[Federal Register Volume 84, Number 124 (Thursday, June 27, 2019)]
[Proposed Rules]
[Pages 30686-30689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13636]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2019-0064; FRL-9995-24-Region 8]


South Dakota; Proposed Approval of Revisions to the State Air 
Pollution Control Rules and to the Permitting Rules for the Prevention 
of Significant Deterioration

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) and Operating Permit Program 
revisions submitted by the State of South Dakota on October 23, 2015, 
related to South Dakota's Air Pollution Control Program. The October 
23, 2015 submittal revises certain definitions in the Prevention of 
Significant Deterioration (PSD) permitting rules and general definition 
section related to greenhouse gases (GHGs). In this rulemaking, we are 
proposing action on portions of the October 23, 2015 submittal, which 
were not acted on in our previous final rulemaking published on October 
13, 2016. The effect of this rulemaking is to ensure that certain 
definitions in South Dakota's PSD rules are in compliance with the 
federal PSD requirements. This action is being taken under the Clean 
Air Act (CAA).

DATES: Written comments must be received on or before July 29, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2019-0064 to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
www.regulations.gov. The EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the Web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air and Radiation 
Division, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. The EPA requests that if at all 
possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to

[[Page 30687]]

view the hard copy of the docket. You may view the hard copy of the 
docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Quality Planning 
Branch, EPA, Region 8, Mailcode 8ARD-QP, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129, (303) 312-6227, leone.kevin@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

I. Background

    On June 3, 2010 (75 FR 31514), the EPA published a final rule, 
known as the GHG Tailoring Rule, which, with respect to the CAA PSD 
permitting program, phased in permitting requirements for GHG emissions 
from stationary sources. Under its interpretation of the CAA at the 
time, the EPA determined it was necessary to avoid an unmanageable 
increase in the number of sources that would be required to obtain PSD 
permits under the CAA because the sources emitted or had the potential 
to emit GHGs at or above the applicable major source and major 
modification thresholds. In Step 1 of the GHG Tailoring Rule, the EPA 
limited application of PSD requirements to sources only if they were 
subject to PSD ``anyway'' due to the emissions of other non-GHG 
pollutants. These sources were referred to as ``anyway'' sources. In 
Step 2 of the GHG Tailoring Rule, the EPA applied the PSD permitting 
requirements under the CAA to sources that were classified as major 
based solely on their GHG emissions or potential to emit GHGs, and to 
modifications of otherwise major sources that require a PSD permit 
because they increased only GHG emissions above the level in the EPA 
regulations.
    On June 23, 2014, the United States Supreme Court addressed the 
application of PSD and Title V 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 (or a modification thereof) and thus 
required to obtain a PSD or title V permit. With respect to PSD, 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) issued an amended judgment effectively vacating the 
regulations that implemented Step 2 of the EPA's GHG Tailoring Rule. 
Coalition for Responsible Regulation v. EPA, 606 F. App'x. 6, at 7-8 
(D.C. Cir. April 10, 2015) (Amended Judgment). With respect to PSD, 
Step 2 applied to sources that emitted only GHGs at or above the 
thresholds triggering the requirement to obtain a PSD permit. The 
Amended Judgment preserves, without the need for additional rulemaking 
by the EPA, the application of the BACT requirement to GHG emissions 
from Step 1 or ``anyway sources.'' With respect to PSD 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.'' The Amended Judgment further ordered that: ``the 
regulations under review be vacated to the extent they require a 
stationary source to obtain a title V permit solely because the source 
emits or has the potential to emit greenhouse gases above the 
applicable major source thresholds.''
    In accordance with the D.C. Circuit's Amended Judgment, on August 
19, 2015 (80 FR 50199), the EPA published a final rulemaking titled: 
``Prevention of Significant Deterioration and Title V Permitting for 
Greenhouse Gases: Removal of Vacated Elements.'' In this rulemaking, 
the EPA removed GHG Tailoring Rule Step 2 PSD permitting requirements 
in 40 CFR 51.166(b)(48)(v) and 40 CFR 52.21(b)(49)(v) from the CFR.
    As mentioned, the Amended Judgment specifically ordered that 
certain 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 Permitting for 
Greenhouse Gases: Removal of Certain Vacated Elements,'' 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 
Judgment. 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 Judgment in a 
separate rulemaking. This future rulemaking will include revisions 
to additional definitions in the PSD regulations.

