Clean Air Act Approval and Promulgation of State Implementation Plan for South Dakota; Revisions to the Air Pollution Control Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SD6-1-6947a and SD5-1-6191a; FRL-5279-3]

Clean Air Act Approval and Promulgation of State Implementation

Plan for South Dakota; Revisions to the Air Pollution Control Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA approves the State implementation plan (SIP) revisions

submitted by the State of South Dakota on November 12, 1993 and March

7, 1995. EPA is replacing the existing rules approved in the SIP with

the following chapters of the Administrative Rules of South Dakota

(ARSD), as requested by the State: 74:36:01-74:36:04, 74:36:06;

74:36:07, 74:36:10-74:36:13, and 74:36:15, as in effect on January 5,

1995. The State's submittals included revisions to the State's

definitions, minor source construction and federally enforceable state

operating permit (FESOP) rules, source category emission limitations,

sulfur dioxide (SO2) rules, new source performance standards

(NSPS), new source review (NSR) requirements for new and modified major

sources impacting nonattainment areas, and enhanced monitoring and

compliance certification requirements.

In addition, EPA is approving the State's construction and

operating permit program under section 112(l) of the Clean Air Act

(Act) for the purposes of creating federally enforceable permit

conditions for sources of hazardous air pollutants (HAPs).

DATES: This final rule is effective on November 6, 1995 unless adverse

comments are received by October 6, 1995. If the effective date is

delayed, timely notice will be published in the Federal Register.

ADDRESSES: Copies of the State's submittal and other information are

available for inspection during normal business hours at the following

locations: Air Programs Branch, Environmental Protection Agency, Region

VIII, 999 18th Street, suite 500,

[[Page 46223]]

Denver, Colorado 80202-2405; South Dakota Department of Environment and

Natural Resources, Division of Environmental Regulation, Joe Foss

Building, Pierre, South Dakota 57501; and The Air and Radiation Docket

and Information Center, 401 M Street, SW, Washington, D.C. 20460.

Written comments should be addressed to Vicki Stamper, 8ART-AP,

Environmental Protection Agency, Region VIII, 999 18th Street, suite

500, Denver, Colorado.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, (303) 293-1765.

SUPPLEMENTARY INFORMATION:

I. Background

On November 12, 1993, the State of South Dakota submitted revisions

to its SIP. Specifically, the State requested that the existing State

rules approved in the SIP be replaced with the most recent codification

of the ARSD, Chapters 74:36:01-04 and 74:36:06-13 inclusive. In

addition to recodification, the State made numerous revisions to its

air quality regulations, including definitions, minor source

construction and operating permit rules, source category emission

limitations, NSPS, national emission standards for hazardous air

pollutants (NESHAPs), NSR requirements for new and modified sources

impacting nonattainment areas, and other minor revisions.

In a July 13, 1994 letter, EPA noted many deficiencies in the

State's November 12, 1993 submittal and requested that the State

correct the major deficiencies before EPA would proceed with approval.

The State made those corrections to its rules and submitted the rule

corrections to EPA on March 7, 1995. In that submittal, the State also

addressed EPA's July 7, 1994 call for revision of the South Dakota SIP

to comply with the enhanced monitoring and compliance certification

program requirements of sections 110, 113, and 114 of the Act. In

addition, the State adopted other revisions to its rules, including its

acid rain rules and updates to its incorporation by reference of the

Federal requirements for NSPS and HAPs.

The March 7 submittal requested that the previous regulations

approved in the SIP be replaced with ARSD Chapters 74:36:01-74:36:04,

74:36:06; 74:36:07, 74:36:10-74:36:13, and 74:36:15, as in effect on

January 5, 1995. The following State regulations were not included in

the State's March 7 SIP submittal: ARSD 74:36:05 Operating Permits for

Part 70 Sources, for which EPA granted interim approval on March 22,

1995 (see 60 FR 15066-15069); ARSD 74:36:08 National Emission Standards

for Hazardous Air Pollutants, which the State has taken out of the SIP

and has instead requested delegation of authority for these standards;

ARSD 74:36:09 Prevention of Significant Deterioration (PSD), which

incorporates by reference the corresponding Federal rules at 40 CFR

52.21 that EPA delegated authority to the State to implement on July 6,

1994 (see September 15, 1994 Federal Register, 59 FR 47260); ARSD

74:36:14 Variances, which the State did not include in the SIP because

such a provision could not be approved as part of the SIP as it is

inconsistent with section 110(i) of the amended Act; and ARSD 74:36:16

Acid Rain Program, which will be acted on by EPA separate from this SIP

approval.

