementation rule addressed by the court decision,
``Implementation of New Source Review (NSR) Program for Particulate
Matter Less Than 2.5 Micrometers (PM2.5),'' (73 FR 28321,
May 16, 2008), promulgated NSR requirements for implementation of
PM2.5 in nonattainment areas (nonattainment NSR) and
attainment/unclassifiable areas (PSD). As the requirements of Subpart 4
only pertain to nonattainment areas, the EPA does not consider the
portions of the 2008 Implementation rule that address requirements for
PM2.5 attainment and unclassifiable areas to be affected by
the court's opinion. Moreover, the EPA does not anticipate the need to
revise any PSD requirements promulgated in the 2008 Implementation rule
in order to comply with the court's decision. Accordingly, the EPA's
proposed approval of South Dakota's infrastructure SIP as to elements C
or J with respect to the PSD requirements promulgated by the 2008
Implementation rule does not conflict with the court's opinion.
    The court's decision with respect to the nonattainment NSR
requirements promulgated by the 2008 Implementation rule also does not
affect the EPA's action on the present infrastructure action. The EPA
interprets the Act to exclude nonattainment area requirements,
including requirements associated with a nonattainment NSR program,
from infrastructure SIP submissions due three years after adoption or
revision of a NAAQS. Instead, these elements are typically referred to
as nonattainment SIP or attainment plan elements, which would be due by
the dates statutorily prescribed under subpart 2 through 5 under part
D, extending as far as 10 years following designations for some
elements.
    The second PSD requirement for PM2.5 is contained in the
EPA's October 20, 2010 rule, ``Prevention of Significant Deterioration
(PSD) for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels (SILs) and
Significant Monitoring Concentration (SMC)'' (75 FR 64864). The EPA
regards adoption of the PM2.5 increments as a necessary
requirement when assessing a PSD program for the purposes of element
(C).
    On July 22, 2011, we approved revisions to ARSD Chapter 74:36:09
that adopted by reference federal provisions of 40 CFR part 52, section
21, as they existed on July 1, 2009 (76 FR 43912, July 22, 2011). As
July 1, 2009 is after the effective date of the 2008 PM2.5
Implementation Rule, 76 FR 43912 incorporated the requirements of the
2008 PM2.5 Implementation Rule; specifically, 40 CFR
52.21(b)(23)(i) and 52.21(b)(50). On July 29, 2013, the State submitted
revisions amending the ARSD pertaining to the issuance of South Dakota
air quality permits. On June 27, 2014, we acted on two pieces from the
July 29, 2013 submittal (see 79 FR

36419) which included the removal of ARSD Chapter 74:36:04:03:01 (Minor
Source Operating Permit Variance) and revisions to ARSD Chapter
74:36:10 (New Source Review). The July 29, 2013, submittal also
included revisions to ARSD Chapter 74:36:09 (Prevention of Significant
Deterioration) which we acted on in our January 29, 2015 rulemaking (80
FR 4799). The revision adopted by reference federal provisions of 40
CFR part 52, section 21, as they existed on July 1, 2012. As July 1,
2012, is after the effective date of the 2010 PM2.5
Increment Rule, the revisions to ARSD 74:36:09 as submitted on July 29,
2013, incorporated the requirements of the 2010 PM2.5
Increment Rule; specifically, 40 CFR 52.21(b)(14)(i),(ii),(iii),
(b)(15)(i),(ii), and paragraph (c). We approved the necessary portions
of the July 29, 2013 submission to reflect the requirements of the 2010
PM2.5 Increment Rule. South Dakota's SIP-approved PSD
program therefore meets current requirements for PM2.5. As a
result, the EPA is proposing to approve South Dakota's infrastructure
SIP for the 2010 SO2 and 2012 PM2.5 NAAQS with
respect to the requirement in section 110(a)(2)(C) to include a permit
program in the SIP as required by part C of the Act.

