[Federal Register Volume 81, Number 152 (Monday, August 8, 2016)]
[Proposed Rules]
[Pages 52388-52393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18759]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2016-0424; FRL-9950-38-Region 8]
Approval and Promulgation of Air Quality Implementation Plans;
South Dakota; Revisions to the Permitting Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve State Implementation Plan (SIP) revisions submitted by the
State of South Dakota on October 23, 2015 and July 29, 2013 related to
South Dakota's Air Pollution Control Program. The October 23, 2015
submittal revises certain definitions and dates of incorporation by
reference and contains new, amended and renumbered rules. In this
rulemaking, we are taking final action on all portions of the October
23, 2015 submittal, except for those
[[Page 52389]]
portions of the submittal which do not belong in the SIP. This action
is being taken under section 110 of the Clean Air Act (CAA).
DATES: Written comments must be received on or before September 7,
2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2016-0424, at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from 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: Kevin Leone, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6227,
[email protected].
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, 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
July 29, 2013 Submittal
On July 29, 2013, the State of South Dakota submitted a SIP
revision containing amendments 74:36:10:06 (Causing or contributing to
a violation of any national ambient air quality standard). This
revision added significant impact levels (SILs) for particulate matter
less than 2.5 microns (PM2.5.) as required in the EPA's
October 20, 2010, PM2.5 ``Increment Rule.'' However, on
January 22, 2013, the United States Court of Appeals for the District
of Columbia Circuit vacated the SILs for PM2.5. On December
9, 2013, the EPA issued a final rule that removes the PM2.5
SILs from the EPA's PSD regulations (78 FR 73698). As a result of this
court decision and the EPA's rulemaking, in the October 23, 2015,
submittal, South Dakota removed the SILs for PM2.5 from
section 74:36:10:06. This action effectively supersedes the July 29,
2013 action for 74:36:10:06.
October 23, 2015 Submittal
A. Chapter 74:36:01--Definitions
Chapter 74:36:01 defines the terms used throughout Article 74:36--
Air Pollution Control Program. There are six definitions in Chapter
74:36:01 that reference federal regulations. The sections in Chapter
74:36:01 that are being updated to the version of the federal reference
as of July 1, 2014, involve the following: 74:36:01:01(8),
74:36:01:01(29), 74:36:01:01(67), 74:36:01:01(73), 74:36:01:05, and
74:36:01:20. We will be acting on the revision to 74:36:01:01(73) in a
separate rulemaking. This is addressed in more detail under section III
of this rulemaking.
South Dakota's October 23, 2015 submittal also added the phrase
``insignificant increase in allowable emissions'' to the definition of
``permit revision'' in section 74:36:01(50) and revised the definition
of ``modification'' in section 74:36:01:10 to allow an exception for
insignificant increases in allowable emissions. This proposed
rulemaking also adds a new definition for ``Insignificant increases in
allowable emissions'' in section 74:36:01:10.01. This addition to the
definition for ``insignificant increase in allowable emissions'' is to
account for all of the new federal standards covering small sources of
air pollutants, to streamline the permitting actions for these small
sources, and to be consistent with federal permitting requirements.
This definition was derived from Table I in 40 CFR 49.153 and is
addressed in more detail under section III of this rulemaking.
B. Chapter 74:36:02--Ambient Air Quality
Chapter 74:36:02 established air quality goals and ambient air
quality standards for South Dakota. The sections in Chapter 74:36:02
that are being updated to the version of the federal reference as of
July 1, 2014, involve the following: 74:36:02:02, 74:36:02:03,
74:36:02:04 and 74:36:02:05.
C. Chapter 74:36:03--Air Quality Episodes
Chapter 74:36:03 identifies the contingency plan the South Dakota
Department of Environment and Natural Resources (DENR) will follow
during an air pollution emergency episode. The sections in Chapter
74:36:03 that are being updated to the version of the federal reference
as of July 1, 2014, involve the following: 74:36:03:01 and 74:36:03:02.
D. Chapter 74:36:04--Operating Sources for Minor Sources
Chapter 74:36:04 is South Dakota's minor source air quality
operating permit program. The section in Chapter 74:36:04 that is being
updated to the version of the federal reference as of July 1, 2014,
involve the following: 74:36:04:04.