This document evaluates the State's submittal for conformity with

the corresponding Federal regulations and the requirements of the Act.

II. This Action

A. Analysis of State Submissions

1. Procedural Background

The Act requires States to observe certain procedural requirements

in developing implementation plans and plan revisions for submission to

EPA. Section 110(a)(2) of the Act provides that each implementation

plan submitted by a State must be adopted after reasonable notice and

public hearing. Section 110(l) of the Act similarly provides that each

revision to an implementation plan submitted by a State under the Act

must be adopted by such State after reasonable notice and public

hearing.

The EPA also must determine whether a submittal is complete and

therefore warrants further EPA review and action [see section 110(k)(1)

and 57 FR 13565, April 16, 1992]. The EPA's completeness criteria for

SIP submittals are set out at 40 CFR part 51, appendix V. The EPA

attempts to make completeness determinations within 60 days of

receiving a submission. However, a submittal is deemed complete by

operation of law under section 110(k)(a)(B) if a completeness

determination is not made by EPA within six months after receipt of the

submission.

The State of South Dakota held public hearings on February 18, 1993

and November 17, 1994 to entertain public comment on the SIP revisions,

at which the rule revisions were adopted by the State. These rule

revisions were formally submitted to EPA for approval in the SIP on

November 12, 1993 and on March 7, 1995.

The SIP revisions were reviewed by EPA to determine completeness

shortly after their submittal, in accordance with the completeness

criteria referenced above. The submittals were found to be complete,

and letters dated January 12, 1994 and June 28, 1995 were forwarded to

the Governor indicating the completeness of the submittals and the next

steps to be taken in the processing of the SIP submittals.

2. Evaluation of State's Submittals

The following summarizes the State's submittals and EPA's review

for approvability:

a. ARSD 74:36:01 Definitions

The State made numerous revisions to its definitions in ARSD

74:36:01 in order to make the definitions consistent with other

provisions in the State's rules and with the corresponding Federal

regulations, including the State's recently adopted title V permitting

program in ARSD 74:36:05 and the acid rain program in ARSD 74:36:16.

EPA has reviewed the definitions included in this chapter against

the corresponding Federal definitions in 40 CFR parts 51, 60, and 70

and for conformity with the State's regulations. EPA believes the

revised definitions are consistent with the corresponding Federal

definitions, with the following clarifications.

As discussed in EPA's January 12, 1995 Federal Register notice of

proposed interim approval of South Dakota's title V program (see 60 FR

2919), EPA believes clarification regarding two of the State's

definitions is necessary to ensure that the provisions are interpreted

consistently with the Federal regulations:

(1) The definition of ``federally enforceable'' which appears at

ARSD 74:36:01:01(28) reads as follows:

``Federally enforceable,'' all limits and conditions that are

enforceable by the administrator of EPA pursuant to federal law.

These limits and conditions include those requirements developed

pursuant to this article, those appearing in 40 CFR 60 and 61 (July

1, 1993), requirements within the state implementation plan and

permit requirements established pursuant to this article or 40 CFR

51 Subpart I (July 1, 1993). The use of this term does not impede

the Department's authority under state law to enforce these limits

and conditions.

This definition is significant for determining whether a source is

subject to preconstruction and operating permitting requirements as a

major source or as a minor source, because it is used in defining the

``potential to emit'' of a source. To be consistent with EPA's

definition of ``federally

[[Page 46224]]

enforceable,'' the second sentence of the above definition cannot and

should not be read to expand on the first sentence of the definition.