Minor NSR

    The State has a SIP-approved minor NSR program, adopted under
section 110(a)(2)(C) of the Act. The minor NSR program was originally
approved by the EPA on September 6, 1995 (60 FR 46222). Since approval
of the minor NSR program, the State and the EPA have relied on the
program to assure that new and modified sources not captured by the
major NSR permitting programs do not interfere with attainment and
maintenance of the NAAQS. Additionally, the EPA is not proposing to
approve or disapprove any state rules with regard to the NSR Reform
requirements because they are outside the scope of this action. The
EPA's action taken on changes to South Dakota's minor source NSR
program (79 FR 36419, June 27, 2014) does not impact the approvability
of Section 110(a)(2)(C) in this action.
    The EPA is proposing to approve South Dakota's infrastructure SIP
for the 2010 SO2 and 2012 PM2.5 NAAQS with
respect to the general requirement in section 110(a)(2)(C) to include a
program in the SIP that regulates the modification and construction of
any stationary source as necessary to assure that the NAAQS are
achieved.
    4. Interstate transport: The interstate transport provisions in CAA
section 110(a)(2)(D)(i) (also called ``good neighbor'' provisions)
require each state to submit a SIP that prohibits emissions that will
have certain adverse air quality effects in other states. CAA section
110(a)(2)(D)(i) identifies four distinct elements (or prongs) related
to the impacts of air pollutants transported across state lines. The
two elements under section 110(a)(2)(D)(i)(I) require SIPs to contain
adequate provisions to prohibit any source or other type of emissions
activity within the state from emitting air pollutants that will (prong
1) contribute significantly to nonattainment in any other state with
respect to any such national primary or secondary NAAQS, and (prong 2)
interfere with maintenance by any other state with respect to the same
NAAQS. The two elements under section 110(a)(2)(D)(i)(II) require SIPs
to contain adequate provisions to prohibit emissions that will
interfere with measures required to be included in the applicable
implementation plan for any other state under part C (prong 3) to
prevent significant deterioration of air quality or (prong 4) to
protect visibility. In this action, the EPA is only addressing prongs 3
(interference with PSD) and 4 (interference with visibility protection)
of 110(a)(2)(D)(i) with regard to the 2010 SO2, and 2012
PM2.5 NAAQS. We are not addressing prong 1 or prong 2 for
either NAAQS in this action, and will address these prongs in a later
rulemaking.

A. Evaluation of Interference With Measures To Prevent Significant
Deterioration (PSD)

    South Dakota's certifications for both the 2010 SO2 and
2012 PM2.5 NAAQS both referenced the State's SIP-approved
PSD program to address prong 3 and 4 of 110(a)(2)(D)(i). Both
certifications can be found in the docket for this action. With regard
to the PSD portion of section 110(a)(2)(D)(i)(II), this requirement may
be met by a state's confirmation in an infrastructure SIP submission
that new major sources and major modifications in the state are subject
to a comprehensive EPA-approved PSD permitting program in the SIP that
applies to all regulated NSR pollutants and that satisfies the
requirements of the EPA's PSD implementation rule(s).\4\ As noted in
Section VI.3 of this proposed action, South Dakota has such a program,
and the EPA is therefore proposing to approve South Dakota's SIP for
the 2010 SO2 and 2012 PM2.5 NAAQS with respect to
the requirement in section 110(a)(2)(C) to include a permit program in
the SIP as required by part C of the Act.
---------------------------------------------------------------------------

    \4\ See 2013 Memo.
---------------------------------------------------------------------------

    As stated in the 2013 Memo, in-state sources not subject to PSD for
any one or more of the pollutants subject to regulation under the CAA
because they are in a nonattainment area for a NAAQS related to those
particular pollutants may also have the potential to interfere with PSD
in an attainment or unclassifiable area of another state. South Dakota
does not contain any nonattainment areas. The consideration of
nonattainment NSR for element 3 is therefore not relevant as all major
sources locating in the State are subject to PSD. As South Dakota's SIP
meets PSD requirements for all regulated NSR pollutants, the EPA is
proposing to approve the infrastructure SIP submission as meeting the
applicable requirements of prong 3 of section 110(a)(2)(D)(i) for the
2010 SO2 and 2012 PM2.5 NAAQS.

