

[Federal Register: February 1, 2007 (Volume 72, Number 21)]
[Proposed Rules]               
[Page 4671-4674]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01fe07-17]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2006-0928; FRL-8275-1]

 
Approval and Promulgation of Air Quality Implementation Plan; 
South Dakota; Revisions to New Source Review Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
revisions adopted by South Dakota on August 29, 2006 to Chapter 
74:36:09 of the South Dakota Administrative Rules (Prevention of 
Significant Deterioration of Air Quality). South Dakota submitted the 
request for approval of these rule revisions into the State 
Implementation Plan (SIP) on September 1, 2006. South Dakota was 
granted delegation of authority by EPA on July 6, 1994 to implement and 
enforce the federal Prevention of Significant Deterioration (PSD) 
permitting regulations. EPA's delegation of authority to South Dakota 
for the PSD regulations would be rescinded if EPA issues final approval 
of this SIP revision, except for the one rule provision that EPA is 
proposing to disapprove. This action is being taken under section 110 
of the Clean Air Act.

DATES: Comments must be received on or before March 5, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2006-0928, by one of the following methods:
     http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
     E-mail: daly.carl@epa.gov and ostrand.laurie@epa.gov.

     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Director, Air and Radiation Program, Environmental 
Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129.
     Hand Delivery: Director, Air and Radiation Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only 
accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2006-0928. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information provided, 

unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-mail. 

The http://www.regulations.gov Web site is an ``anonymous access'' system, 

which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA, without going through 
http://www.regulations.gov, your e-mail address will be automatically captured 

and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket visit the 
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. 

For additional instructions on submitting comments, go to Section I. 
General Information of the SUPPLEMENTARY INFORMATION section of this 
document.
    Docket: All documents in the docket are listed in the 
http://www.regulations.gov


[[Page 4672]]

index. Although listed in the index, some information is not publicly 
available, e.g., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, will be publicly available only in hard copy. Publicly 
available docket materials are available either electronically in 
http://www.regulations.gov or in hard copy at the Air and Radiation Program, 

Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129. EPA requests that if at all possible, you 
contact the individual listed in the FOR FURTHER INFORMATION CONTACT 
section to view the hard copy of the docket. You may view the hard copy 
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Carl Daly, Air and Radiation Program, 
U.S. Environmental Protection Agency, Region 8, 1595 Wynkoop Street, 
Denver, Colorado 80202-1129, (303) 312-6416, daly.carl@epa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

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

Table of Contents

I. General Information
    A. What Should I Consider as I Prepare My Comments for EPA?
II. What Is Being Addressed in This Document?
III. What Are the Changes That EPA Is Approving?
IV. What Action Is EPA Taking?
V. Statutory and Executive Order Reviews

I. General Information

A. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of the 

information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to 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:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. What Is Being Addressed in This Document?