    South Dakota's PSD preconstruction permitting program consists of 
sections 74-36-09-01 through 74-36-09-03. The State's submittal 
incorporated by reference as of October 23, 2015, the revisions to 
remove the GHG Tailoring Rule Step 2 PSD permitting requirements in 40 
CFR 52.21(b)(49)(v) from their state implementation plan (SIP) in 
74:36:09:02(7)-(9) (removing 40 CFR 52.21(b)(49)(v) as well as the 
references to 40 CFR 52.21(b)(49)(v)). These revisions were approved in 
81 FR 70626 and published on October 13, 2016 (see docket).
    In this action we propose to approve two additional revisions 
contained in the State's 2015 submittal: South Dakota's revision to the 
definition of ``subject to regulation'' in 74:36:01:01(73) \1\ and the 
addition of the new provision in 74:36:09-02(10).\2\ In our October 13, 
2016 action, we did not act on South Dakota's revisions in 
74:36:01:01(73) because it revises the definition of ``regulated NSR 
pollutant'' and 74:36:09(02)(10) revises language in Sec.  
52.21(b)(49)(iv)(b) related to ``regulated NSR pollutant.'' The EPA 
determined that it was not appropriate to act on any revisions related 
to definitions as a result of the court's decision at that time 
because, as mentioned above, the EPA's final rulemaking titled 
``Prevention of Significant Deterioration and Title V Permitting for 
Greenhouse Gases: Removal of Certain Vacated Elements'' stated that a 
future rulemaking will include revisions to additional definitions in 
the PSD regulations.
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    \1\ The State's proposed rule changes appear in the document 
titled ``Appendix A, Proposed Amendment to ARSD 74-36--Air Pollution 
Control Program'', which is in the Docket. Appendix A, p. A-14, PDF 
p. 431.
    \2\ Appendix A, p. A-175, PDF p. 330.
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    On October 3, 2016, the EPA proposed the additional definition

[[Page 30688]]

revisions in ``Revisions to the Prevention of Significant Deterioration 
(PSD) and Title V Greenhouse Gas (GHG) Permitting Regulations and 
Establishment of a Significant Emissions Rate (SER) for GHG Emissions 
Under the PSD Program.'' 81 FR 68110. In the 2016 action, the EPA 
proposed to revise certain definitions in the PSD permitting 
regulations to fully implement the Amended Judgment. Specifically, we 
proposed the following.
     The first revision would revise the definitions of ``major 
stationary source'' and ``major modification'' by repealing all parts 
of the definition of ``subject to regulation'', except for the first 
paragraph, which simply serves to codify our interpretation of the term 
``subject to regulation.'' Thus, this rulemaking simply proposed 
retention of the first paragraph in the definition of ``subject to 
regulation'' at 40 CFR 51.166(b)(48) and 52.21(b)(49) and proposed 
adding a sentence explaining that pollutants subject to regulation 
include, but are not limited to, greenhouse gases.
     The second revision would establish a freestanding 
definition of the term ``greenhouse gases'' at 40 CFR 51.166(b)(31) and 
52.21(b)(32). Previously, the definition of this pollutant was located 
within the definition of ``subject to regulation'' and the EPA simply 
proposed to move the language that defined GHGs into an independent 
definition for the term ``greenhouse gases,'' including the method to 
compute tons per year CO2 equivalent emissions 
(CO2e). We explained that this proposed change to the EPA's 
definition of GHG in the PSD permitting rules does not change the 
meaning of the term, as it will be the exact same language as in the 
existing regulations.\3\
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    \3\ We note that EPA's proposed rulemaking covered additional 
revisions, which are not relevant to the State's submission. EPA has 
not finalized this proposal.
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    Because South Dakota's revisions are consistent with the D.C. 
Circuit's amended judgement, the EPA's October 3, 2016, proposed 
rulemaking does not need to be finalized in order for us to approve 
South Dakota's revisions.