B. Evaluation of Interference With Measures To Protect Visibility

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

    South Dakota submitted a regional haze SIP to the EPA on January
21, 2011, and submitted an amendment to the SIP on September 19, 2011.
The EPA approved South Dakota's regional haze SIP on April 26, 2012 (77
FR 24845). The EPA is proposing to find that as a result of the prior
approval of the South Dakota regional haze SIP, the South Dakota SIP
contains adequate provisions to address the 110(a)(2)(D)(i) visibility
requirements for the 2010 SO2 and 2012 PM2.5
NAAQS. Therefore, we are proposing to approve the South Dakota SIP as
meeting the requirements of prong 4 of CAA section 110(a)(2)(D)(i) for
both of these NAAQS.

    5. Interstate and International transport provisions: CAA section
110(a)(2)(D)(ii) requires SIPs to include provisions ensuring
compliance with the applicable requirements of CAA sections 126 and 115
(relating to interstate and international pollution abatement).
Specifically, CAA section 126(a) requires new or modified major sources
to notify neighboring states of potential impacts from the source.
    Section 126(a) requires notification to affected, nearby states of
major proposed new (or modified) sources. Sections 126(b) and (c)
pertain to petitions by affected states to the Administrator of the
U.S. EPA (Administrator) regarding sources violating the ``interstate
transport'' provisions of section 110(a)(2)(D)(i). Section 115
similarly pertains to international transport of air pollution.
    As required by 40 CFR 51.166(q)(2)(iv), South Dakota's SIP-approved
PSD program requires notice to states whose lands may be affected by
the emissions of sources subject to PSD.\6\ This suffices to meet the
notice requirement of section 126(a).
---------------------------------------------------------------------------

    \6\ See ARSD 74:36:09:03.
---------------------------------------------------------------------------

    South Dakota has no pending obligations under sections 126(c) or
115(b); therefore, its SIP currently meets the requirements of those
sections. In summary, the SIP meets the requirements of CAA section
110(a)(2)(D)(ii) for the 2010 SO2 and 2012 PM2.5
NAAQS.
    6. Adequate resources: Section 110(a)(2)(E)(i) requires states to
provide ``necessary assurances that the state [. . .] will have
adequate personnel, funding, and authority under State law to carry out
[the SIP] (and is not prohibited by any provision of federal or state
law from carrying out the SIP or portion thereof).'' Section
110(a)(2)(E)(ii) also requires each state to ``comply with the
requirements respecting state boards'' under CAA section 128. Section
110(a)(2)(E)(iii) requires states to provide ``necessary assurances
that, where the state has relied on a local or regional government,
agency, or instrumentality for the implementation of any [SIP]
provision, the state has responsibility for ensuring adequate
implementation of such [SIP] provision.''

a. Sub-Elements (i) and (iii): Adequate Personnel, Funding, and Legal
Authority Under State Law To Carry Out Its SIP, and Related Issues

    SDCL 34A-1-57 through 34A-1-60 provide adequate authority for the
State of South Dakota and the DENR to carry out its SIP obligations
with respect to the 2010 SO2 and 2012 PM2.5
NAAQS. The State receives sections 103 and 105 grant funds through its
Performance Partnership Grant from the EPA along with required state
matching funds to provide funding necessary to carry out South Dakota's
SIP requirements. South Dakota's resources meet the requirements of CAA
section 110(a)(2)(E). The regulations cited by South Dakota in their
certifications and contained within this docket also provide the
necessary assurances that the State has responsibility for adequate
implementation of SIP provisions by local governments. Therefore, we
propose to approve South Dakota's SIP as meeting the requirements of
section 110(a)(2)(E)(i) and (E)(iii) for the 2010 SO2 and
2012 PM2.5 NAAQS.

