71040 Federal Register / Vol. 79, No. 230 / Monday, December 1, 2014 / Proposed Rules 

(g) Revision of Airplane Flight Manual 

(AFM) 

Within 14 days after the effective date of 

this AD, revise the Operating Limitations 

section of the FAA-approved AFM to include 

the information in figure 1 to paragraph (g) 

of this AD. This may be accomplished by 

inserting a copy of this AD into the 

Limitations section of the AFM. 

FIGURE 1 TO PARAGRAPH (G) OF THIS AD–AFM REVISION

Unless approved by the Manager of the Seattle Aircraft Certification Office, the carriage of the following payloads is prohibited: 

1) Intermodal containers nominally sized at 20 feet long, 8 feet wide, and 8.5 feet tall that are not concentrically loaded on a pallet and restrained to the aircraft in accordance with the FAA-approved Weight and Balance Manual or Supplement. 

2) ISO 668-1CC containers that are not concentrically loaded on a pallet and restrained to the aircraft in accordance with the FAA-approved 

Weight and Balance Manual or Supplement. 

Note: Both payloads 1 and 2 may be concentrically loaded on a pallet and netted in accordance with the FAA-approved Weight and Balance 

Manual and then loaded in the center of the airplane and restrained to the airplane by the approved center loaded cargo restraint system or 

restrained directly to the airplane, both as defined in the FAA-approved Weight and Balance Manual. 

(h) Special Flight Permits 

Special flight permits, as described in 

Section 21.197 and Section 21.199 of the 

Federal Aviation Regulations (14 CFR 21.197 

and 21.199), are not allowed if any 

intermodal container prohibited as specified 

in figure 1 to paragraph (g) of this AD is on 

board. For special flight permits, carriage of 

freight is not allowed. 

(i) Alternative Methods of Compliance 

(AMOCs) 

(1) The Manager, Seattle Aircraft 

Certification Office (ACO), FAA, has the 

authority to approve AMOCs for this AD, if 

requested using the procedures found in 14 

CFR 39.19. In accordance with 14 CFR 39.19, 

send your request to your principal inspector 

or local Flight Standards District Office, as 

appropriate. If sending information directly 

to the manager of the ACO, send it to the 

attention of the person identified in 

paragraph (j) of this AD. Information may be 

emailed to: 9-ANM-Seattle-ACO-AMOCRequests@faa.gov. 

(2) Before using any approved AMOC, 

notify your appropriate principal inspector, 

or lacking a principal inspector, the manager 

of the local flight standards district office/

certificate holding district office. 

(3) An AMOC that provides an acceptable 

level of safety may be used for any repair 

required by this AD if it is approved by the 

Boeing Commercial Airplanes Organization 

Designation Authorization (ODA) that has 

been authorized by the Manager, Seattle ACO 

to make those findings. For a repair method 

to be approved, the repair must meet the 

certification basis of the airplane, and the 

approval must specifically refer to this AD. 

(j) Related Information 

For more information about this AD, 

contact Steven C. Fox, Senior Aerospace 

Engineer, Airframe Branch, ANM–120S, 

FAA, Seattle Aircraft Certification Office 

(ACO), 1601 Lind Avenue SW., Renton, WA 

98057–3356; phone: 425–917–6425; fax: 425– 

917–6590; email: steven.fox@faa.gov. 

Issued in Renton, Washington, on 

November 21, 2014. 

Jeffrey E. Duven, 

Manager, Transport Airplane Directorate, 

Aircraft Certification Service. 

[FR Doc. 2014–28303 Filed 11–28–14; 8:45 am] 

BILLING CODE 4910–13–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2011–0725, FRL–9919–95– 

Region–8] 

Promulgation of State Implementation 

Plan Revisions; Infrastructure 

Requirements for the 1997 and 2006 

PM2.5, 2008 Lead, 2008 Ozone, and 

2010 NO2 National Ambient Air Quality 

Standards; South Dakota 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

elements of State Implementation Plan 

(SIP) revisions from the State of South 

Dakota to demonstrate the State meets 

infrastructure requirements of the Clean 

Air Act (CAA) for the National Ambient 

Air Quality Standards (NAAQS) 

promulgated for particulate matter (PM) 

on July 18, 1997 and October 17, 2006; 

lead (Pb) on October 15, 2008; ozone on 

March 12, 2008; and nitrogen dioxide 

(NO2) on January 22, 2010. EPA is also 

proposing to approve SIP revisions the 

State submitted updating the Prevention 

of Significant Deterioration (PSD) 

program and provisions regarding state 

boards. Section 110(a) of the CAA 

requires that each state submit a SIP for 

the implementation, maintenance, and 

enforcement of each NAAQS 

promulgated by EPA. 

DATES: Written comments must be 

received on or before December 31, 

2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2011–0725, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• Email: fulton.abby@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Director, Air Program, 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. 

• Hand Delivery: Director, Air 

Program, Environmental Protection 

Agency (EPA), Region 8, Mail Code 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. Such deliveries 

are only accepted Monday through 

Friday, 8:00 a.m. to 4:30 p.m., excluding 

federal holidays. Special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R08–OAR–2011– 

0725. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA, without going 

through www.regulations.gov your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 


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technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http://

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to section I, 

General Information, of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8:00 a.m. to 4:00 p.m., excluding 

federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Abby Fulton, Air Program, U.S. 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. 303–312–6563, 

fulton.abby@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

(i) The word Administrator means or 

refers to the Administrator of the U.S. 

Environmental Protection Agency. 

(ii) The initials AERR mean or refer to 

Air Emissions Reporting Rule. 

(iii) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

(iv) The initials AMNP mean or refer 

to Air Monitoring Network Plan. 

(v) The initials ARSD mean or refer to 

the Administrative Rules of South 

Dakota. 

(vi) The initials BACT mean or refer 

to Best Available Control Technology. 

(vii) The initials BME mean or refer to 

Board of Minerals and Environment. 

(viii) The initials CAIR mean or refer 

to the Clean Air Interstate Rule. 

(ix) The initials CBI mean or refer to 

confidential business information. 

(x) The initials CSAPR mean or refer 

to the Cross-State Air Pollution Rule. 

(xi) The words or initials Department 

or DENR mean or refer to the 

Department of Environment and Natural 

Resources. 

(xii) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(xiii) The initials FRM mean or refer 

to Federal Reference Method. 

(xiv) The initials GHG mean or refer 

to greenhouse gases. 

(xv) The initials NAAQS mean or refer 

to national ambient air quality 

standards. 

(xvi) The initials NEI mean or refer to 

the National Emissions Inventory. 

(xvii) The initials NO2 mean or refer 

to nitrogen dioxide. The 2010 NO2

NAAQS is expressed as the three year 

average of the 98th percentile of the 

annual distribution of daily maximum 

1-hour average concentrations. 

(xviii) The initials NSR mean or refer 

to new source review. 

(xix) The initials Pb mean or refer to 

primary and secondary lead less than or 

equal to 0.15 micrograms per cubic 

meter. 

(xx) The initials PM mean or refer to 

particulate matter. 

(xxi) The initials PM2.5 mean or refer 

to particulate matter with an 

aerodynamic diameter of less than 2.5 

micrometers (fine particulate matter). 

(xxii) The initials ppb mean or refer 

to parts per billion. 

(xxiii) The initials ppm mean or refer 

to parts per million. 

(xxiv) The initials PSD mean or refer 

to Prevention of Significant 

Deterioration. 

(xxv) The initials SDCL mean or refer 

to South Dakota Codified Laws. 

(xxvi) The initials SILs mean or refer 

to significant impact level. 

(xxvii) The initials SIP mean or refer 

to State Implementation Plan. 

(xxviii) The initials SLAMS mean or 

refer to State and Local Air Monitoring 

Stations. 

(xxix) The initials SMCs mean or refer 

to significant monitoring 

concentrations. 

(xxx) The initials SSM mean or refer 

to start-up, shutdown, or malfunction. 

(xxxi) The word State means or refers 

to the State of South Dakota. 

(xxxii) The initials mg/m3 mean or 

refer to micrograms per cubic meter. 

Table of Contents 

I. General Information 

II. Background 

III. What is the scope of this Rulemaking? 

IV. What infrastructure elements are required 

under Sections 110(a)(1) and (2)? 

V. How did South Dakota address the 

infrastructure elements of Sections 

110(a)(1) and (2)? 

VI. Analysis of the State submittals 

VII. What action is EPA taking? 

VIII. Statutory and Executive Orders Reviews 

I. General Information 

What should I consider as I prepare my 

comments for EPA? 

1. Submitting Confidential Business 

Information (CBI). Do not submit CBI to 

EPA through http://www.regulations.gov 

or email. Clearly mark the part or all of 

the information that you claim to be 

CBI. For CBI information on a disk or 

CD ROM that you mail to EPA, mark the 

outside of the disk or CD ROM as CBI 

and then identify electronically within 

the disk or CD ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

2. Tips for preparing your comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register volume, date, and page 

number); 

• Follow directions and organize your 

comments; 

• Explain why you agree or disagree; 

• Suggest alternatives and substitute 

language for your requested changes; 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used; 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced; 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives; 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats; and, 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background 

On July 18, 1997, EPA promulgated a 

new 24-hour and annual NAAQS for 

fine particulate matter (PM2.5) (62 FR 

38652). More recently, on October 17, 

2006, EPA revised the standards for 


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1For example: Section 110(a)(2)(E)(i) provides 

that states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a SIP-approved program to 

address certain sources as required by part C of title 

I of the CAA; and section 110(a)(2)(G) provides that 

states must have legal authority to address 

emergencies as well as contingency plans that are 

triggered in the event of such emergencies. 

2See, e.g., ‘‘Rule To Reduce Interstate Transport 

of Fine Particulate Matter and Ozone (Clean Air 

Interstate Rule); Revisions to Acid Rain Program; 

Revisions to the NOX SIP Call; Final Rule,’’ 70 FR 

25162, at 25163–65 (May 12, 2005) (explaining 

relationship between timing requirement of section 

110(a)(2)(D) versus section 110(a)(2)(I)). 

3EPA notes that this ambiguity within section 

110(a)(2) is heightened by the fact that various 

subparts of part D set specific dates for submission 

of certain types of SIP submissions in designated 

nonattainment areas for various pollutants. Note, 

e.g., that section 182(a)(1) provides specific dates 

for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are 

necessarily later than three years after promulgation 

of the new or revised NAAQS. 

PM2.5, tightening the 24-hour PM2.5

standard from 65 micrograms per cubic 

meter (mg/m3) to 35mg/m3, and retaining 

the annual PM2.5 standard at 15 mg/m3

(71 FR 61144). On March 12, 2008, EPA 

promulgated a new NAAQS for ozone, 

revising the levels of the primary and 

secondary 8-hour ozone standards from 

0.08 parts per million (ppm) to 0.075 

ppm (73 FR 16436). Subsequently, on 

October 15, 2008, EPA revised the level 

of the primary and secondary Pb 

NAAQS from 1.5 micrograms per cubic 

meter (mg/m3) to 0.15 mg/m3 (73 FR 

66964). On January 22, 2010, EPA 

promulgated a new 1-hour primary 

NAAQS for NO2 at a level of 100 parts 

per billion (ppb) while retaining the 

annual standard of 53 ppb. The 

secondary NO2 NAAQS remains 

unchanged at 53 ppb (75 FR 6474, Feb. 

9, 2010). 

Under sections 110(a)(1) and (2) of the 

CAA, states are required to submit 

infrastructure SIPs to ensure their SIPs 

provide for implementation, 

maintenance, and enforcement of the 

NAAQS. These submissions must 

contain any revisions needed for 

meeting the applicable SIP requirements 

of section 110(a)(2), or certifications that 

their existing SIPs for PM, ozone, Pb, 

and NO2 already meet those 

requirements. EPA highlighted this 

statutory requirement in an October 2, 

2007, guidance document entitled 

‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 

1997 8-hour Ozone and PM2.5 National 

Ambient Air Quality Standards’’ (2007 

Memo). On September 25, 2009, EPA 

issued an additional guidance document 

pertaining to the 2006 PM2.5 NAAQS 

entitled ‘‘Guidance on SIP Elements 

Required Under Sections 110(a)(1) and 

(2) for the 2006 24-Hour Fine Particle 

(PM2.5) National Ambient Air Quality 

Standards (NAAQS)’’ (2009 Memo), 

followed by the October 14, 2011, 

‘‘Guidance on Infrastructure SIP 

Elements Required Under Sections 

110(a)(1) and (2) for the 2008 Lead (Pb) 

National Ambient Air Quality Standards 

(NAAQS)’’ (2011 Memo). