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

[SD-001-0002a; FRL-6175-4]

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 is approving certain State implementation plan (SIP)

revisions submitted by the designee of the Governor of South Dakota on

May 2, 1997. The May 2, 1997 submittal included revisions to the

Administrative Rules of South Dakota (ARSD) pertaining to the State's

regulatory definitions, minor source operating permit regulations, open

burning rules, stack testing rules, and new source performance

standards (NSPS). This document pertains to the entire State SIP

submittal with the exception of the revisions to the NSPS regulations

and the new State provision regarding pretesting of new fuels or raw

materials: EPA will act on those two regulations separately. EPA has

found the remaining rule revisions to be consistent with the Clean Air

Act (Act) and corresponding Federal regulations. Therefore, pursuant to

section 110 of the Act, EPA is approving the SIP revisions discussed

above.

DATES: This direct final rule is effective on December 18, 1998 without

further notice, unless EPA receives adverse comment by November 18,

1998. If adverse comment is received, EPA will publish a timely

withdrawal of the direct final rule in the Federal Register and inform

the public that the rule will not take effect.

ADDRESSES: Written comments may be mailed to Richard R. Long, 8P-AR, at

the EPA Region VIII Office listed. Copies of the documents relative to

this action are available for inspection during normal business hours

at the Air and Radiation Program, Environmental Protection Agency,

Region VIII, Mailcode 8P-AR, 999 18th Street, Suite 500, Denver,

Colorado 80202-2466; and the Air and Radiation Docket and Information

Center, Environmental Protection Agency, 401 M Street, SW, Washington,

D.C. 20460. Copies of the State documents relevant to this action are

available for public inspection at the Air Quality Program, Department

of Environment and Natural Resources, Joe Foss Building, 523 East

Capitol, Pierre, South Dakota 57501.

FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA Region VIII, (303)

312-6445.

SUPPLEMENTARY INFORMATION:

I. Background

On May 2, 1997, the designee of the Governor of South Dakota

submitted, among other things, revisions to the SIP. Specifically, the

State submitted revisions to the following chapters in the ARSD:

74:36:01 Definitions, 74:36:04 Operating Permits for Minor Sources,

74:36:06 Regulated Air Pollutant Emissions, 74:36:07 New Source

Performance Standards, 74:36:11 Stack Performance Testing, and 74:36:15

Open Burning. This document evaluates the State's submittal for

conformance with the Act and corresponding Federal regulations.

However, EPA is not, at this time, acting on the revisions to the NSPS

regulations in ARSD 74:36:07 or the new provision regarding pretesting

of new fuels or raw materials in ARSD 74:36:11:04. EPA will be acting

on these two regulations in a separate action.

The State's May 2, 1997 submittal also included the State's section

111(d) plan for existing municipal solid waste (MSW) landfills and

minor revisions to its title V operating permit program, which will

also be acted on separately.

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)(1)(B) if a completeness

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

submission.

The State of South Dakota held a public hearing on November 20,

1996 on the revisions to the ARSD, at which time the rule revisions

were adopted by the State. The revised rules became effective on

December 29, 1996. These rule revisions were formally submitted to EPA

for approval on May 2, 1997. EPA did not issue a completeness or an

incompleteness finding for this revision to the SIP. Thus, pursuant to

section 110(k)(1)(B), the submittal was deemed complete by operation of

law on November 12, 1997.

2. Evaluation of State's Submittal

The following summarizes the State's SIP revisions made to the ARSD

and EPA's review of those revisions for approvability:

a. ARSD 74:36:01 Definitions. In ARSD 74:36:01:01(79), the State

updated its definition of ``VOCs'' to reflect changes made to the

Federal definition of VOCs in 40 CFR 51.100(s) on October 8, 1996 (61

FR 52850). However, EPA has revised its definition of VOCs twice since

October 8, 1996. Specifically, on August 25, 1997, EPA added sixteen

compounds to the list of negligibly reactive VOCs in 40 CFR

51.100(s)(1) (see 62 FR 44900). In addition, on April 9, 1998, EPA

added an additional compound to the list of

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negligibly reactive VOCs in 40 CFR 51.100(s)(1) (see 63 FR 17333). EPA

has informed the State of these revisions and has requested that future

SIP revisions reflect the most recent Federal VOC definition. The

State's definition of VOCs, by not excluding the above listed compounds

from the definition of VOC, is considered to be more stringent than

EPA's definition, which is acceptable.