b. Sub-Element (ii): State Boards

    Section 110(a)(2)(E)(ii) requires each state's SIP to contain
provisions that comply with the requirements of section 128 of the CAA.
That provision contains two explicit requirements: (i) That any board
or body which approves permits or enforcement orders under the CAA
shall have at least a majority of members who represent the public
interest and do not derive a significant portion of their income from
persons subject to such permits and enforcement orders; and (ii) that
any potential conflicts of interest by members of such board or body or
the head of an executive agency with similar powers be adequately
disclosed.\7\
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    \7\ The EPA's proposed rule notice (79 FR 71040, Dec. 1, 2014)
includes a discussion of the legislative history of how states could
meet the requirements of CAA section 128.
---------------------------------------------------------------------------

    On January 29, 2015 (80 FR 4799), the EPA approved SDCL 1-40-25.1
and revisions to ARSD 74:09, Procedures Board of Minerals and
Environment, into the South Dakota SIP as meeting the requirements of
section 128 of the Act. SDCL 1-40-25.1 addresses board composition
requirements in section 128(a)(1) and ARSD 74:09 addresses conflict of
interest requirements in section 128(a)(2). Details on how these
portions of the SDCL and ARSD meet the requirements of section 128 are
provided in our December 1, 2014 (79 FR 71040) proposal notice. In our
January 29, 2015 action, we correspondingly approved South Dakota's
infrastructure SIP for the 1997 and 2006 PM2.5, 2008 lead,
2008 ozone and 2010 NO2 NAAQS for element (E)(ii). South
Dakota's SIP continues to meet the requirements of section
110(a)(2)(E)(ii), and we propose to approve the infrastructure SIP for
the 2010 SO2 and 2012 PM2.5 NAAQS for this
element.
    7. Stationary source monitoring system: Section 110(a)(2)(F)
requires: (i) ``The installation, maintenance, and replacement of
equipment, and the implementation of other necessary steps, by owners
or operators of stationary sources to monitor emissions from such
sources; (ii) periodic reports on the nature and amounts of emissions
and emissions-related data from such sources; and (iii) correlation of
such reports by the state agency with any emission limitations or
standards established pursuant to [the Act], which reports shall be
available at reasonable times for public inspection.''
    The South Dakota provisions listed in the State's certifications
and contained within this docket provide authority to establish a
program for measurement and testing of sources, including requirements
for sampling and testing. South Dakota's SIP approved continuous
emissions monitoring system rules (ARSD 74:36:13 and contained within
this docket) require facilities to monitor and report emission data.
ARSD 74:36:04:15(10), Contents of operating permit, requires operating
permits for minor sources to include monitoring and related record
keeping and reporting requirements. Reports contain the quantity of
hazardous air pollutants, in tons, emitted for each 12-month period in
the reporting period and supporting documentation. Operating permits
for minor sources must comply with emission limits and other
requirements of the Act (ARSD 74:36:04:04 and ARSD 74:36:04:15).
    Additionally, ARSD 74:36:05:16.01(9) is applicable regarding data
from sources with title V permits. South Dakota has an approved title V
program (61 FR 2720, Jan. 29, 1996) and the definition of applicable
requirements for a Part 70 source has been approved into its SIP at
ARSD 74:36:01:05. This re-enforces a facility's record keeping and
reporting emissions data responsibilities under title V permitting,
even though the title V program is not approved into the SIP.
    Furthermore, South Dakota is required to submit emissions data to
the EPA for purposes of the National Emissions Inventory (NEI). The NEI
is the EPA's central repository for air emissions data. The EPA
published the Air Emissions Reporting Rule (AERR) on December 5, 2008,
which modified the requirements for collecting and reporting air
emissions data (73 FR 76539). The AERR shortened the time states had to
report emissions data from 17 to 12 months, giving states one calendar
year to submit emissions data.