For example, requirements developed pursuant to ARSD Article 74:36

might be, but would not necessarily be, federally enforceable. Such

Federal enforceability would depend on whether such requirements had

been included in a source's preconstruction or operating permit issued

under an EPA-approved program, whether such requirements had been

approved by EPA as part of the SIP, or whether such requirements were

already considered Federal regulations (such as NSPS promulgated in 40

CFR part 60 which South Dakota has incorporated by reference in ARSD

74:36:07). EPA's interpretation is that the requirements delineated in

the second sentence of the definition are only federally enforceable if

they are enforceable by the administrator of EPA pursuant to Federal

law.

(2) The second sentence of the definition of ``major source'' in

ARSD 74:36:01:08(1) reads as follows:

Emissions from any oil exploration or production well and its

associated equipment and emissions from any pipeline compressor or

pump station may not be aggregated with emissions from other similar

units, whether or not such units are in a contiguous area or under

common control, to determine whether such units or stations are

major sources.

To be consistent with the Federal regulations, this sentence must

be read as only being applicable to a determination of whether a source

is major under section 112 of the Act. This language cannot be applied

when determining whether a source is major under other sections of the

Act.

With these interpretations, EPA believes the definitions in ARSD

74:36:01 are consistent with the corresponding Federal regulations. EPA

is approving all of the definitions in ARSD 74:36:01, with the

exception of two definitions related to the State's acid rain program

which EPA will be acting on separately: ``acid rain permit'' and ``acid

rain program'' in ARSD 74:36:01:01(2) and (3).

b. ARSD 74:36:02 Ambient Air Quality

This chapter was revised to refer to the Federal regulations for

the National Ambient Air Quality Standards (NAAQS), methods of sampling

and analysis, air quality monitoring networks, and ambient air

monitoring in 40 CFR parts 50, 53, and 58. The State's regulation is

consistent with the relevant Federal requirements and is approvable.

c. ARSD 74:36:03 Air Quality Episodes

This chapter was revised to refer to the Federal guidelines for

emergency episode plans in 40 CFR 51.151-153 and appendix L. The

State's regulation is consistent with the relevant Federal requirements

and is approvable.

d. ARSD 74:36:04 Operating Permits for Minor Sources

This chapter was revised extensively to combine the State's

existing minor source construction permit and FESOP requirements into

one permitting system and to ensure compliance with the Federal

requirements for both construction permit programs and FESOP programs.

This chapter only applies to sources which are not considered to be 40

CFR part 70 sources (i.e., sources which are not required to obtain a

title V operating permit). (Note that the State's construction

permitting program for new and modified major sources is the State's

PSD permitting program in ARSD 74:36:09.) Specifically, a new source in

South Dakota must obtain an operating permit prior to construction, and

an existing source must obtain a permit in order to operate the source.

Such operating permits will be valid for five years and must be

renewed.

(1) Construction Permit Program.

The minor source construction permit element of the State's

permitting program must meet the corresponding Federal requirements in

40 CFR 51.160-164, in order to be approved by EPA. As detailed in the

Technical Support Document (TSD) accompanying this notice, EPA believes

the State's construction permit requirements meet all of the

corresponding Federal requirements in 40 CFR 51.160-164.

(2) FESOP Program.

On June 28, 1989, EPA published criteria for approving and

incorporating into the SIP regulatory programs for the issuance of

FESOPs (see 54 FR 27282). Permits issued pursuant to an operating

permit program approved into the SIP as meeting these criteria may be

considered federally enforceable. The EPA has encouraged States to

develop such FESOP programs in conjunction with title V operating

permit programs to enable sources to limit their potential to emit to

below the title V applicability thresholds. (See the September 18, 1992

guidance document entitled, ``Limitation of Potential to Emit with

Respect to Title V Applicability Thresholds,'' from John Calcagni,

Director, Air Quality Management Division, Office of Air Quality

Planning and Standards (OAQPS), Office of Air and Radiation, U.S. EPA.)