Section 74:36:04:03 lists emission units that are exempt from
inclusion in
[[Page 52390]]
a minor air quality operating permit. Emission units may not be
exempted if federally enforceable limits have been included in the
permit to avoid other permits. The revisions are being proposed to
clarify that any unit that is subject to a federal rule in Chapter
74:36:07--New Source Performance Standards and Chapter 74:36:08--
National Emission Standards for Hazardous Air Pollutants may not be
exempted from inclusion in the minor air quality operating permit.
A definition for ``insignificant increase in allowable emissions''
is being added to Chapter 74:36:01 to account for all of the new
federal standards covering small sources of air pollutants, to stream
line the permitting actions for these small sources, and to be
consistent with the federal permitting requirements. As such, the
revisions are proposing to add section 74:36:04:21.01 which will
identify procedures for processing an application for activities that
are considered an ``insignificant increase in allowable emissions.''
This process will allow construction projects to move forward if the
air pollution increase meets the definition of an ``insignificant
increase in allowable emissions.''
E. Chapter 74:36:05--Operating Sources for Part 70 Sources
We are not taking action on revisions to this chapter. Title V
permits are not part of the SIP.
F. Chapter 74:36:07--New Source Performance Standards
We are not taking action on revisions to this chapter. New source
performance standards (NSPS) are not part of the SIP.
G. Chapter 74:36:08--National Emission Standards for Hazardous Air
Pollutants
We are not taking action on revisions to this chapter. National
emission standards for hazardous air pollutants (NESHAPs) are not part
of the SIP.
H. Chapter 74:36:09--Prevention of Significant Deterioration
Chapter 74:36:09 is South Dakota's PSD preconstruction program for
major sources located in areas of the state that attain the federal
national ambient air quality standards (NAAQS). The sections in Chapter
74:36:09 that are being updated to the version of the federal reference
as of July 1, 2014, involve the following: 74:36:09:02 and 74:36:09:03.
This chapter also adds 74:36:09:02(7), 74:36:09:02(8) and
74:36:09:02(9). These provisions remove 40 CFR 52.21(b)(49)(v) and
references to 40 CFR 52.21(b)(49)(v) from the SIP.
I. Chapter 74:36:10--New Source Review
Chapter 74:36:10 is South Dakota's New Source Review (NSR)
preconstruction permit program for major sources in areas of the state
that are not attaining the NAAQS. All of South Dakota is in attainment
with the federal standards; therefore, there are no facilities that
require a preconstruction permit under this program.
The sections in Chapter 74:36:10 that are being updated to the
version of the federal reference as of July 1, 2014, involve the
following: 74:36:10:02, 74:36:10:03.01, 74:36:10:05, 74:36:10:07 and
74:36:10:08.
On March 30, 2011, the EPA extended the stay of the ``Fugitive
Emissions Rule'' under the new source review program. The extension
clarified the stay and revisions of specific paragraphs in the new
source review program affected by the ``Fugitive Emissions Rule.''
Changes to 74:36:10:02 are proposed revise South Dakota's SIP to remove
these references.
On January 22, 2013, the United States Court of Appeals for the
District of Columbia Circuit vacated the significant impact levels for
PM2.5 in the new source review program. The revisions to
74:36:10:06 reflect this court decision.
J. Chapter 74:36:11--Performance Testing
Chapter 74:36:11 identifies the performance testing requirements
used by permitted facilities to demonstrate compliance with permit
limits. The sections in Chapter 74:36:11 that are being updated to the
version of the federal reference as of July 1, 2014, involve the
following: 74:36:11:01.
K. Chapter 74:36:12--Control of Visible Emissions
Chapter 74:36:12 identifies visible emission limits for units that
emit air pollution. The sections in Chapter 74:36:12 that are being
updated to the version of the federal reference as of July 1, 2014,
involve the following: 74:36:12:01 and 74:36:12:03.
L. Chapter 74:36:13--Continuous Emission Monitoring Systems
Continuous Emission Monitoring Systems are part of South Dakota's
Title V program and are not part of the SIP.
M. Chapter 74:36:16--Acid Rain Program
The Acid Rain Program is not part of the SIP.
N. Chapter 74:36:18--Regulations for State Facilities in the Rapid City
Area
The sections in Chapter 74:36:18 that are being updated to the
version of the federal reference as of July 1, 2014, involve the
following: 74:36:18:10.