In ARSD 74:36:01:18 and 74:36:01:19, the State adopted definitions

of ``MSW landfill'' and ``existing MSW landfill,'' respectively. EPA

has reviewed those definitions and found the State's definitions to be

consistent with the corresponding Federal definitions in 40 CFR part

60, subpart Cc.

Thus, EPA finds the State's revision to ARSD 74:36:01:01 to be

consistent with the corresponding Federal regulations and, therefore,

approvable.

b. ARSD 74:36:04 Operating Permits for Minor Sources. In ARSD

74:36:04:03, the State revised its list of exemptions from the minor

source operating permit requirements to: (1) clarify that a source is

not exempt from the minor source operating permit requirements if the

source has requested Federally enforceable permit conditions to prevent

that source from needing a title V operating permit or a prevention of

significant deterioration (PSD) permit; (2) clarify that sources exempt

from the minor source operating permit requirements are still required

to meet the visible emissions requirements in ARSD 74:36:12:01; and (3)

revise the exemption for emergency electrical generators to clarify

that the exemption applies to emergency electrical generators fueled by

all petroleum products (the State's rule previously only applied to

diesel-fueled emergency electrical generators). EPA believes the first

two clarifications mentioned above strengthen the existing regulation

and are necessary clarifications. In addition, EPA sees no

approvability issues with the revised exemption for emergency

electrical generators in ARSD 74:36:04:03(7). If an emergency

electrical generator is considered to be a major source based on its

potential to emit, South Dakota's regulations would require the source

either to obtain a construction/title V operating permit under the

State's combined construction/title V operating permit regulations in

ARSD 74:36:05 or to obtain permit conditions to prevent the source from

needing a title V operating permit as discussed in ARSD 74:36:04:03. In

addition, the State's new provision in ARSD 74:36:04:03 discussed

above, which clarifies that exempted sources are still required to meet

the visible emissions standard (i.e., 20% opacity limit), ensures that

the emergency electrical generators will be operated adequately to

minimize emissions.

The State also repealed its provisions for general minor source

operating permits in ARSD 74:36:04:25-26 because of changes in State

legislation that provide the State with broad authority to issue

general permits under the existing minor source operating permit

requirements as well as the title V operating permit program. In

addition, the State repealed ARSD 74:36:04:30 regarding the requirement

to perform a stack performance test, as this was already required in

ARSD 74:36:06:06. These revisions are considered minor in nature and

are consistent with the corresponding Federal requirements.

Therefore, because the revisions to ARSD 74:36:04 are consistent

with the Act and corresponding regulations and guidance, EPA finds the

revisions to be approvable.

c. ARSD 74:36:06 Regulated Air Pollutant Emissions and Repeal of

ARSD 74:36:15. The State repealed the open burning provisions of ARSD

74:36:15 and transferred ARSD 74:36:15:01, which contained the list of

materials that cannot be open-burned because of the excessive and

potentially dangerous pollutants that can be generated from these

materials, to ARSD 74:36:06:07. The State also added a statement to

ARSD 74:36:06:07 clarifying that all open burning needed to be

conducted in accordance with local and State ordinances, laws, and

rules. The intent of these revisions was to consolidate similar rules

into ARSD 74:36:06, as well as to clarify that other State agencies

(i.e., the waste management program) and local governments are the

primary authority for approving open burning. Because the State

retained the list of items which could not be disposed of by open

burning, EPA believes the transfer of open burning approval authority

from the State Air Quality Program to other State agencies and local

governments is acceptable and will not result in any less stringent

application of the open burning requirements. Consequently, EPA is

approving the revisions to ARSD 74:36:06:07 and 74:36:06:15.