    EPA is proposing to approve revisions to Chapter 74:36:09 
(Prevention of Significant Deterioration of Air Quality) of the 
Administrative Rules of South Dakota. These revisions were submitted to 
EPA by the South Dakota Department of Environment and Natural Resources 
(DENR) on September 1, 2006, and relate to the Prevention of 
Significant Deterioration (PSD) permit program of the State of South 
Dakota. These revisions to Chapter 74:36:09 were adopted by the South 
Dakota Board Interim Rules Committee on August 29, 2006. South Dakota 
was granted delegation of authority by EPA on July 6, 1994 to implement 
and enforce the federal PSD permitting regulations. EPA provided notice 
of this delegation in the Federal Register on September 15, 1994 (59 FR 
47260).
    On December 31, 2002, EPA published revisions to the federal PSD 
and non-attainment NSR regulations in 40 CFR parts 51 and 52 (67 FR 
80186). These revisions are commonly referred to as the ``NSR Reform'' 
regulations and became effective nationally in areas not covered by a 
SIP on March 3, 2003. Since South Dakota is delegated for PSD and not 
covered by a SIP, the NSR Reform regulations became effective in South 
Dakota at that time. These regulatory revisions include provisions for 
baseline emissions determinations, actual-to-future-actual methodology, 
plantwide applicability limits (PALs), clean units, and pollution 
control projects (PCPs). As stated in the December 31, 2002 rulemaking, 
State and local permitting agencies must adopt and submit revisions to 
their part 51 permitting programs implementing the minimum program 
elements of that rulemaking no later than January 2, 2006 (67 FR 
80240). As noted above, South Dakota is currently delegated for the PSD 
program and is not subject to this requirement, but the State requests 
in their submittal to have the PSD program incorporated into South 
Dakota's SIP.
    On November 7, 2003, EPA published a reconsideration of the NSR 
Reform regulations that clarified two provisions in the regulations by 
including a definition of ''replacement unit'' and by clarifying that 
the plantwide applicability limitation (PAL) baseline calculation 
procedures for newly constructed units do not apply to modified units.
    On June 24, 2005, the United States Court of Appeals for the 
District of Columbia Circuit issued its ruling on challenges to the 
December 2002 NSR Reform revisions (State of New York et al. v. EPA, 
413 F.3d 3 (D.C. Cir. 2005)). Although the Court upheld most of EPA's 
rules, it vacated both the Clean Unit and the Pollution Control Project 
provisions and remanded back to EPA the recordkeeping provision at 40 
CFR 52.21(r)(6) that required a stationary source to keep records of 
projects when there was a ``reasonable possibility'' that the project 
could result in a significant emissions increase.
    On October 27, 2003 EPA published the Routine Equipment Replacement 
Provision (68 FR 61248), which specified at 40 CFR 52.21(cc) the 
criteria for routine equipment. On March 17, 2006, the Court of Appeals 
for the D.C. Circuit vacated EPA's final Routine Equipment Replacement 
Provision (ERP).
    In its revision to Chapter 74:36:09 of the South Dakota 
Administrative Rules, South Dakota did not incorporate the vacated 
Clean Unit, PCP, and ERP provisions.

[[Page 4673]]