In addition, on November 3, 1993, EPA announced in a guidance document

entitled, ``Approaches to Creating Federally Enforceable Emissions

Limits,'' from John S. Seitz, Director, OAQPS, that this mechanism

could be extended to create federally enforceable limits for emissions

of HAPs if the program were approved pursuant to section 112(l) of the

Act. (See Section III. below for further details on EPA's section

112(l) approval of South Dakota's FESOP program.)

As detailed in the TSD, EPA has reviewed the State's permitting

program for conformity with the FESOP criteria outlined in the June 28,

1989 Federal Register notice and believes the State's program

adequately meets those requirements, although one clarification

regarding their rules needs to be made:

South Dakota's rules do not specifically provide for submittal of

each proposed and final permit to EPA on a timely basis. However, EPA

has established procedures in the annual State-EPA agreement requiring

the State to submit to EPA proposed and final permits which would limit

the potential to emit of a source so that it would not be considered

major. EPA reiterates that requirement in this document. That is, for

any operating permit issued by the State to be considered federally

enforceable, the State must submit the proposed and final permit to EPA

in a timely manner, as well as meet all of the other requirements of

its program and the June 28, 1989 Federal Register.

Thus, EPA is approving South Dakota's construction permit/FESOP

program because it adequately meets the requirements of the June 28,

1989 Federal Register and 40 CFR 51.160-164. Permits issued by the

State that conform to the State's rules and corresponding Federal

requirements will be considered federally enforceable. See the TSD

accompanying this document for further details.

e. ARSD 74:36:06 Regulated Air Pollutants

In this chapter, the State combined its Control of Particulate

Emissions regulation previously codified in ARSD 74:26:06 and its

Control of Sulfur Compound Emissions regulation previously codified in

ARSD 74:26:07 into one chapter. The State made minor revisions to

simplify its particulate matter emission regulations, which EPA

believes are consistent with the Act and approvable.

In addition, the State made revisions to its regulations

controlling SO2 emissions in this chapter, as a result of EPA's

nationwide effort to have SO2 enforceability deficiencies

identified

[[Page 46225]]

and corrected in SIPs before title V operating permit programs become

effective. Because the title V operating permits will initially

incorporate underlying SIP requirements, it is important that the

underlying SIP is enforceable so that the permits themselves will be

enforceable. Thus, on March 8, 1991, EPA provided a list of

enforceability deficiencies in South Dakota's SO2 emission control

rules. The Region used the ``SO2 SIP Enforceability Checklist''

when reviewing South Dakota's SO2 rules for enforceability

deficiencies. This checklist was included as an attachment to the

November 28, 1990 memorandum from Robert Bauman and Rich Biondi to the

Air Branch Chiefs, and it focused on the following topics:

(1) Clarity;

(2) Averaging times consistent with protection of the SO2

NAAQS;

(3) Clear compliance determinations;

(4) Continuous emission monitoring;

(5) Adequate reporting and recordkeeping requirements;

(6) Director's discretion issues; and

(7) Stack height issues.

The State of South Dakota subsequently adopted revisions to address

the deficiencies outlined in EPA's March 8, 1991 letter. Those

revisions include: clarifying the applicability of this chapter to

include units required to be permitted under article 74:36; specifying

a 3-hour rolling averaging time, consistent with the SO2 NAAQS,

for the SO2 emission limitations of this chapter; and referring to

test methods listed in chapter 74:36:11 and including appropriate

reference methods in that chapter. Recordkeeping and reporting

requirements are addressed through the operating permit rules in ARSD

74:36:05:16.

EPA believes the State has adequately addressed the SO2

deficiencies identified in EPA's March 8, 1991 letter. Therefore, EPA

is approving the State's SO2 regulations.

f. ARSD 74:36:07 New Source Performance Standards

In this chapter, the State has adopted new NSPS by incorporating by

reference the Federal NSPS for subparts Dc, QQ, RR, VV, XX, AAA, JJJ,

NNN, and SSS of 40 CFR part 60, as in effect on July 1, 1993. Also, the

State updated the incorporation by reference citations of its existing

NSPS to reflect the July 1, 1993 version of 40 CFR part 60. In

addition, the State added a provision clarifying that the term

``administrator,'' as used in the Federal regulations incorporated into

the State's regulations, means the State except for those authorities

which cannot be delegated to the State, in which case ``administrator''

means both EPA and the State. Since this chapter incorporates by

reference the Federal NSPS in 40 CFR part 60, it is consistent with

Federal requirements and approvable.