O. Chapter 74:36:20--Construction Permits for New Sources or
Modifications
The reference date for the federal regulation is proposed to be
updated to the most current version of the federal reference of July 1,
2014. This revision will update any minor inconsistency between South
Dakota's SIP and EPA's federal regulations as of July 1, 2014. These
proposed changes involve section 74:36:20:05.
South Dakota's October 23, 2015, submittal adds certain pre-permit
construction activities and also adds procedures for an ``insignificant
increase in allowable emissions.'' These revisions are discussed in
more detail in Section III of this rulemaking.
III. What is the EPA proposing to approve?
A. What the EPA Is Not Acting On
1. The EPA is not acting on revisions to 74:36:05 (Operating
Permits for Part 70 Sources), 74:36:07 (New Source Performance
Standards) and 74:36:08 (National Emission Standards for Hazardous Air
Pollutants) and 74:36:16 (Acid Rain) because these sections are not
part of the SIP.
2. The EPA will act on revisions to 74:36:01(73) (definition for
Subject to Regulation), and 74:36:09:02(10) in a separate rulemaking.
These revisions revise the definition of ``Subject to Regulation'' in
the SIP. The definition of ``Subject to Regulation'' is located in 40
CFR 51.166(a)(48)(i)-(v) and 40 CFR 52.21(b)(49)(i)-(v).
On June 23, 2014, the U.S. Supreme Court (Utility Air Regulatory
Group (UARG) v. EPA) held that the EPA may not treat greenhouse gases
(GHGs) as an air pollutant for the specific purposes of determining
whether a source is a major source and thus required to obtain a PSD or
title V permit. On April 10, 2015, the D.C. Circuit issued a Coalition
Amended Judgement, which reflects the UARG v. EPA Supreme Court
Decision. The EPA issued a final rulemaking addressing the court
decision on August 19, 2015 (80 FR 50199).
The Coalition Amended Judgement only specifically ordered that the
EPA regulations under review (including 40 CFR 51.166(b)(48)(v) and
52.21(b)(49)(v)) be vacated. In the EPA's final rulemaking titled
``Prevention of Significant Deterioration and Title V
[[Page 52391]]
Permitting for Greenhouse Gases: Removal of Certain Vacated Element,''
which was published on August 19, 2015 (80 FR 50199), we state:
This final action removes from the CFR several provisions of the
PSD and title V permitting regulations that were originally
promulgated as part of the Tailoring Rule and that the D.C. Circuit
specifically identified as vacated in the Coalition Amended
Judgement. Because the D.C. Circuit specifically identified the
Tailoring Rule Step 2 PSD permitting requirements in 40 CFR
51.166(b)(48)(v) and 52.21(b)(49)(v) and the regulations that
require the EPA to consider further phasing-in the GHG permitting
requirements at lower GHG emission thresholds in 40 CFR 52.22, 70.12
and 71.13 as vacated, the EPA is taking the ministerial action of
removing these provisions from the CFR.
EPA further states:
The EPA intends to further revise the PSD and title V
regulations to fully implement the Coalition Amended Judgement in a
separate rulemaking. This future rulemaking will include revisions
to additional definitions in the PSD regulations.
We are acting on 74:36:01(73) in a separate rulemaking because
South Dakota added the sentence ``Greenhouse gases are not subject to
regulation unless a PSD preconstruction permit is issued regulating
greenhouse gases in accordance with chapter 74:39:09.'' This sentence
is not in compliance with the current definition of ``Subject to
Regulation'' in 40 CFR 51.166(b)(48) and 52.21(b)(49). As mentioned
previously in this rulemaking, the EPA intends to publish a future
rulemaking which will revise additional definitions in the PSD
regulations. However, the EPA's rulemaking in 80 FR 50199 only removes
40 CFR 51.166(b)(48)(v).
We are acting on 74:36:09(02)(10) in a separate rulemaking because
74:36:09(02)(10) revises the definition of 40 CFR 52.21(b)(49)(iv)(b).
The revision is not in compliance with the current definition of
``Subject to Regulation'' in 40 CFR 51.166(b)(48) and
52.21(b)(49)(iv)(b). Section 52.21(b)(49)(iv)(b) was not addressed in
80 FR 50199.
The EPA intends to act on these revisions after a future EPA
rulemaking is published to include revisions to additional definitions
in the PSD regulations.