d. ARSD 74:36:11 Stack Performance Testing. The State revised the

title of this chapter and revised ARSD 74:36:11:01 to incorporate

Federal test methods for hazardous air pollutants. The State also made

minor wording and clarifying changes to ARSD 74:36:11:01-03. EPA has

reviewed the revisions to ARSD 74:36:11:01-03 and had found they are

consistent with the Act and corresponding Federal regulations.

III. Final Action

EPA is approving South Dakota's SIP revisions, as submitted by the

designee of the Governor with a letter dated May 2, 1997, with the

exception of the revisions to ARSD 74:36:07 (NSPS) and ARSD 74:36:11:04

(regarding pretesting of new fuels or raw materials). EPA will be

acting on ARSD 74:36:07 and 74:36:11:04 separately from this action.

The State's SIP submittal requested that EPA replace the previous

version of the ARSD approved into the SIP with the following chapters

of the ARSD as in effect on December 29, 1996: 74:36:01 through

74:36:03, 74:36:04 (with the exception of section 74:36:04:03.01),

74:36:06, 74:36:07, 74:36:10-13, and 74:36:17. In this approval, EPA is

specifically replacing all of the existing State regulations previously

approved into the SIP (except for the NSPS rules in ARSD 74:36:07) with

the following State regulations as in effect on December 29, 1996: ARSD

74:36:01-03, 74:36:04 (with the exception of section 74:36:04:03.01),

74:36:06, 74:36:10, 74:36:11 (with the exception of ARSD 74:36:11:04),

74:36:12, and 74:36:13. ARSD 74:36:07 (NSPS rules), as in effect on

January 5, 1995 and as approved by EPA at 40 CFR 52.2170(c)(16)(i)(A),

will remain part of the SIP until EPA acts on the revised ARSD 74:36:07

which will be done in a separate action. [Note that EPA is not

incorporating ARSD 74:36:17, which includes the Rapid City street

sanding and deicing provisions, into the approved SIP at this time

because EPA has not yet acted on the original January 22, 1996

submittal of ARSD 74:36:17. That chapter will be acted on separately in

the near future.]

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.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in the proposed rules section of this

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

adverse comments be filed. This rule will be effective December 18,

1998 without further notice unless the Agency receives adverse comments

by November 18, 1998.

[[Page 55806]]

If EPA receives such comments, then EPA will publish a timely

withdrawal of the final rule informing the public that the rule will

not take effect. All public comments received will then be addressed in

a subsequent final rule based on the proposed rule. EPA will not

institute a second comment period on this rule. Any parties interested

in commenting on this rule should do so at this time. If no such

comments are received, the public is advised that this rule will be

effective on December 18, 1998 and no further action will be taken on

the proposed rule.

IV. Administrative Requirements

A. Executive Order 12866 and 13045

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866, entitled ``Regulatory

Planning and Review,'' review.

The final rule is not subject to Executive Order 13045, entitled

``Protection of Children from Environmental Health Risks and Safety

Risks,'' because it is not an ``economically significant'' action under

Executive Order 12866.

B. Executive Order 12875

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a state, local,

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the OMB a

description of the extent of EPA's prior consultation with

representatives of affected state, local, and tribal governments, the

nature of their concerns, copies of written communications from the

governments, and a statement supporting the need to issue the

regulation. In addition, Executive Order 12875 requires EPA to develop

an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

C. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly affects or uniquely affects

the communities of Indian tribal governments, and that imposes

substantial direct compliance costs on those communities, unless the

Federal government provides the funds necessary to pay the direct

compliance costs incurred by the tribal governments. If the mandate is

unfunded, EPA must provide to the OMB, in a separately identified

section of the preamble to the rule, a description of the extent of

EPA's prior consultation with representatives of affected tribal

governments, a summary of the nature of their concerns, and a statement

supporting the need to issue the regulation. In addition,

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. Accordingly, the requirements

of section 3(b) of Executive Order 13084 do not apply to this rule.

D. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

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 small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals 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 a substantial number of small entities. Moreover,

due to the nature of the Federal-State relationship under the Clean Air

Act, preparation of a 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. EPA, 427 U.S. 246, 256-66 (1976); 42 U.S.C.

7410(a)(2).

E. 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 the approval action promulgated 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.

F. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. section 801 et seq., as

added by the Small Business Regulatory Enforcement Fairness Act of

1996, generally provides 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 Congress and to the Comptroller

General of the United States. EPA will submit a report containing this

rule and other required information to the U.S. Senate, the House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. This rule is not a

``major rule'' as defined by 5 U.S.C. section 804(2).

G. Audit Privilege and Immunity Law

Nothing in this action should be construed as making any

determination or expressing any position regarding South Dakota's audit

privilege and penalty immunity law (sections 1-40-33 through 1-40-37 of

Chapter 1-40 of the South Dakota Codified Laws, effective July 1, 1996)

or its impact upon any approved provision in the SIP,

[[Page 55807]]

including the revisions at issue here. The action taken herein does not

express or imply any viewpoint on the question of whether there are

legal deficiencies in this or any other Clean Air Act program resulting

from the effect of South Dakota's audit privilege and immunity law. A

State audit privilege and immunity law can affect only State

enforcement and cannot have any impact on Federal enforcement

authorities. EPA may at any time invoke its authority under the Clean

Air Act, including, for example, sections 113, 114, 167, 205, 211 or

213, to enforce the requirements or prohibitions of the SIP,

independently of any State enforcement effort. In addition, citizen

enforcement under section 304 of the Clean Air Act is likewise

unaffected by a State audit privilege or immunity law.

H. Petitions for Judicial Review

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 December 18, 1998. 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 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, Particulate matter, Reporting

and recordkeeping requirements, Sulfur oxides, Volatile organic

compounds.

Dated: September 29, 1998.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

Part 52, 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 et seq.

Subpart QQ--South Dakota

2. Section 52.2170 is amended by adding paragraph (c)(17) to read

as follows:

Sec. 52.2170 Identification of plan.

* * * * *

(c) * * *

(17) On May 2, 1997, the designee of the Governor of South Dakota

submitted revisions to the plan. The revisions pertain to revised

regulations for definitions, minor source operating permits, open

burning, and performance testing. The State's SIP submittal requested

that EPA replace the previous version of the ARSD approved into the SIP

with the following chapters of the ARSD as in effect on December 29,

1996: 74:36:01 through 74:36:03, 74:36:04 (with the exception of

section 74:36:04:03.01), 74:36:06, 74:36:07, 74:36:10-13, and 74:36:17.

EPA is replacing all of the previously approved State regulations,

except the NSPS rules in ARSD 74:36:07, with those regulations listed

in paragraph (c)(17)(i)(A). ARSD 74:36:07, as in effect on January 5,

1995 and as approved by EPA at 40 CFR 52.2170(c)(16)(i)(A), will remain

part of the SIP. [Note that EPA is not incorporating the revised ARSD

74:36:07, new ARSD 74:36:11:04, or new ARSD 74:36:17 in this action, as

these chapters will be acted on separately by EPA.]

(i) Incorporation by reference.

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

Pollution Control Program, Chapters 74:36:01-03; 74:36:04 (except

section 74:36:04:03.1); 74:36:06; 74:36:10, 74:36:11 (with the

exception of ARSD 74:36:11:04), 74:36:12, and 74:36:13, effective

December 29, 1996.

[FR Doc. 98-27838 Filed 10-16-98; 8:45 am]

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