[Federal Register Volume 84, Number 176 (Wednesday, September 11, 2019)]
[Rules and Regulations]
[Pages 47887-47889]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19571]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2019-0064; FRL-9999-16-Region 8]


South Dakota; 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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action 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 also taking final 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: This final rule is effective on October 11, 2019.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R08-OAR-2019-0064. All documents in the docket are 
listed on the http://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available through http://www.regulations.gov, or please 
contact the person identified in the For Further Information Contact 
section for additional availability information.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air and Radiation 
Division, 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 ``we,'' ``us,'' and 
``our'' means the EPA.

[[Page 47888]]

I. Background

    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 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 are taking final action 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) and 74:36:09(02)(10) for reasons stated in 
our proposed rulemaking. Those reasons will not be re-stated here; 
please refer to our proposed rulemaking which was published on June 27, 
2019 (84 FR 30686.) We also provided a detailed explanation of the 
basis for our proposed approval in our June 27, 2019, rulemaking. We 
invited comment on all aspects of our proposal and provided a 30-day 
comment period. The comment period ended on July 29, 2019.
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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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II. Response to Comments

    We received no comments during the public comment period.

III. Final Action

    For the reasons outlined in our proposed rulemaking, the EPA is 
taking final action to approve the revisions to the definition of 
``subject to regulation'' in 74:36:01:01(73) and the addition of the 
new provision in 74:36:09-02(10) that were submitted by South Dakota on 
October 23, 2015. Specifically, we are taking final action to approve:

A. Chapter 74:36:01--Definitions

    Chapter 74:36:01 defines the terms used throughout Article 74:36--
Air Pollution Control Program. South Dakota's October 13, 2015 
submittal revises the definition of ``subject to regulation'' by 
removing its existing reference to the definition of ``subject to 
regulation'' as defined in 40 CFR 70.2 (July 1, 2012), as revised in 
publication 75 FR 31607 (June 3, 2010), in accordance with EPA 
requirements. This definition is being replaced with the first 
paragraph of the definition of ``subject to regulation'' found in 40 
CFR 52.21(b)(49), with the addition of the phrase ``Greenhouse Gases 
are not subject to regulation unless a PSD preconstruction permit is 
issued regulating greenhouse gases in accordance with chapter 
74:36:09.''

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

    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). South Dakota is adding 
new paragraph 74:36:09:02(10), which states: ``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 GHG.' ''

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference of the State 
of South Dakota's revisions to its SIP as described in section III of 
this preamble. The EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and at the 
EPA Region 8 Office (please contact the person identified in the For 
Further Information Contact section of this preamble for more 
information). Therefore, these materials have been approved by the EPA 
for inclusion in the SIP, have been incorporated by reference by the 
EPA into that plan, are fully federally enforceable under sections 110 
and 113 of the CAA as of the effective date of the final rulemaking of 
the EPA's approval, and will be incorporated by reference in the next 
update to the SIP compilation.\3\
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    \3\ 62 FR 27968 (May 22, 1997).
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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 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 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, described in the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where 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).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides

[[Page 47889]]

that before a rule may take effect, the agency promulgating the rule 
must submit a rule report, which includes a copy of the rule, to each 
House of the Congress and to the Comptroller General of the United 
States. The EPA will submit a report containing this action and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 12, 2019. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
Organic Compounds.

    Dated: September 4, 2019.
Gregory Sopkin,
Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart QQ--South Dakota

0
2. In Sec.  52.2170, paragraph (c) is amended by revising the table 
entries for ``74:36:01:01'' and ``74:36:09:02'' to read as follows:


Sec.  52.2170   Identification of plan.

* * * * *
    (c) * * *

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                                            State       EPA effective     Final rule
      Rule No.           Rule title    effective date       date        citation, date          Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
74:36:01:01.........  Definitions....      10/15/2015      10/11/2019  9/11/2019,       ........................
                                                                        [insert
                                                                        Federal
                                                                        Register
                                                                        citation].
 
                                                  * * * * * * *
74:36:09:02.........  Prevention of        10/15/2015      10/11/2019  9/11/2019,       ........................
                       Significant                                      [insert
                       Deterioration.                                   Federal
                                                                        Register
                                                                        citation].
 
                                                  * * * * * * *
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[FR Doc. 2019-19571 Filed 9-10-19; 8:45 am]
 BILLING CODE 6560-50-P