All states are required to submit a comprehensive emissions inventory
every three years and report emissions for certain larger sources
annually through the EPA's online Emissions Inventory System. States
report emissions data for the six criteria pollutants and their
associated precursors--nitrogen oxides, sulfur dioxide, ammonia, lead,
carbon monoxide, particulate matter, and volatile organic compounds.
Many states also voluntarily report emissions of hazardous air
pollutants. South Dakota made its latest update to the NEI on January
15, 2016. The EPA compiles the emissions data, supplementing it where
necessary, and releases it to the general public through the Web site
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 2010 SO2 and 2012 PM2.5 NAAQS.
    8. Emergency powers: Section 110(a)(2)(G) of the CAA requires
infrastructure SIPs to ``provide for authority comparable to that in
[CAA section 303 \8\] and adequate contingency plans to implement such
authority.''
---------------------------------------------------------------------------

    \8\ Discussion of the requirements for meeting CAA section 303
is provided in our notice of proposed rulemaking: Promulgation of
State Implementation Plan Revisions; Infrastructure Requirements for
the 1997 and 2006 PM2.5, 2008 Lead, 2008 Ozone, and 2010
NO2 National Ambient Air Quality Standards; South Dakota (79 FR
71040, Dec. 1, 2014) under ``VI. Analysis of State Submittals, 8.
Emergency powers.''
---------------------------------------------------------------------------

    Under CAA section 303, the Administrator has authority to bring
suit to immediately restrain an air pollution source that presents an
imminent and substantial endangerment to public health or welfare, or
the environment. If such action may not practicably assure prompt
protection, then the Administrator has authority to issue temporary
administrative orders to protect the public health or welfare, or the
environment, and such orders can be extended if the EPA subsequently
files a civil suit. SDCL section 34A-1-45 and ARSD section 74:36:03:01
provide APCD with general emergency authority comparable to that in
section 303 of the Act.\9\
---------------------------------------------------------------------------

    \9\ See our proposed rulemaking at 79 FR 71053 (December 1,
2014), section VI.8 for a complete discussion on how SDCL section
34A-1-45 and ARSD section 74:36:03:01 provide authority comparable
to that in CAA section 303.
---------------------------------------------------------------------------

    States must also have adequate contingency plans adopted into their
SIP to implement the air agency's emergency episode authority (as
discussed above). This can be met can by submitting a plan that meets
the applicable requirements of 40 CFR part 51, subpart H for the
relevant NAAQS if the NAAQS is covered by those regulations.
    Rules contained in ARSD and South Dakota's SIP adopt by reference
the criteria in 40 CFR 51.151 as the air quality episode plan to
address activities causing imminent and substantial endangerment to
public health, including a contingency plan to implement the emergency
episode provisions of the SIP. As of the date of South Dakota's
submittal, the EPA has not established priority classification for a
significant harm level for PM2.5.
    Subpart H of 40 CFR part 51 requires states to classify regions and
to develop contingency plans (also known as emergency episode plans)
after ambient concentrations of certain criteria pollutants in an area
have exceeded specified levels. However, Subpart H does not currently
address requirements for the 24-hour PM2.5 standard. In
2009, the EPA issued a guidance memorandum that, among other things,
recommended an approach for states to address the contingency plan
requirements of 110(a)(2)(G) with respect to the 2006 PM2.5
NAAQS.\10\ The guidance, in Attachment A, suggested that states develop
a contingency plan if, based on the most recent three calendar years of
data, an area within the state had monitored and recorded a 24-hour
PM2.5 level greater than 140.4 mg/m3. For states that were
to develop a contingency plan, the guidance recommended states set
priority and emergency levels consistent with requirements of 40 CFR
51.150 through 51.153. The EPA notes that section 51.153 requires
periodic reevaluation of priority classifications based on the three
most recent years of air quality data.
---------------------------------------------------------------------------

    \10\ Memorandum from William T. Harnett, Director, Air Quality
Policy Division, to Regional Air Division Directors, Guidance on SIP
Elements Required under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) Standards (NAAQS), at p. 6-7
(Sep. 25, 2009).
---------------------------------------------------------------------------

    South Dakota has recorded no levels of ambient air concentrations
in the three most recent complete calendar years--2013, 2014, and
2015--that exceed the 2009 guidance memorandum.\11\ Furthermore, South
Dakota's is classified as Priority III for SO2 and is
therefore not required to submit emergency episode contingency plans
for SO2.
---------------------------------------------------------------------------