g. ARSD 74:36:10 New Source Review

In this chapter, the State adopted provisions for new and modified

major stationary sources proposing to locate in attainment/unclassified

areas but which cause or contribute to a violation of the NAAQS, in

accordance with the requirements in 40 CFR 51.165(b). The State

currently has no areas designated nonattainment for the NAAQS, so the

State is currently not required to adopt nonattainment NSR provisions.

EPA has reviewed the provisions in this chapter against the

corresponding Federal requirements in 40 CFR 51.165 and found it to be

consistent and therefore approvable.

h. ARSD 74:36:11 Stack Performance Testing

This chapter was revised to refer to the Federal test methods in 40

CFR part 51, appendix M, and 40 CFR part 60 as the test methods

required to be used by sources and to make other minor revisions. EPA

has reviewed the revisions to this chapter and has found they are

consistent with the corresponding Federal requirements and approvable.

i. ARSD 74:36:12 Control of Visible Emissions

Minor revisions were made to this chapter, mainly to update the

incorporation by reference of 40 CFR part 60, appendix A to reflect the

July 1, 1993 version. EPA has reviewed the revisions to this chapter

and has found they are consistent with the corresponding Federal

requirements.

j. ARSD 74:36:13 Continuous Emission Monitoring Systems

(1) Continuous Emission Monitoring Requirements.

This new chapter was added to authorize the State to require major

sources to install continuous emission monitors (CEMs) and to require

that such CEMs meet the Federal performance specifications in 40 CFR

part 60. EPA has reviewed these requirements adopted in ARSD

74:36:13:01-05 and has found these rules to be consistent with the

corresponding Federal requirements and approvable.

(2) Enhanced Monitoring and Compliance Certification.

This regulation also address EPA's nationwide SIP call regarding

the new enhanced monitoring and compliance certification requirements

of the amended Act. On October 22, 1993, EPA announced in the Federal

Register that SIP calls pursuant to section 110(k)(5) of the Act would

be issued in order to implement the enhanced monitoring requirements of

section 114(a)(3) of the Act and the periodic monitoring requirements

for operating permits under sections 502(b)(2) and 504 of the Act (see

58 FR 54677). This SIP call is required because existing SIPs are

inadequate in that they may be interpreted to limit the types of

testing or monitoring data that may be used for determining compliance

and establishing violations.

On July 7, 1994, the EPA notified the Governor of South Dakota that

a SIP revision was necessary to meet the aforementioned requirements of

the Act. EPA's letter provided the States with two options for

regulatory language that, if adopted by the State and submitted to EPA

for approval in the SIP, would satisfy the requirements of this SIP

call. In Sections 74:36:13:06-07 of the ARSD, the State has adopted

provisions which are essentially identical to the regulatory language

provided in option 2 of the attachment to EPA's July 7, 1994 letter, as

follows:

(a) In ARSD 74:36:13:06, the State has added a provision stating

that, when submitting compliance certifications, an owner or operator

of a source may use monitoring as required under 40 CFR 70.6(a)(3) in

addition to any specified compliance methods. The practical effect of

this provision is that the SIP is now more flexible and inclusive and

does not preclude the use of enhanced monitoring.

(b) In ARSD 74:36:13:07, the State has added provisions stating

that any credible evidence may be used to determine if a violation has

occurred at a source. The rule provides that information from

monitoring methods approved in a federally enforceable operating permit

or in the SIP, as well as from any other federally enforceable

monitoring and testing methods (including those in 40 CFR Parts 51, 60,

61, and 75), may be used by the State as credible evidence to determine

compliance.

EPA believes the State has adequately satisfied the requirements of

that SIP call letter and, therefore, is approving Sections 74:36:13:06-

07 regarding enhanced monitoring and compliance certifications.

