Clean Air Act Proposed Full Approval of Operating Permits Program; State of South Dakota

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[SD-001; FRL-5300-8]

Clean Air Act Proposed Full Approval of Operating Permits

Program; State of South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed full approval.

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SUMMARY: The EPA proposes to change the existing interim approval of

the Operating Permits Program submitted by the State of South Dakota to

a full approval for the purpose of complying with Federal requirements

for an approvable State program to issue operating permits to all major

stationary sources, and to certain other sources.

DATES: Comments on this proposed action must be received in writing by

October 23, 1995.

ADDRESSES: Comments should be addressed to the contact indicated below.

Copies of the State's submittal and other supporting information used

in developing this proposed approval are available for inspection

during normal business hours at the following location: U.S.

Environmental Protection Agency, Region 8, 999 18th Street, suite 500,

Denver, Colorado 80202.

FOR FURTHER INFORMATION CONTACT: Laura Farris, 8ART-AP, U.S.

Environmental Protection Agency, Region 8, Air Programs Branch, 999

18th Street, suite 500, Denver, Colorado 80202, (303) 294-7539.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

As required under title V of the 1990 Clean Air Act Amendments

(sections 501-507 of the Clean Air Act (``the Act'')), EPA has

promulgated rules which define the minimum elements of an approvable

State operating permits program and the corresponding standards and

procedures by which the EPA will approve, oversee, and withdraw

approval of State operating permits programs (see 57 FR 32250 (July 21,

1992)). These rules are codified at 40 Code of Federal Regulations

(CFR) part 70 (part 70). Title V requires States to develop, and submit

to EPA, programs for issuing these operating permits to all major

stationary sources and to certain other sources.

The Act requires that states develop and submit these programs to

EPA by November 15, 1993, and that EPA act to

[[Page 48943]]

approve or disapprove each program within 1 year after receiving the

submittal. The EPA's program review occurs pursuant to section 502 of

the Act and the part 70 regulations, which together outline criteria

for approval or disapproval. Where a program substantially, but not

fully, meets the requirements of part 70, EPA may grant the program

interim approval for a period of up to 2 years. If EPA has not fully

approved a program by 2 years after the November 15, 1993 date, or by

the end of an interim program, it must establish and implement a

Federal program.

II. Proposed Action and Implications

A. Analysis of State Submission

The Governor of South Dakota's designee, Robert E. Roberts,

Secretary of the Department of Environment and Natural Resources,

submitted the State of South Dakota Title V Operating Permit Program

(PROGRAM) to EPA on November 12, 1993. On March 22, 1995, EPA published

a Federal Register notice promulgating final interim approval of the

South Dakota PROGRAM. See 60 FR 15066. Full approval of the South

Dakota PROGRAM was not possible at that time due to the following issue

identified during EPA's PROGRAM review: The State's criminal

enforcement statute only allowed for a maximum penalty of $1,000 for

failure to obtain a permit and $500 for violation of a permit

condition. The State was required to adopt legislation consistent with

part 70.11, prior to receiving full PROGRAM approval, to allow for a

maximum criminal fine of not less than $10,000 per day per violation

for knowing violation of operating permit requirements, including

making a false statement and tampering with a monitoring device. In a

letter dated April 21, 1995, the State submitted evidence that this

corrective action had been completed, which EPA has reviewed and has

determined to be adequate to allow for full PROGRAM approval. This

corrective action included the adoption of Senate Bill 36 by the South

Dakota Legislature which contains the necessary language to allow for

criminal penalties consistent with part 70.11.

Requirements for approval, specified in 40 CFR 70.4(b), encompass

section 112(l)(5) requirements for approval of a program for delegation

of the provisions of 40 CFR part 63, Subpart A, and section 112

standards promulgated by EPA. Section 112(l)(5) requires that the

State's program contain adequate authorities, adequate resources for

implementation, and an expeditious compliance schedule, which are also

requirements under part 70. EPA granted approval of the State's

PROGRAM, under section 112(l)(5) and 40 CFR part 63.91, for receiving

delegation of section 112 standards that are unchanged from the Federal

standards as promulgated for part 70 sources in the Federal Register

notice promulgating final interim approval of the South Dakota PROGRAM.