III. What Are the Changes That EPA Is Approving?

    EPA is proposing to approve a revision to South Dakota's SIP that 
would incorporate by reference the federal PSD requirements, found at 
40 CFR 52.21, into the State's PSD program. The revision to the South 
Dakota Administrative Rules Chapter 74:36:09 incorporates by reference 
the provisions of 40 CFR 52.21, as they exist on July 1, 2005, with the 
exceptions noted below.
    South Dakota did not incorporate by reference those sections of the 
federal rules that do not apply to State activities or are reserved for 
the Administrator of the EPA. These sections are 40 CFR 52.21(a)(1) 
(plan disapproval), 52.21(q) (public participation), 52.21(s) 
(environmental impact statements), 52.21(t) (disputed permit or 
redesignations), and 52.21(u) (delegation of authority).
    South Dakota did not incorporate by reference the vacated federal 
requirements for Equipment Replacement, Clean Unit, and Pollution 
Control Project. Therefore, the following federal provisions found in 
40 CFR 52.21 are not incorporated by reference in Chapter 74:36:09: 40 
CFR 52.21(x), 52.21(y), 52.21(z), 52.21(cc), 52.21(a)(2)(iv)(e), the 
second sentence of 52.21(a)(2)(iv)(f), 52.21(a)(2)(vi), 
52.21(b)(2)(iii)(h), 52.21(b)(3)(iii)(b), 52.21(b)(3)(vi)(d), 
52.21(b)(32), 52.21(b)(42), (b)(55), (b)(56), (b)(57), (b)(58), and the 
phrase ``other than projects at a Clean Unit or at a source with a 
PAL'' in 40 CFR 52.21(r)(6).
    The phrase ``reasonable possibility'' used in the federal rule at 
40 CFR 52.21(r)(6) limits the recordkeeping provisions to modifications 
at facilities that use the actual-to-future-actual methodology to 
calculate emissions changes and that may have a ``reasonable 
possibility'' of a significant emissions increase. The South Dakota 
rule does incorporate by reference the phrase ``reasonable 
possibility'' as it is used at 40 CFR 52.21(r)(6). EPA has not yet 
responded to the D.C. Circuit Court's remand of the recordkeeping 
provisions of EPA's 2002 NSR Reform Rules. As a result, EPA's final 
decision with regard to the remand may require EPA to take further 
action on this portion of South Dakota's rule. At this time, however, 
South Dakota's recordkeeping provisions are as stringent as the federal 
requirements, and are therefore approvable.
    The South Dakota incorporation by reference describes the 
circumstances in which the term ``Administrator'' continues to mean the 
EPA Administrator and when it means the Secretary of DENR instead. 
South Dakota rule 74:36:09:02(1) identifies the following provisions in 
Chapter 74:36:09 where the term ``Administrator'' continues to mean the 
Administrator of EPA: 40 CFR 52.21(b)(17), 52.21(b)(37)(i), 
52.21(b)(43), 52.21(b)(48)(ii)(c), 52.21(b)(50)(i), 52.21(g)(1) to 
52.21(g)(6), and 52.21(l)(2). This list does not include 40 CFR 
52.21(p)(2). Therefore, under South Dakota's PSD rule, the term 
``Administrator'' in 40 CFR 52.21(p)(2) refers to the Secretary of the 
DENR.
    This is inconsistent with EPA's determination that 40 CFR 
52.21(p)(2) must still refer to the Administrator of EPA. EPA bases 
this determination on a review of its PSD regulations at 40 CFR 51.166. 
While the PSD regulations at 40 CFR 52.21 apply to EPA's direct 
implementation of the PSD program in States that do not have an 
approved PSD SIP, the PSD regulations at 40 CFR 51.166 identify the 
elements States must include in their SIPs to gain EPA approval. The 
regulations at 40 CFR 51.166 generally mirror the regulations at 40 CFR 
52.21, except that the term ``Administrator'' in 40 CFR 52.21 is often 
replaced by the term ``reviewing authority'' in 40 CFR 51.166. However, 
40 CFR 51.166(p)(2), which corresponds to 40 CFR 52.21(p)(2), retains 
the term ``Administrator,'' indicating that in SIPs the required 
consultation must continue to occur with the EPA Administrator, not the 
Administrator of the State program. In contrast, other provisions in 40 
CFR 51.166(p) use the term ``reviewing authority'' in place of 
Administrator (e.g., 40 CFR 51.166(p)(1) and (p)(3)).
    In addition, EPA's determination is consistent with recently EPA 
approved SIP revisions where the State has incorporated by reference 40 
CFR 52.21. Mississippi's PSD regulations identify that ``Administrator 
as it appears in 40 CFR 52.21 shall mean the Mississippi Environmental 
Quality Permit Board, except that: * * * In the following subsections, 
it shall continue to mean the Administrator of the USEPA: * * * i. 
(p)(2) (concerning Federal Land Manager).'' (See 71 FR 38773, July 10, 
2006). Missouri's PSD regulations identify that ``Administrator as it 
appears in 40 CFR 52.21 shall refer to the director of the Missouri 
Department of Natural Resources' Air Pollution Control Program except 
in the following, where it shall continue to refer to the administrator 
of the U.S. Environmental Protection Agency: * * * 9. (p)(2) Federal 
Land Manager.'' (See 71 FR 36486, (June 27, 2006)).
    Therefore, we are proposing disapproval of 74:36:09:02's 
incorporation of 40 CFR 52.21(p)(2), and we are proposing to disapprove 
74:36:09:02(1) to the extent it defines ``Administrator,'' as used in 
40 CFR 52.21(p)(2), to mean the Secretary of DENR. In all other 
respects, we are approving 74:36:09:02 and 74:36:09:02(1). Thus, until 
South Dakota revises its PSD rule to address our concern and gains EPA 
approval of the revision, 40 CFR 52.21(p)(2) will continue to apply as 
federal law in lieu of the State-adopted version of 40 CFR 52.21(p)(2). 
This means that the consultation required by 40 CFR 52.21(p)(2) needs 
to occur with the EPA Administrator, not the Secretary of DENR.\1\
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    \1\ 40 CFR 52.21(p)(2): ``Federal Land Manager. The Federal Land 
Manager and the Federal official charged with direct responsibility 
for management of Class I lands have an affirmative responsibility 
to protect the air quality related values (including visibility) of 
any such lands and to consider, in consultation with the 
Administrator, whether a proposed source or modification would have 
an adverse impact on such values.''
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    If South Dakota submits a SIP revision that revises their PSD rule 
to clarify that the term ``Administrator,'' as used in 40 CFR 
52.21(p)(2), means the EPA Administrator prior to final EPA action on 
this SIP rulemaking, EPA will approve the incorporation by reference of 
40 CFR 52.21(p)(2).
    As noted above, South Dakota did not incorporate by reference 40 
CFR 52.21(q) (public participation). South Dakota has instead 
incorporated by reference 40 CFR 51.166(q) (public participation) at 
74:36:09:03. The regulations at 40 CFR 51.166 are what a SIP must 
contain for EPA to approve a PSD permit program, and generally mirror 
the federal PSD regulations at 40 CFR 52.21. In addition, South Dakota 
added in 74:36:09:03 six additional provisions that revise 40 CFR 
51.166(q) in order to make the PSD permit public participation 
requirements specific to South Dakota.
    The requirements included in South Dakota's PSD program, as 
specified in Chapter 74:36:09, are substantively the same as the 
federal PSD provisions due to South Dakota's incorporation of the 
federal rules by reference. The revisions South Dakota made to 40 CFR 
52.21 noted above were reviewed by EPA and found to be as stringent as 
the federal rules, except for provision 74:36:09:02(1), noted above. 
EPA has, therefore, determined that, except for 74:36:09:02(1), the 
proposed revisions are consistent with the program requirements for the 
preparation, adoption, and submittal of