[[Page 46226]]

k. ARSD 74:36:15 Open Burning

The State made revisions to this chapter by further detailing those

items that could not be disposed of by open burning, and by providing

ability for small municipalities to burn solid wastes. Other minor

revisions were also made. EPA has reviewed the revisions and believes

they are consistent with the requirements of the Act and approvable.

III. Approval of South Dakota's Construction and Operating Permit

Program Under Section 112(l) of the Act.

In this action, EPA is also approving South Dakota's combined

construction/FESOP permit program in ARSD 74:36:04 under section 112(l)

of the Act for the purpose of creating federally enforceable limits on

the potential to emit of HAPs listed pursuant to section 112(b) of the

Act. Approval under section 112(l) is necessary to allow the State to

create federally enforceable limits on the potential to emit of HAPs,

because SIP approval of this permitting program only extends to the

control of HAPs which are photochemically reactive organic compounds or

particulate matter. Federally enforceable limits on photochemically

reactive organic compounds or particulate matter may have the

incidental effect of limiting certain HAPs.1 As a legal matter, no

additional program approval by EPA is required in order for these

``criteria'' pollutant limits to be recognized as federally

enforceable. However, section 112 of the Act provides the underlying

authority for controlling all HAP emissions.

\1\ EPA issued guidance addressing the technical aspects of how

these criteria pollutant limits may be recognized for purposes of

limiting a source's potential to emit of HAPs to below section 112

major source levels. Please refer to the January 25, 1995 EPA policy

from John Seitz and Robert Van Heuvelen entitled ``Options for

Limiting the Potential to Emit of a Stationary Source under Section

110 and Title V of the Clean Air Act,'' available at the EPA office

listed at the beginning of this document.

As discussed above and in the TSD, the criteria which are used in

approving minor source construction permit programs are located in 40

CFR 51.160-164. EPA believes the most significant criteria in 40 CFR

part 51 for creating federally enforceable limits through construction

permits are those in 40 CFR 51.160-162. Further, as discussed in EPA's

January 25, 1995 memorandum from John S. Seitz, Director of the Office

of Air Quality Planning and Standards, and Robert I. Van Heuvelen,

Director of the Office of Regulatory Enforcement, entitled ``Options

for Limiting the Potential to Emit of a Stationary Source Under Section

112 and Title V of the Clean Air Act,'' in order for EPA to consider

any construction permit terms federally enforceable, such permit

conditions must be enforceable as a practical matter. South Dakota's

permitting program will allow the State to issue permits that are

enforceable as a practical matter. Thus, any permits issued in

accordance with South Dakota's construction permit program and which

are practically enforceable would be considered federally enforceable.

EPA believes that the five approval criteria for approving FESOP

programs into the SIP, as specified in the June 28, 1989 Federal

Register notice, are also appropriate for evaluating and approving such

programs under section 112(l). The requirements outlined in the June

28, 1989 notice need not be unique to criteria pollutants since the

reason that the notice does not address HAPs is simply that it was

written prior to the 1990 Amendments to section 112.

In addition to meeting the criteria in 40 CFR 51.160-164 for

construction permits and the criteria in the June 28, 1989 Federal

Register notice for FESOPs, a permitting program that addresses HAPs

must meet the statutory criteria for approval under section 112(l)(5).

Section 112(l) allows EPA to approve a program only if it: (1) Contains

adequate authority to assure compliance with any section 112 standards

or requirements; (2) provides for adequate resources; (3) provides for

an expeditious schedule for assuring compliance with section 112

requirements; and (4) is otherwise likely to satisfy the objectives of

the Act.

EPA plans to codify the approval criteria for programs limiting

potential to emit of HAPs through amendments to subpart E of 40 CFR

part 63, the regulations promulgated to implement section 112(l) of the

Act. (See 58 FR 62262, November 26, 1993.) EPA believes it has the

authority under section 112(l) to approve programs to limit the

potential to emit of HAPs directly under section 112(l) prior to this

revision to subpart E of 40 CFR part 63. Given the timing problems

posed by impending deadlines under section 112 and title V, EPA

believes it is reasonable to read section 112(l) to allow for approval

of programs to limit potential to emit prior to promulgation of a rule

specifically addressing this issue. EPA is therefore approving South

Dakota's combined construction permit/FESOP program now so that South

Dakota may begin to issue federally enforceable synthetic minor permits

as soon as possible. EPA also plans to codify programs approved under

section 112(l) without further rulemaking once the revisions to subpart

E are promulgated.