II. The EPA's Evaluation

A. Chapter 74:36:01:01--Definitions

    We are proposing approval to the changes in 74:36:01:01(73). 
Chapter 74:36:01:01 defines the terms used throughout Article 74:36--
Air Pollution Control Program. The State updated 74:36:01:01(73) to 
reflect the D.C. Circuit's Amended Judgment. In particular, South 
Dakota modified the definition of ``subject to regulation'' by striking 
the reference to the definition of ``subject to regulation'' in the 
part 70 rules (40 CFR 70.2) and replacing it with: ``Subject to 
regulation means, for any air pollutant, that the pollutant is subject 
to either a provision in the Clean Air Act, or a nationally-applicable 
regulation codified by the Administrator in subchapter C of this 
chapter, that requires actual control of the quantity of emissions of 
that pollutant, and that such a control requirement has taken effect 
and is operative to control, limit or restrict the quantity of 
emissions of that pollutant released from the regulated activity. 
Greenhouse gases are not subject to regulation unless a PSD 
preconstruction permit is issued regulating greenhouse gases in 
accordance with chapter 74:36:09.''
    The State's definition of ``subject to regulation'' retains the 
first paragraph in Sec.  52.21(b)(49), which codifies the 
interpretation of the term ``subject to regulation,'' which has the 
effect of revising the definitions of ``major stationary source'' and 
``major modification.'' In adopting only the first paragraph of Sec.  
52.21(b)(49), the State's definition excludes the exceptions to the 
definition of ``subject to regulation'' provisions in 40 CFR 
52.21(b)(49)(i)-(iv). Those provisions are relevant for the PSD program 
and are found elsewhere in the State's PSD rules.\4\ The State also 
added the following sentence to the end of the definition of ``subject 
to regulation'': ``[g]reenhouse gases are not subject to regulation 
unless a PSD preconstruction permit is issued regulating greenhouse 
gases accordance with chapter 74:36:09.'' We propose to approve this 
additional sentence because we do not believe it would reduce the 
stringency of the SIP definition of ``subject to regulation,'' as 
compared to the revised definitions in our ``Prevention of Significant 
Deterioration and Title V Permitting for Greenhouse Gases: Removal of 
Vacated Elements'' rulemaking, and because it is consistent with the 
Amended Judgment.
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    \4\ Our October 13, 2016 final action (81 FR 70626) approved the 
following exception to the State's adoption by reference of the PSD 
rules. 74:36:09:02(7)-(9), adopts by reference the term ``Subject to 
regulation'' in 40 CFR 52.21(b)(49), which includes Sec.  
52.21(b)(49)(i)-(iv) and conforming amendments, but not Sec.  
52.21(b)(49)(v). We note that our 2016 final action did not include 
a revision the EPA proposed in response to the Amended Judgment that 
adds a sentence to the end of the first paragraph of 40 CFR 
52.21(b)(49) (``Pollutants subject to regulation include, but are 
not limited to, greenhouse gases as defined in paragraph (b)(32) of 
this section''). 81 FR 68143. Even if EPA were to finalize its 
proposal, we do not believe this additional sentence is needed in 
the South Dakota regulations because the definition applies to all 
sources, including non-PSD sources, and ``Subject to regulation'' 
for purposes of PSD is adopted by reference elsewhere in the State's 
rules.
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    Additionally, the State's revision to 74:36:01:01(73) removed and 
replaced the reference in that section to the definition of ``subject 
to regulation'' in 40 CFR 70.2, which we propose to approve in light of 
the Amended Judgment, which, in effect, ordered the vacatur of the 
requirement in the part 70 regulations that a stationary source obtain 
a title V permit solely because it emits or has the potential to emit 
GHGs above the title V major source threshold. This modification is 
approvable because it is consistent with the Amended Judgment, which 
describes the CAA permitting authority regarding GHG emissions, and 
thus we do not believe it would reduce the stringency of the definition 
in the SIP compared with the federal definitions of ``subject to 
regulation'' found in Sec.  51.166(b)(48), Sec.  52.21(b)(49), and 
Sec.  70.2.

