Clean Air Act Approval and Promulgation of State Implementation Plan; South Dakota; New Source Performance Standards

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 60

[SD-001-0005 & SD-001-0006; FRL-6441-5]

Clean Air Act Approval and Promulgation of State Implementation

Plan; South Dakota; New Source Performance Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to approve revisions to the South Dakota State

Implementation Plan (SIP) which update the State's incorporation by

reference of the Federal New Source Performance Standards (NSPS). The

SIP revisions were submitted by the designee of the Governor of South

Dakota on May 2, 1997 and on May 6, 1999. The State adopted the Federal

NSPS by reference in subchapter

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74:36:07 of the Administrative Rules of South Dakota (ARSD). The State

also repealed a rule that required stack tests for asphalt batch

plants, other than the initial stack test required by the NSPS, to be

performed if certain conditions existed. EPA proposes to approve the

revisions to the ARSD 74:36:07 because the revisions are consistent

with Federal regulations.

This proposed approval action does not extend to sources in Indian

country. In this document, EPA proposes to clarify the interpretation

of Indian country in South Dakota.

DATES: Written comments must be received on or before October 21, 1999.

ADDRESSES: Written comments may be mailed to Richard R. Long, Director,

Air and Radiation Program, Mailcode 8P-AR, Environmental Protection

Agency (EPA), Region VIII, 999 18th Street, Suite 500, Denver,

Colorado, 80202. 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, 999

18th Street, Suite 500, Denver, Colorado 80202-2466. 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. What Action is EPA Proposing Today?

EPA proposes to approve two revisions to the South Dakota's NSPS

regulations in subchapter 74:36:07 of the ARSD, except for those

sources located in Indian country. These revisions were submitted for

approval as part of the SIP on May 2, 1997 and on May 6, 1999.

The State's May 2, 1997 and May 6, 1999 SIP submittals included

revisions to other subchapters of the ARSD. We acted on most of those

revisions submitted on May 2, 1997 in an October 19, 1998 rulemaking

(see 63 FR 55804-55807). In this document, we only propose to act on

the revisions to ARSD 74:36:07. We will act on the revisions to the

other subchapters of the ARSD included in these two submittals in

separate rulemakings.

II. What Changes Were Made to South Dakota's NSPS regulation?

In South Dakota's May 2, 1995 SIP submittal, the State adopted four

new NSPS categories in subchapter 74:36:07 of the ARSD. Specifically,

the State incorporated by reference the following subparts of the

Federal NSPS in 40 CFR part 60 as in effect on July 1, 1995 unless

otherwise stated: subpart Eb (pertaining to large municipal waste

combustors) as promulgated by EPA on December 19, 1995 (59 FR 65419-

65436); 40 CFR part 60, subpart RRR (pertaining to the synthetic

organic chemical manufacturing industry reactor processes); 40 CFR part

60, subpart UUU (pertaining to calciners and dryers in mineral

industries); and 40 CFR part 60, subpart WWW (pertaining to municipal

solid waste (MSW) landfills) as promulgated by EPA on March 12, 1996

(61 FR 9918-9929). The State also updated its existing NSPS to

incorporate by reference the July 1, 1995 version of the Federal NSPS.

In South Dakota's May 6, 1999 SIP submittal, the State adopted one

new NSPS subpart in subchapter 74:36:07 of the ARSD: 40 CFR part 60,

subpart Ec (pertaining to hospital/medical/infectious waste

incinerators) as promulgated by EPA on September 15, 1997 (62 FR 48383-

48390). The State also updated its incorporated by reference of 40 CFR

part 60, subpart Eb (pertaining to municipal waste combustors) to

reflect the version in effect as of July 1, 1997 and of 40 CFR part 60,

subpart WWW (pertaining to MSW landfills) to reflect the version in

effect as of July 1, 1997 as revised on June 16, 1998 (63 FR 32750-

32753). Last, the State repealed its additional provisions for asphalt

batch plants in section 74:36:07:11 of the ARSD. This section

previously required stack tests at asphalt batch plants, aside from the

initial stack test required by the NSPS, if certain conditions existed.

The State repealed this section because it was repetitive with recent

changes to the ARSD. The State still has the ability to require stack

performance tests at any time to determine compliance with emission

limits.

III. Why is EPA Proposing To Approve the South Dakota Revisions to

the NSPS?

EPA proposes to approve these revisions to South Dakota's NSPS in

ARSD 74:36:07 because the revisions ensure that the State's NSPS are up

to date with the Federal NSPS.