    \11\ Memorandum from William T. Harnett, Director, Air Quality
Policy Division, to Regional Air Division Directors, Guidance on SIP
Elements Required under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) Standards (NAAQS), at p. 6-7
(Sep. 25, 2009).
---------------------------------------------------------------------------

    Revisions to the South Dakota Air Quality Episodes rules ARSD
74:36:03:01 ``Air pollution emergency episode'' and ARSD 74:36:03:02
``Episode emergency contingency plan'' were most recently approved on
June 27, 2014 (79 FR 36425). We find that South Dakota's air pollution
emergency rules include PM2.5, and SO2; establish
stages of episode criteria; provide for public announcement whenever
any episode stage has been determined to exist; and specify emission
control actions to be taken at each episode stage, consistent with the
EPA emergency episode SIP requirements set forth at 40 CFR part 51
subpart H (prevention of air pollution emergency episode) for
PM2.5 and SO2. The SIP therefore meets the
requirements of 110(a)(2)(G). Based on the above analysis, we propose
approval of South Dakota's SIP as meeting the requirements of CAA
section 110(a)(2)(G) for the 2010 SO2 and 2012
PM2.5 NAAQS.
    9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs
provide for revision of such plan: (i) ``[f]rom time to time as may be
necessary to take account of revisions of such national primary or
secondary ambient air quality standard or the availability of improved
or more expeditious methods of attaining such standard[;] and (ii)
except as provided in paragraph (3)(C), whenever the Administrator
finds on the basis of information available to the Administrator that
the [SIP] is substantially inadequate to attain the [NAAQS] which it
implements or to otherwise comply with any additional requirements
under this [Act].''
    South Dakota's statutory provision at SDCL 34A-1-6 gives DENR
sufficient authority to meet the requirements of 110(a)(2)(H).
Therefore, we propose to approve South Dakota's SIP as meeting the
requirements of CAA section 110(a)(2)(H).
    10. Consultation with government officials, public notification,
PSD and visibility protection: Section 110(a)(2)(J) requires that each
SIP ``meet the applicable requirements of section 121 of this title
(relating to consultation), section 127 of this title (relating to
public notification), and part C of this subchapter (relating to PSD of
air quality and visibility protection).''
    The State has demonstrated it has the authority and rules in place
through its certifications (contained within this docket) to provide a
process of consultation with general purpose local governments,
designated organizations of elected officials of local governments and
any Federal Land Manager having authority over federal land to which
the

SIP applies, consistent with the requirements of CAA section 121.
Furthermore, the EPA previously addressed the requirements of CAA
section 127 for the South Dakota SIP and determined public notification
requirements are appropriate (45 FR 58525, Sept. 4, 1980).
    As previously discussed, the State has a SIP-approved PSD program
that incorporates by reference the federal program at 40 CFR 52.21. The
EPA has further evaluated South Dakota's SIP approved PSD program in
this proposed action under element (C) and determined the State has
satisfied the requirements of element 110(a)(2)(C), as previously
noted. Therefore, the State has also satisfied the requirements of
element 110(a)(2)(J).
    Finally, with regard to the applicable requirements for visibility
protection, the EPA recognizes states are subject to visibility and
regional haze program requirements under part C of the Act. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus, we
find that there are no applicable visibility requirements under section
110(a)(2)(J) when a new NAAQS becomes effective.
    Based on the above analysis, we propose to approve the South Dakota
SIP as meeting the requirements of CAA section 110(a)(2)(J) for the
2010 SO2 and 2012 PM2.5 NAAQS.
    11. Air quality and modeling/data: Section 110(a)(2)(K) requires
each SIP to provide for: (i) ``the performance of such air quality
modeling as the Administrator may prescribe for the purpose of
predicting the effect on ambient air quality of any emissions of any
air pollutant for which the Administrator has established a [NAAQS];
and (ii) the submission, upon request, of data related to such air
quality modeling to the Administrator.''
    South Dakota's PSD program incorporates by reference the federal
program at 40 CFR 52.21, including the provision at 40 CFR 52.21(l)(1)
requiring that estimates of ambient air concentrations be based on
applicable air quality models specified in Appendix W of 40 CFR part
51, and the provision at 40 CFR 52.21(l)(2) requiring that modification
or substitution of a model specified in Appendix W must be approved by
the Administrator.
    Additionally, SDLC section 34A-1-1, 34A-1-10, and 1-40-31 provide
the Department with the authority to advise, consult, and cooperate
with the EPA and provide the EPA with public records, such as air
quality modeling. As a result, the SIP provides for such air quality
modeling as the Administrator has prescribed. Therefore, we propose to
approve the South Dakota SIP as meeting the CAA section 110(a)(2)(K)
for the 2010 SO2 and 2012 PM2.5 NAAQS.