B. What the EPA Is Acting On
The EPA is proposing to approve all revisions as submitted by the
State of South Dakota on October 23, 2015, with the exception of the
revisions mentioned in section III. A. of this rulemaking. This
includes the following revisions:
The Removal of PM2.5 SILs
We are proposing to approve the removal of PM2.5 SILs
from 74:36:10:06.
On January 22, 2013, the U.S. Court of Appeals for the District of
Columbia Circuit ruled on a challenge brought by the Sierra Club to the
SILs and significant monitoring concentration (SMC) established for
PM2.5 in the EPA's October 20, 2010 rule for implementing
the PM2.5 NAAQS. The court found there was no authority for
the SMC established for PM2.5 and, as a result, vacated the
SMC. With respect to the PM2.5 SIL, the court vacated and
remanded the SIL to the EPA at the agency's request. SILs and SMCs have
been important screening tools that have been used to prevent
unnecessary PSD permitting delays when the impact of the emission
increases are considered de minimis. On December 9, 2013, the EPA
issued a final rule that removes the PM2.5 SIL from the
EPA's PSD regulations. The final rule also sets the SMC in the EPA's
PSD regulations at 0 [mu]g/l, thus triggering the preconstruction
monitoring requirement for any increase in ambient concentrations of
PM2.5 from a major project.
Pre-Permit Construction Activities
Chapter 74:36:20 requires an air quality construction permit for
new businesses/facilities and existing businesses/facilities that
modify their operations that do not meet the requirements for obtaining
a preconstruction permit in Chapters 74:36:09 and 74:36:10. DENR
submitted Chapter 74:36:20 to the EPA for inclusion in South Dakota's
SIP. The EPA approved Chapter 74:36:20 in South Dakota's SIP on June
27, 2014, except for the phrase, ``unless it meets the requirements in
section 74:36:20:02.01,'' and all of section 74:36:20:02.01 (79 FR
36419). This section was disapproved because construction was not
limited to construction of concrete foundations, below ground plumbing,
ductwork, or other infrastructure and/or excavation work prior to the
issuance of the construction permit and there was no requirement for
the source to receive a completeness determination (or some type of
administrative approval) from the reviewing authority prior to
construction. In this submittal, Section 74:36:20:02.01 allows small
projects to start construction, which is limited to construction of
concrete foundations, below ground plumbing, ductwork, or other
infrastructure and/or excavation work, after they receive a
completeness determination and prior to receiving a construction permit
but does not allow them to start operation until the construction
permit has been issued. The intention of the language was to allow
construction of small sources that would not impact South Dakota's
ability to achieve and/or maintain the NAAQS because of South Dakota's
relative short construction season due to ground freezing during the
winter season or other inclement weather that could potentially and
unnecessarily delay the construction project. These changes were made
to resolve the issue with the EPA's prior disapproval of section
74:36:20:02.01 in South Dakota's SIP.
South Dakota's proposed language sets specific conditions that must
be met prior to a source commencing construction (but before a
construction permit has been issued): (1) The owner/operator has
submitted a construction permit application; (2) The owner/operator
provided five days notice of their intention to initiate construction;
(3) The new source or modification to an existing source is not subject
to PSD or NSR (it has to be a true minor source); (4) The new source or
modification is not subject to case-by-case MACT; (5) The owner/
operator is liable for all construction conducted before the permit is
issued, and the applicant may not operate any source equipment that may
emit any air pollutant prior to receiving a permit; (6) The owner/
operator must cease construction if the DENR demonstrates that the
construction will interfere with the attainment or maintenance of a
NAAQS or increment; and (7) The owner/operator must make any changes to
the new source or modification of an existing source that may be
imposed in the issued construction permit.
This revision is in compliance with federal requirements,
including: (1) CAA section 110(a)(2)(c), which requires states to
include a minor NSR program in their SIP to regulate modifications and
new construction of stationary sources within the area as necessary to
assure the NAAQS are achieved; (2) The regulatory requirements under 40
CFR 51.160, including section 51.160(b), which requires states to have
legally enforceable procedures to prevent construction or modification
of a source if it would violate any SIP control strategies or interfere
with attainment or maintenance of the NAAQS; and (3) the statutory
requirements under CAA section 110(l), which provides that the EPA
cannot approve a SIP revision if the revision would interfere with any
applicable requirement concerning attainment and reasonable further
progress, or any other applicable requirement of the CAA.