As discussed in Section II.A.2.d. above and in the TSD, EPA

believes South Dakota's combined construction permit/FESOP program

meets the applicable Federal criteria for approval of such programs in

the SIP. In addition, South Dakota's construction and operating permit

program meets the statutory criteria for approval under section

112(l)(5), as follows:

Regarding the statutory criteria of section 112(l)(5), EPA believes

South Dakota's permitting program contains adequate authority to assure

compliance with section 112 requirements since the third criterion of

the June 28, 1989 notice is met, i.e., since the State's program does

not provide for waiving any section 112 requirement. Sources that

become minor through a permit issued pursuant to these programs would

still be required to meet section 112 requirements applicable to non-

major sources.

Regarding the requirement for adequate resources, the State has

committed to provide for adequate resources to implement and enforce

the program. EPA will monitor the State's implementation of the program

to assure that adequate resources continue to be available.

EPA also believes that South Dakota's construction and operating

permit program provides for an expeditious schedule for assuring

compliance with section 112 requirements. This program will be used to

allow a source to establish a voluntary limit on potential to emit so

as to avoid being subject to a Federal requirement applicable on a

particular date. Nothing in the State's program would allow a source to

avoid or delay compliance with the Federal requirement if it fails to

obtain the appropriate federally enforceable limit by the relevant

deadline.

Finally, EPA believes it is consistent with the intent of the

section 112 and the Act for States to provide a mechanism through which

sources may avoid classification as a major source by obtaining a

federally enforceable limit on potential to emit.

Accordingly, EPA finds that South Dakota's construction permit/

FESOP program satisfies the applicable criteria for establishing

federally enforceable limitations on potential to emit both criteria

and hazardous air pollutants. Thus, EPA is approving South Dakota's

construction permit/FESOP program in ARSD 74:36:04 under section 112(l)

of the Act.

[[Page 46227]]

IV. Final Action

EPA is approving the revisions to the South Dakota SIP which were

submitted by the State on March 7, 1995 and on November 12, 1993.

Specifically, EPA is replacing the existing State regulations approved

in the SIP with the following chapters of the ARSD, effective on

January 5, 1995: 74:36:01-74:36:04, 74:36:06; 74:36:07, 74:36:10-

74:36:13, and 74:36:15. However, EPA is not taking action at this time

on two definitions in ARSD 74:36:01 related to the State's acid rain

program which EPA will be acting on separately: ``acid rain permit''

and ``acid rain program'' in ARSD 74:36:01:01(2) and (3).

In addition to approving South Dakota's construction permit/FESOP

program in ARSD 74:36:04 as part of the SIP, EPA is also approving this

program under section 112(l) of the Act for the purposes of creating

federally enforceable permit conditions on HAPs. Note that in order for

EPA to consider operating permits issued under ARSD 74:36:04 to be

federally enforceable, the State must submit the proposed and final

permits to EPA in a timely manner, as well as meet the other

requirements of its program and the June 28, 1989 Federal Register.

This approval provides the State with the authority for

implementation and enforcement of the following subparts of 40 CFR part

60: A, D, Da, Db, Dc, E, Ea, F, I, K, Ka, Kb, O, Y, DD, GG, HH, LL, QQ,

RR, VV, XX, AAA, JJJ, NNN, OOO, and SSS, effective July 1, 1993.

However, the State's NSPS authorities do not include those authorities

which cannot be delegated to the states, as defined in 40 CFR part 60.

EPA is publishing this action without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to approve the SIP revision

should adverse or critical comments be filed. Under the procedures

established in the May 10, 1994 Federal Register (59 FR 24054), this

action will be effective November 6, 1995 unless, by October 6, 1995,

adverse or critical comments are received.