12. Permitting Fees

    Section 110(a)(2)(L) requires ``the owner or operator of each major
stationary source to pay to the permitting authority, as a condition of
any permit required under this [Act], a fee sufficient to cover[:] (i)
the reasonable costs of reviewing and acting upon any application for
such a permit[;] and (ii) if the owner or operator receives a permit
for such source, the reasonable costs of implementing and enforcing the
terms and conditions of any such permit (not including any court costs
or other costs associated with any enforcement action), until such fee
requirement is superseded with respect to such sources by the
Administrator's approval of a fee program under [title] V.''
    The funding sources used for the PSD permit reviews conducted by
South Dakota derive from EPA grant and matching State general
funds.\12\ In light of the State's experience that funding from grants
and general funds has been sufficient to operate a successful PSD
program, it is reasonable that the PSD permit applicants are not
charged any permit-specific fees.
---------------------------------------------------------------------------

    \12\ See Email from Brian Gustafson ``Question Regarding
Permitting Fees for SD iSIP Action'' July 24, 2014, available within
docket.
---------------------------------------------------------------------------

    We also note that all the State SIPs we are proposing to approve in
this action cite the regulation that provides for collection of
permitting fees under the State's EPA-approved title V permit program
(ARSD 74:37:01), which we approved and became effective February 28,
1996 (61 FR 2720, Jan. 29, 1996). Therefore, based on the State's
experience in relying on the grant and general funds for PSD permits,
and the use of title V fees to implement and enforce PSD permits once
they are incorporated into title V permits, we propose to approve the
submissions as supplemented by the State for the 2010 SO2
and 2012 PM2.5 NAAQS.

13. Consultation/Participation by Affected Local Entities

    Section 110(a)(2)(M) requires states to ``provide for consultation
and participation [in SIP development] by local political subdivisions
affected by [the SIP].''
    The statutory provisions cited in South Dakota's SIP submittals
(SDCL section 34-A-1 and 34A-1-10 Environmental Protection, contained
within this docket) provide the South Dakota DENR with the authority to
advise, consult, and cooperate with agencies of the state, local
governments, industries, other states, interstate or inter-local
agencies, the federal government, and with interested persons or groups
and therefore meet the requirements of CAA section 110(a)(2)(M). We
propose to approve South Dakota's SIP as meeting these requirements for
the 2010 SO2 and 2012 PM2.5 NAAQS.

VII. What action is the EPA taking?

    In this action, the EPA is proposing to approve infrastructure
elements for the 2010 SO2 and 2012 PM2.5 NAAQS
from the State's certifications as shown in Table 1. Elements we
propose no action on are reflected in Table 2. A comprehensive summary
of infrastructure elements organized by the EPA's proposed rule action
are provided in Table 1 and Table 2.