[[Page 52392]]
Insignificant Increase in Allowable Emissions
On July 1, 2011, the EPA promulgated a federal minor source review
program in Indian country (Tribal NSR Rule) (76 FR 38748). The Tribal
NSR Rule does not require a construction permit for new sources or
modifications to existing sources if emissions are below the minor NSR
threshold in Table 1 of 40 CFR 49.153.
In this rulemaking, the EPA established de minimis thresholds at
which sources are to be exempt from permitting requirements for each
regulated NSR pollutant (see 40 CFR 49.153--Table 1) utilizing an
allowable-to-allowable applicability test. The EPA stated in this
rulemaking that these threshold levels represent a reasonable balance
between environmental protection and economic growth (76 FR 38758). The
EPA further recognized in designing the tribal NSR rule, that the
overarching requirement is ensuring NAAQS protection (76 FR 38756) as
described in CAA section 110(a)(2)(C). In order to determine that the
sources below minor NSR permit thresholds in 40 CFR 49.153--Table 1
would be inconsequential to attainment or maintenance of the NAAQS, the
EPA performed a national source distribution analysis (see 71 FR
48702). In this analysis, the EPA looked at size distribution of
existing sources across the country. Using the National Emissions
Inventory (NEI), which includes the most comprehensive inventory of
existing U.S. stationary point sources that is available, the EPA
determined how many of these sources fall below the proposed minor NSR
thresholds (see 71 FR 48702, Table 2). For each pollutant, the EPA
found that only around 1 percent (or less) of total emissions would be
exempt from review under the minor NSR program. At the same time, the
thresholds would promote an effective balance between environmental
protection and source burden because anywhere from 42 percent to 76
percent of sources (depending on the pollutant) would be too small to
be subject to preconstruction review (76 FR 38758). South Dakota, which
contains areas of Indian country that are subject to the permitting
thresholds in the tribal NSR rule, has established the same exemption
levels as those in the tribal NSR rule. In addition, as the EPA
explained in the tribal NSR rule, this will ``allow us to begin
leveling the playing field with the surrounding state programs and will
result in a more cost-effective program by reducing the burden on
sources and reviewing authorities.'' (see 76 FR 38758)
In order to be consistent with the EPA and to streamline the
process for insignificant increases in air emissions, DENR is proposing
to add ``insignificant increase in allowable emissions'' to the
definition of ``permit revision'' in section 74:36:01(50) and an
exemption to the definition of ``modification'' in section 74:36:01:10,
which will allow construction if the air emission increases meet the
definition of an ``insignificant increase in allowable emissions.''
This can also be referred to as a ``de minimus exemption.'' DENR is
proposing to add a definition for ``insignificant increase in allowable
emissions,'' which is derived from Table 1 in 40 CFR 49.153, in
74:36:01:10.01. This process would still require the project to be
covered by a permit but would use a process similar to the EPA's
administrative amendment process.
We have also reviewed South Dakota's air monitoring data over the
last 5 years (see docket). This data shows South Dakota is below the
NAAQS for all criteria pollutants.
The EPA notes that we have approved several similar de minimis
exemption provisions in other states as follows:
1. On January 16, 2003, the EPA approved a minor NSR program for
the State of Idaho (68 FR 2217). This rule allows changes to be
considered exempt from permitting if the source's uncontrolled
potential emissions are less than ten percent (10%) of the NSR
significant emissions rate. For example: 1.5 tons per year for
PM10, 4 tons per year for volatile organic compounds (VOCs),
nitrogen dioxide (NO2), and sulfur dioxide (SO2),
and 10 tons per year for carbon monoxide (CO). The EPA determined in
this instance that states may exempt from minor NSR certain categories
of changes based on de minimis or administrative necessity grounds in
accordance with the criteria set out in Alabama Power Co. v. Costle,
636 F.2d 323 (D.C. Cir. 1979). De minimis sources are presumed to not
have an impact and the state has determined that their emissions would
not prevent or interfere with attainment of the NAAQS, even within
nonattainment areas.
2. On February 13, 2012, the EPA approved a five tons per year
potential emissions level as a de minimis threshold to be exempt from
permitting requirements in the State of Montana (77 FR 7531). In this
final rulemaking, the EPA determined this de minimis threshold met the
requirements of CAA section 110(a)(2)(C), 40 CFR part 51.160 and CAA
section 110(l).