We also believe that the State met EPA's completeness criteria,

including the public participation requirements of sections 110(a)(2)

and 110(l) of the Clean Air Act, for the adoption of these revisions to

ARSD 74:36:07. Specifically, the State of South Dakota held a public

hearing on November 20, 1996, after providing notice to the public, for

the revisions to the ARSD submitted to EPA on May 2, 1997. For the SIP

revisions submitted on May 6, 1999, the State held a public hearing on

February 18, 1999 after providing notice to the public.

IV. How Does This Proposed Action Affect Sources in Indian Country

as Interpreted in South Dakota?

EPA has been consulting with the affected Tribes and has had

discussions with the State regarding the extent of Indian country in

South Dakota. Based on these discussions, we propose the following

language. Recognizing that the affected parties may have differing

opinions, we invite comment from the Tribes, the State and others.

EPA's decision to approve these revisions to the South Dakota SIP

regarding NSPS does not include any land that is, or becomes after the

date of this authorization, ``Indian country,'' as defined in 18 U.S.C.

1151, including:

A. Land within formal Indian reservations located within or

abutting the State of South Dakota, including the:

1. Cheyenne River Indian Reservation,

2. Crow Creek Indian Reservation,

3. Flandreau Indian Reservation,

4. Lower Brule Indian Reservation,

5. Pine Ridge Indian Reservation,

6. Rosebud Indian Reservation,

7. Standing Rock Indian Reservation, and

8. Yankton Indian Reservation.

B. Any land held in trust by the United States for an Indian tribe,

and

C. Any other land, whether on or off a reservation, that qualifies

as Indian country.

Moreover, in the context of these principles, a more detailed

discussion for three reservations follows.

Rosebud Sioux Reservation

In a September 16, 1996, Federal Register notice regarding EPA's

final determination of adequacy of South Dakota's municipal solid waste

permit program over non-Indian lands, EPA noted that the U.S. Supreme

Court in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977), determined

that three Congressional acts diminished the Rosebud Sioux Reservation

and that it no longer includes Gregory, Tripp, Lyman and Mellette

Counties. See 61 FR 48683. Accordingly, EPA proposes to approve these

revisions to the South Dakota SIP regarding NSPS for all land in

Gregory, Tripp, Lyman and Mellette Counties that was formerly within

the 1889 Rosebud Sioux Reservation boundaries and does not otherwise

qualify as Indian country under 18 U.S.C. 1151. This proposed approval

[[Page 51090]]

does not include any trust or other land in Gregory, Tripp, Lyman and

Mellette Counties that qualifies as Indian country.

Lake Traverse (Sisseton-Wahpeton) Reservation

In the September 16, 1996, Federal Register document, EPA noted

that the U.S. Supreme Court in DeCoteau v. District County Court, 420

U.S. 425 (1975), determined that an Act of Congress disestablished the

Lake Traverse (Sisseton-Wahpeton) Reservation. Therefore, EPA proposes

to approve these revisions to the South Dakota SIP regarding NSPS for

all land that was formerly within the 1867 Lake Traverse Reservation

boundaries and does not otherwise qualify as Indian country under 18

U.S.C. 1151. This proposed approval does not include any trust or other

land within the former Lake Traverse Reservation that qualifies as

Indian country.

Yankton Sioux Reservation

The U.S. Supreme Court's ruling in South Dakota v. Yankton Sioux

Tribe, 522 U.S. 329 (1998), found that the Yankton Sioux Reservation

has been diminished by the unallotted, ``ceded'' lands, that is, those

lands that were not allotted to Tribal members and that were sold by

the Yankton Sioux Tribe to the United States pursuant to an Agreement

executed in 1892 and ratified by the United States Congress in 1894.

Accordingly, EPA proposes to approve these revisions to the South

Dakota SIP regarding NSPS for unallotted, ceded lands that were ceded

as a result of the Act of 1894, 28 Stat. 286 and do not otherwise

qualify as Indian country under 18 U.S.C. 1151. This proposed approval

does not include any trust or other land within the original boundaries

of the Yankton Sioux Reservation that qualifies as Indian country under

18 U.S.C. 1151. EPA acknowledges that there may be further

interpretation of land status by the final federal court decision in

Yankton Sioux Tribe v. Gaffey, Nos. 98-3893, 3894, 3986, 3900. If

Indian country status changes as a result of Gaffey, EPA will act to

modify this SIP approval as appropriate.