See 60 FR 15066. Based on a State request, EPA is proposing to expand

this approval to include non-part 70 sources. EPA believes this is

warranted because State law does not differentiate between part 70 and

non-part 70 sources for purposes of implementation and enforcement of

section 112 standards that the State adopts. This approval would not

delegate authority to the State to enforce specific section 112

standards, but instead would establish a basis for the State to request

and receive future delegation of authority to implement and enforce,

for non-part 70 sources, section 112 standards that the State adopts

without change.

The scope of the PROGRAM and all of the clarifications made in the

Federal Register notice proposing interim approval of the South Dakota

PROGRAM still apply. See 60 FR 2917.

B. Proposed Action

EPA is proposing to change the existing interim approval of the

operating permits program submitted to EPA by the State of South Dakota

on November 12, 1993 to a full approval. Among other things, South

Dakota has demonstrated that the PROGRAM will be adequate to meet the

minimum elements of a State operating permits program as specified in

40 CFR part 70. EPA is also proposing to expand approval of South

Dakota's PROGRAM for receiving delegation of section 112 standards to

include non-part 70 sources.

Today's proposal to give full approval to the State's part 70

PROGRAM does not extend to ``Indian Country,'' as defined in 18 U.S.C.

1151, including the following ``existing or former'' Indian

reservations in the State: 1. Cheyenne River; 2. Crow Creek; 3.

Flandreau; 4. Lower Brule; 5. Pine Ridge; 6. Rosebud; 7. Sisseton; 8.

Standing Rock; and 9. Yankton.

The State has asserted it has jurisdiction to enforce a part 70

PROGRAM within some or all of these ``existing or former'' Indian

reservations and has provided an analysis of such jurisdiction. EPA is

in the process of evaluating the State's analysis and will issue a

supplemental notice regarding this issue in the future. Before EPA

would approve the State's part 70 PROGRAM for any portion of ``Indian

Country,'' EPA would have to be satisfied that the State has authority,

either pursuant to explicit Congressional authorization or applicable

principles of Federal Indian law, to enforce its laws against existing

and potential pollution sources within any geographical area for which

it seeks program approval and that such approval would constitute sound

administrative practice. This is a complex and controversial issue, and

EPA does not wish to delay full approval of the State's part 70 PROGRAM

with respect to undisputed sources while EPA resolves this question.

In deferring final action on program approval for sources located

in ``Indian Country,'' EPA is not making a determination that the State

either has adequate jurisdiction or lacks such jurisdiction. Instead,

EPA is deferring judgment regarding this issue pending EPA's evaluation

of the State's analysis.

III. Administrative Requirements

A. Request for Public Comments

The EPA is requesting comments on all aspects of this proposed full

approval. Copies of the State's submittal and other information relied

upon for this proposed approval are contained in a docket maintained at

the EPA Regional Office. The docket is an organized and complete file

of all the information submitted to, or otherwise considered by, EPA in

the development of these proposed approvals. The principal purposes of

the docket are:

(1) to allow interested parties a means to identify and locate

documents so that they can effectively participate in the approval

process, and

(2) to serve as the record in case of judicial review. The EPA will

consider any comments received by October 23, 1995.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

EPA's actions under section 502 of the Act do not create any new

requirements, but simply address operating permits programs submitted

to satisfy the requirements of 40 CFR part 70. Because this action does

not impose any new requirements, it does not have a significant impact

on a substantial number of small entities.

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D. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(Unfunded Mandates Act), signed into law on March 22, 1995, EPA must

prepare a budgetary impact statement to accompany any proposed or final

rule that includes a Federal mandate that may result in estimated costs

to state, local, or tribal governments in the aggregate; or to the

private sector, of $100 million or more. Under section 205, EPA must

select the most cost-effective and least burdensome alternative that

achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that this proposed approval does not include a

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

more to either state, local, or tribal governments in the aggregate, or

to the private sector. This Federal action approves pre-existing

requirements under state or local law, and imposes no new Federal

requirements. Accordingly, no additional costs to state, local, or

tribal governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 70

Environmental protection, Administrative practice and procedure,

Air pollution control, Intergovernmental relations, Operating permits,

Reporting and recordkeeping requirements.

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

Dated: September 11, 1995.

Jack W. McGraw,

Acting Regional Administrator.

[FR Doc. 95-23437 Filed 9-20-95; 8:45 am]

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