3. On May 27, 2008, the EPA approved a 25 tons per year actual
emissions level as a de minimis threshold for fossil fuel burning
equipment to be exempt from permitting requirements in the State of
North Dakota, and a 5 ton per year actual emissions level as a de
minimis threshold for any internal combustion engine, or multiple
engines to be exempt from permitting requirements. The EPA determined
the revision will not adversely impact the NAAQS or PSD increments (73
FR 30308).
4. On February 1, 2006, the EPA approved a 5 tons per year actual
emissions level as a de minimis threshold to be exempt from permitting
requirements in the State of North Carolina (see 61 FR 3584).
We evaluated the addition of ``insignificant increase in allowable
emissions'' to the South Dakota SIP using the following: (1) The
statutory requirements under CAA section 110(a)(2)(c), which requires
states to include a minor NSR program in their SIP to regulate
modifications and new construction of stationary sources within the
area as necessary to assure the NAAQS are achieved; (2) the regulatory
requirements under 40 CFR 51.160, including section 51.160(b), which
requires states to have legally enforceable procedures to prevent
construction or modification of a source if it would violate any SIP
control strategies or interfere with attainment or maintenance of the
NAAQS; and (3) the statutory requirements under CAA section 110(l),
which provides that the EPA cannot approve a SIP revision if the
revision would interfere with any applicable requirement concerning
attainment and reasonable further progress, or any other applicable
requirement of the CAA. Therefore, the EPA will approve a SIP revision
only after it is demonstrated that such a revision will not interfere
(``noninterference'') with attainment of the NAAQS, Rate of Progress
(ROP), RFP or any other applicable requirement of the CAA.
We are proposing to approve the addition of ``insignificant
increase in allowable emissions.'' These revisions are expected to be
inconsequential to attainment and maintenance of the NAAQS because: (1)
Section 74:36 has safeguards which prevent circumvention of NSR
requirements; (2) Sources are still regulated by other rules within
74:36 and underlying statewide area source rules in the Administrative
Rules of South Dakota (ARSD); (3) The insignificant thresholds in
74:36:01:10.01 are the same as the de minimis level threshold in the
Tribal
[[Page 52393]]
NSR rule and similar to many of the federally enforceable minor NSR
programs in surrounding states and around the country; (4) South Dakota
contains areas of Indian country that are subject to the permitting
thresholds in the tribal NSR rule; and (5) The last 5 years of
monitoring data for criteria pollutants (see docket) show that all
pollutants are below NAAQS levels.
Removal of 40 CFR 52.21(b)(49)(v) From 74:36:09 (PSD)
We are approving the removal of 40 CFR 52.21(b)(49)(v) from
74:36:09 to reflect the Coalition Amended Judgement, which only
specifically ordered that the EPA regulations under review (including
40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v)) be vacated. The EPA's
final rulemaking titled ``Prevention of Significant Deterioration and
Title V Permitting for Greenhouse Gases: Removal of Certain Vacated
Element,'' which was published on August 19, 2015 (80 FR 50199) removed
40 CFR 52.21(b)(49)(v) from the CFR.
Proposed Correction to IBR Material in Previous Rulemaking
In our final rule published in the Federal Register on February 16,
2016 (81 FR 7706) we inadvertently used an incorrect approval date in
the updates to the South Dakota regulatory table. The EPA is proposing
to correct this error with today's action. The IBR material for our
February 16, 2016 action is contained within this docket.
IV. What action is the EPA taking?
For the reasons described in section III of this proposed
rulemaking, the EPA is proposing to approve South Dakota's October 23,
2015 submittal, with the exceptions noted in section III. Our action is
based on an evaluation of South Dakota's revisions against the
requirements of CAA section 110(a)(2)(c) and regulatory requirements
under 40 CFR 51.160-164 and 40 CFR 51.166. The EPA is also proposing to
approve a correction to our final rule published in the Federal
Register on February 16, 2016 (81 FR 7706).
IV. Incorporation by Reference
In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference the Administrative Rules of South Dakota pertaining to
section 74:36 as outlined in this preamble. The EPA has made, and will
continue to make, these documents generally available electronically
through www.regulations.gov and/or in hard copy at the appropriate EPA
office (see the ADDRESSES section of this preamble for more
information).
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves state law as meeting
federal requirements and does not impose additional requirements beyond
those imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, 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 the EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds, Incorporation by reference.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 26, 2016.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2016-18759 Filed 8-5-16; 8:45 am]
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