B. Chapter 74:36:09--Prevention of Significant Deterioration

    We are proposing approval to the addition of 74:36:09:02(10). 
Chapter 74:36:09 is South Dakota's PSD preconstruction program for 
major sources located in areas of the State that are designated 
attainment for the federal national ambient air quality standards 
(NAAQS) identified in 74:36:02, which adopts the EPA's PSD rules in 40 
CFR 52.21 by reference, noting certain differences. The EPA approved 
the PSD preconstruction permitting program in South Dakota's SIP. South 
Dakota's October 23, 2015 submittal added 74:36:09:02(10) as an 
additional difference from the federal rules, which states that for the 
purposes of this section, 40 CFR 52.21(b)(49)(iv)(b), the term ``also 
will have an emissions increase of a regulated NSR pollutant'' means 
``also will have a major modification of a regulated NSR pollutant that 
is not GHGs.'' This provision amends one of the exceptions to the 
definition of ``subject to regulation'' in the State's PSD rules 
(``Beginning January 2, 2011, the pollutant GHGs is subject to 
regulation if: . . . [t]he stationary source is an existing major 
stationary source for a regulated NSR pollutant that is not GHGs, and 
also will have an emissions increase of a regulated NSR pollutant, and 
an emissions increase of 75,000 tpy CO2e or more''). The 
State's change was not included in either of the EPA's recent actions 
to amend the PSD applicability rules for GHG emissions (80 FR 50199 and 
81 FR 68110, described above). Nevertheless, we propose to approve the 
change because it is consistent with the intent of our

[[Page 30689]]

federal rules since the regulatory definition of ``major modification'' 
found at [insert either 40 CFR 52.21(b)(2)(i) or South Dakota's 
equivalent rule provision] is essentially equivalent in meaning to the 
term ``emissions increase'' as it is defined at 40 CFR 
52.21(b)(49)(iii). This change reflects the D.C. Circuit's Amended 
Judgment in that 74:36:09:02(10) merely emphasizes that a source has to 
trigger PSD for a non-GHG pollutant before GHGs can become subject to 
regulation. This modification is approvable because it does not reduce 
the stringency of the federal definition of ``subject to regulation'' 
found in Sec.  51.166(b)(48) and Sec.  52.21(b)(49).

III. Proposed Action

    For the reasons described in section II of this proposed 
rulemaking, the EPA is proposing to approve the revisions submitted by 
South Dakota on October 23, 2015, which were not acted on in 81 FR 
70626. Our action is based on an evaluation of South Dakota's revisions 
against the requirements of CAA sections 110(a)(2)(c) and 502(b), and 
regulatory requirements under 40 CFR 51.160-164, 40 CFR 51.166, 40 CFR 
52.21, 40 CFR part 70 and the D.C. Circuit's Amended Judgment.

IV. Consideration of Section 110(l) of the CAA

    Under section 110(l) of the CAA, the EPA cannot approve a SIP 
revision if the revision would interfere with any applicable 
requirements concerning attainment and reasonable further progress 
(RFP) toward attainment of the NAAQS, or any other applicable 
requirement of the Act. In addition, section 110(l) requires that each 
revision to an implementation plan submitted by a state shall be 
adopted by the state after reasonable notice and public hearing.
    The South Dakota SIP revisions that the EPA proposes to approve do 
not interfere with any applicable requirements of the Act. The 
revisions to the Administrative Rules of South Dakota (ARSD) 
74:36:09:02(10) and 74:36:01(73) submitted by South Dakota on October 
23, 2015, ensure South Dakota's PSD program is in compliance with the 
federal PSD requirements. Therefore, CAA section 110(l) requirements 
are satisfied.

V. Incorporation by Reference

    In this rule, the EPA proposes 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 proposes to incorporate by 
reference the ARSD rules promulgated in 74:36, as described in section 
II of this preamble. The EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and/or at the 
EPA Region 8 Office (please contact the person identified in the For 
Further Information Contact section of this preamble for more 
information).

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the proposed rule does not have tribal implications and 
will not impose substantial direct costs on tribal governments or 
preempt tribal law as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
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: June 21, 2019.
Debra H. Thomas,
Regional Administrator, Region 8.
[FR Doc. 2019-13636 Filed 6-26-19; 8:45 am]
 BILLING CODE 6560-50-P