[[Page 4674]]

implementation plans for the Prevention of Significant Deterioration of 
Air Quality, as set forth at 40 CFR 51.166, and are approvable as part 
of the South Dakota SIP.

IV. What Action Is EPA Taking?

    We propose to partially approve revisions to Administrative Rules 
of South Dakota, Chapter 74:36:09 Prevention of Significant 
Deterioration into the South Dakota SIP. EPA is proposing to disapprove 
74:36:09:02's incorporation of 40 CFR 52.21(p)(2), and we are proposing 
disapproval of 74:36:09:02(1) to the extent that it defines 
``Administrator,'' as used in 40 CFR 52.21(p)(2), to mean the Secretary 
of DENR. In all other respects, we are approving 74:36:09:02 and 
74:36:09:02(1).

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
proposed action merely proposes to partially approve and partially 
disapprove state law as meeting Federal requirements and imposes no 
additional requirements beyond those imposed by state law. Accordingly, 
the Administrator certifies that this proposed rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule proposes to approve pre-existing requirements under state law 
and does not impose any additional enforceable duty beyond that 
required by state law, it 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).
    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175 (59 FR 22951, November 9, 2000). This action also does not 
have Federalism implications because it does not have substantial 
direct effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action 
merely proposes to approve a state rule implementing a federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This 
proposed rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant. In 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Clean Air Act. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does 
not impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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.

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

     Dated: January 23, 2007.
Kerrigan G. Clough,
Acting Regional Administrator, Region 8.
[FR Doc. E7-1621 Filed 1-31-07; 8:45 am]

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