If such comments are received, this action will be withdrawn before

the effective date by publishing a subsequent document that will

withdraw the final action. All public comments received will then be

addressed in a subsequent final rule based on this action serving as a

proposed rule. EPA will not institute a second comment period on this

action. Any parties interested in commenting on this action should do

so at this time. If no such comments are received, the public is

advised that this action will be effective on November 6, 1995.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to a SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600, et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant economic impact on a substantial number of small entities.

Small entities include small businesses, small not-for-profit

enterprises, and government entities with jurisdiction over populations

of less than 50,000.

Approvals of SIP submittals under section 110 and subchapter I,

part D of the Clean Air Act do not create any new requirements, but

simply approve requirements that the State is already imposing.

Therefore, because the Federal SIP-approval does not impose any new

requirements, I certify that it does not have a significant impact on

small entities affected. Moreover, due to the nature of the Federal-

state relationship under the Clean Air Act, preparation of a regulatory

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of state action. The Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.

E.P.A., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).

Under Sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

Through submission of this state implementation plan or plan

revision, the State and any affected local or tribal governments have

elected to adopt the program provided for under Section 110 of the

Clean Air Act. These rules may bind State, local and tribal governments

to perform certain actions and also require the private sector to

perform certain duties. The rules being approved by this action will

impose no new requirements; such sources are already subject to these

regulations under State law. Accordingly, no additional costs to State,

local, or tribal governments, or to the private sector, result from

this action. EPA has also determined that this final action does not

include a mandate that may result in estimated costs of $100 million or

more to State, local, or tribal governments in the aggregate or to the

private sector.

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 6, 1995. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review must 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)).

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Particulate matter, Reporting and recordkeeping

requirements, Volatile organic compounds.

Dated: August 10, 1995.

Jack W. McGraw,

Acting Regional Administrator.

Chapter I, title 40 of the Code of Federal Regulations is amended

as follows:

PART 52--[AMENDED]

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

Authority: 42 U.S.C. 7401-7671q.

Subpart QQ--South Dakota

2. Section 52.2170 is amended by adding paragraph (c)(16) to read

as follows:

Sec. 52.2170 Identification of plan.

* * * * *

(c) * * *

[[Page 46228]]

(16) On November 12, 1993 and March 7, 1995, the designee of the

Governor of South Dakota submitted revisions to the plan, which

included revised regulations for definitions, minor source construction

and federally enforceable state operating permit (FESOP) rules, source

category emission limitations, sulfur dioxide rule corrections, new

source performance standards (NSPS), new source review (NSR)

requirements for new and modified major sources impacting nonattainment

areas, and enhanced monitoring and compliance certification

requirements. The State also requested that the existing State

regulations approved in the South Dakota SIP be replaced with the

following chapters of the recently recodified Administrative Rules of

South Dakota (ARSD): 74:36:01-74:36:04, 74:36:06; 74:36:07, 74:36:10-

74:36:13, and 74:36:15, as in effect on January 5, 1995.

(i) Incorporation by reference.

(A) Revisions to the Administrative Rules of South Dakota, Air

Pollution Control Program, Chapters 74:36:01 (except 74:36:01:01(2) and

(3)); 74:36:02-74:36:04, 74:36:06; 74:36:07, 74:36:10-74:36:13, and

74:36:15, effective April 22, 1993 and January 5, 1995.

3. A new section 52.2184 is added to read as follows:

Sec. 52.2184 Operating permits for minor sources.

Emission limitations and related provisions established in South

Dakota minor source operating permits, which are issued in accordance

with ARSD 74:36:04 and which are submitted to EPA in a timely manner in

both proposed and final form, shall be enforceable by EPA. EPA reserves

the right to deem permit conditions not federally enforceable. Such a

determination will be made according to appropriate procedures and will

be based upon the permit, permit approval procedures, or permit

requirements which do not conform with the operating permit program

requirements of EPA's underlying regulations.

[FR Doc. 95-21879 Filed 9-5-95; 8:45 am]

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