V. EPA Requests Public Comment on this Proposal

For the reasons discussed above, EPA is proposing to approve South

Dakota's May 2, 1997 and May 6, 1999 SIP revisions regarding the

State's NSPS regulations in subchapter 74:36:07 of the ARSD, except for

those sources located in Indian country. EPA also proposes to clarify

the interpretation of Indian country in South Dakota. We solicit public

comments on the issues discussed in this document or on other relevant

matters. These comments will be considered before taking final action.

Interested parties may participate in the Federal rulemaking procedure

by submitting written comments to the EPA Regional office listed in the

Addresses section of this document.

VI. What Are the Administrative Requirements Associated With This

Action?

A. Executive Order 12866

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

regulatory action from Executive Order 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Orders on Federalism

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 Office

of Management and Budget 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 proposed rule would

not create a mandate on state, local, or tribal governments. The

proposed rule would not impose any enforceable duties on these

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

Order 12875 do not apply to this proposed rule.

On August 4, 1999, President Clinton issued a new executive order

on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999)),

which will take effect on November 2, 1999. In the interim, the current

Executive Order 12612, (52 FR 41685 (October 30, 1987)), on federalism

still applies. This proposed rule will not have a substantial direct

effect on States, on the relationship between the national government

and the States, or on the distribution of power and responsibilities

among the various levels of government, as specified in Executive Order

12612. The proposed rule would affect only one State, and would not

alter the relationship or the distribution of power and

responsibilities established in the Clean Air Act.

C. Executive Order 13045

Executive Order 13045, Protection of Children from Environmental

Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to

any rule that: (1) Is determined to be ``economically significant'' as

defined under Executive Order 12866, and (2) concerns an environmental

health or safety risk that EPA has reason to believe may have a

disproportionate effect on children. If the regulatory action meets

both criteria, the Agency must evaluate the environmental health or

safety effects of the planned rule on children, and explain why the

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the Agency.

This proposed rule is not subject to Executive Order 13045 because

it does not involve decisions intended to mitigate environmental health

or safety risks.

D. 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 Office of Management and Budget, 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, Executive Order 13084 requires EPA to develop an

effective process permitting elected officials and other

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

proposed rule would not significantly or uniquely affect the

communities of Indian tribal

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governments. Accordingly, the requirements of section 3(b) of Executive

Order 13084 do not apply to this proposed rule.

E. 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 proposed rule would not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 of the Clean Air Act do not create any new requirements but

simply approve requirements that the State is already imposing.

Therefore, because the proposed Federal SIP approval would not create

any new requirements, I certify that this action will not have a

significant economic 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 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, 255-66 (1976);

42 U.S.C. 7410(a)(2).

F. 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

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 proposed would 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 proposes to

approve pre-existing requirements under State or local law, and imposes

no new requirements. Accordingly, no additional costs to State, local,

or tribal governments, or to the private sector, would result from this

proposed action.

G. National Technology Transfer and Advancement Act

Section 12 of the National Technology and Advancement Act (NTTAA)

of 1995 requires Federal agencies to evaluate existing technical

standards when developing a new regulation. To comply with NTTAA, EPA

must consider and use ``voluntary consensus standards'' (VCS) if

available and applicable when developing programs and policies unless

doing so would be inconsistent with applicable law or otherwise

impractical.

The EPA believes VCS are inapplicable to this proposed action.

Today's proposed action would not require the public to perform

activities conducive to the use of VCS.

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Particulate matter, Reporting

and recordkeeping requirements, Sulfur oxides.

40 CFR Part 60

Environmental protection, Air pollution control, Aluminum, Ammonium

sulfate plants, Beverages, Carbon monoxide, Cement industry, Coal,

Copper, Drycleaners, Electric power plants, Fertilizers, Fluoride,

Gasoline, Glass and glass products, Grains, Graphic arts industry,

Household appliances, Insulation, Intergovernmental relations, Iron,

Lead, Lime, Metallic and nonmetallic mineral processing plants, Metals,

Motor vehicles, Natural gas, Nitric acid plants, Nitrogen dioxide,

Paper and paper products industry, Particulate matter, Paving and

roofing materials, Petroleum, Phosphate, Plastics materials and

synthetics, Reporting and recordkeeping requirements, Sewage disposal,

Steel, Sulfur oxides, Tires, Urethane, Vinyl, Waste treatment and

disposal, Wool, Zinc.

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

Dated: September 13, 1999.

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

[FR Doc. 99-24508 Filed 9-20-99; 8:45 am]

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