Table 1--List of South Dakota Infrastructure Elements and Revisions That
                     the EPA Is Proposing To Approve
------------------------------------------------------------------------
                          Proposed for approval
-------------------------------------------------------------------------
December 20, 2013 submittal--2010 SO2 NAAQS:
    (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K),
     (L) and (M).
January 25, 2016 submittal--2012 PM2.5 NAAQS:
    (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K),
     (L) and (M).
------------------------------------------------------------------------

Table 2--List of South Dakota Infrastructure Elements and Revisions That
                the EPA Is Proposing To Take no action On
------------------------------------------------------------------------
   Proposed for no action (Revision to be made in separate rulemaking
                                action.)
-------------------------------------------------------------------------
December 20, 2013 submittal--2010 SO2 NAAQS:
    (D)(i)(I) prongs 1 and 2.
January 25, 2016 submittal--2012 PM2.5 NAAQS:
    (D)(i)(I) prongs 1 and 2.
------------------------------------------------------------------------

VIII. Statutory and Executive Orders Review

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

List of Subjects in 40 CFR Part 52

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

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

    Dated: May 16, 2017.
Suzanne J. Bohan,
Acting Regional Administrator, Region 8.
[FR Doc. 2017-11573 Filed 6-5-17; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 86, Number 196 (Thursday, October 14, 2021)]
[Notices]
[Page 57178]
[FR Doc No: 2021-22409]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-4613-DR; Docket ID FEMA-2021-0001]

North Dakota; Major Disaster and Related Determinations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This is a notice of the Presidential declaration of a major
disaster for the State of North Dakota (FEMA-4613-DR), dated September
1, 2021, and related determinations.

DATES: The declaration was issued September 1, 2021.

FOR FURTHER INFORMATION CONTACT: Dean Webster, Office of Response and
Recovery, Federal Emergency Management Agency, 500 C Street SW,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Notice is hereby given that, in a letter
dated September 1, 2021, the President issued a major disaster
declaration under the authority of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act, 42 U.S.C. 5121 et seq. (the
``Stafford Act''), as follows:

    I have determined that the damage in certain areas of the State
of North Dakota resulting from a severe storm, straight-line winds,
and flooding during the period of June 7 to June 11, 2021, is of
sufficient severity and magnitude to warrant a major disaster
declaration under the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5121 et seq. (the ``Stafford
Act''). Therefore, I declare that such a major disaster exists in
the State of North Dakota.
    In order to provide Federal assistance, you are hereby
authorized to allocate from funds available for these purposes such
amounts as you find necessary for Federal disaster assistance and
administrative expenses.
    You are authorized to provide Public Assistance in the
designated areas and Hazard Mitigation throughout the State.
Consistent with the requirement that Federal assistance be
supplemental, any Federal funds provided under the Stafford Act for
Public Assistance and Hazard Mitigation will be limited to 75
percent of the total eligible costs.
    Further, you are authorized to make changes to this declaration
for the approved assistance to the extent allowable under the
Stafford Act.

    The Federal Emergency Management Agency (FEMA) hereby gives notice
that pursuant to the authority vested in the Administrator, under
Executive Order 12148, as amended, Lance Davis, of FEMA is appointed to
act as the Federal Coordinating Officer for this major disaster.
    The following areas of the State of North Dakota have been
designated as adversely affected by this major disaster:

    Burke, Divide, Emmons, Grant, Kidder, LaMoure, Sioux, and
Williams Counties for Public Assistance.
    All areas within the State of North Dakota are eligible for
assistance under the Hazard Mitigation Grant Program.

    The following Catalog of Federal Domestic Assistance Numbers
(CFDA) are to be used for reporting and drawing funds: 97.030,
Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis
Counseling; 97.033, Disaster Legal Services; 97.034, Disaster
Unemployment Assistance (DUA); 97.046, Fire Management Assistance
Grant; 97.048, Disaster Housing Assistance to Individuals and
Households In Presidentially Declared Disaster Areas; 97.049,
Presidentially Declared Disaster Assistance--Disaster Housing
Operations for Individuals and Households; 97.050, Presidentially
Declared Disaster Assistance to Individuals and Households--Other
Needs; 97.036, Disaster Grants--Public Assistance (Presidentially
Declared Disasters); 97.039, Hazard Mitigation Grant.

Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2021-22409 Filed 10-13-21; 8:45 am]
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