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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[SD-001; FRL-5406-1]

Clean Air Act Final Full Approval of Operating Permits Program;

State of South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final full approval.

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SUMMARY: The EPA is promulgating final full approval of the Operating

Permits Program submitted by the State of South Dakota 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.

EFFECTIVE DATE: February 28, 1996.

ADDRESSES: Copies of the State's submittal and other supporting

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information used in developing the final full 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: Patricia Reisbeck, 8ART-AP, U.S.

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

Denver, Colorado 80202, (303) 312-6441.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

Title V of the 1990 Clean Air Act Amendments (sections 501-507 of

the Clean Air Act (``the Act'')), and implementing regulations at 40

Code of Federal Regulations (CFR) part 70 (part 70) require that States

develop and submit operating permits programs to EPA by November 15,

1993, and that EPA act to approve or disapprove each program within one

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 two years.

If EPA has not fully approved a program by two years after the November

15, 1993 date, or by the end of an interim program, it must establish

and implement a Federal program.

On September 21, 1995, EPA published a Federal Register notice

proposing full approval of the Operating Permits Program (PROGRAM) for

the State of South Dakota. See 60 FR 48942. EPA received one public

comment on the proposal, which is addressed below, and is taking final

action to promulgate full approval of the South Dakota PROGRAM.

II. Final 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 document 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

Sec. 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 Sec. 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 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

document promulgating final interim approval of the South Dakota

PROGRAM. See 60 FR 15066. Based on a State request, EPA is granting the

expansion of 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 does not delegate authority to the State to enforce specific

section 112 standards, but instead establishes 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 document proposing interim approval of the South

Dakota PROGRAM still apply. See 60 FR 2917.

B. Response to Comments

The comment received on the September 21, 1995 Federal Register

notice proposing full approval of the South Dakota PROGRAM, and EPA's

response to that comment, is as follows:

Comment: The commenter noted that EPA had indicated in its proposal

that approval of South Dakota's PROGRAM would not extend to any lands

within Indian Country. The commenter, apparently referring to South

Dakota's submission to EPA asserting jurisdiction to enforce a part 70

PROGRAM within Indian reservations, expressed ``opposition to South

Dakota's proposal, insofar as it claims authority over lands within the

boundaries of the Standing Rock Sioux Reservation.'' The commenter

asserted that South Dakota's jurisdictional arguments ignore the

express language of the Act and the territorial component of Tribal

sovereignty. The commenter cited various Supreme Court cases and

provisions of the Act. The commenter urged EPA to reject South Dakota's

effort to assert jurisdiction on Indian reservation lands.

EPA Response: The commenter correctly noted that EPA's proposal to

fully approve the State's part 70 PROGRAM does not extend to ``Indian

Country,'' as defined in 18 U.S.C. 1151. EPA does not believe the

commenter was making an adverse comment on this aspect of EPA's

proposed action, and this final action makes no changes to this aspect

of the proposal. As noted in the proposal and in this action, the State

has asserted it has jurisdiction to enforce a PROGRAM within Indian

reservations and has provided an analysis of such jurisdiction.

However, EPA is not acting on the State's analysis in this action.

Thus, EPA does not believe the commenter's objections to the State's

jurisdictional assertions are directly pertinent to this action and

will not respond to them here. The commenter may wish to re-submit such

comments at the time EPA proposes action on the State's jurisdictional

analysis.

C. Final Action

The EPA is promulgating full approval of the Operating Permits

Program submitted by the State of South Dakota on November 12, 1993.

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 approving the

expansion of South Dakota's PROGRAM for receiving

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delegation of section 112 standards to include non-part 70 sources.

The scope of South Dakota's PROGRAM that EPA is approving in this

notice 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 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 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 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. Docket

Copies of the State's submittal and other information relied upon

for the final full approval, including public comments received and

reviewed by EPA on the proposal, are maintained in a docket 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 this final full approval. The docket is available for

public inspection at the location listed under the ADDRESSES section of

this document.

B. Executive Order 12866

The Office of Management and Budget has exempted this action from

Executive Order 12866 review.

C. Regulatory Flexibility Act

The 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.

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.

Dated: December 14, 1995.

Jack W. McGraw,

Acting Regional Administrator.

Part 70, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 70--[AMENDED]

1. The authority citation for part 70 continues to read as follows:

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

2. Appendix A to part 70 is amended by adding the entry for South

Dakota in alphabetical order to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating

Permits Programs

* * * * *

South Dakota

(a) South Dakota Department of Environment and Natural

Resources--Division of Environmental Regulations: submitted on

November 12, 1993; effective on February 28, 1996.

(b) (reserved)

[FR Doc. 96-1545 Filed 1-26-96; 8:45 am]

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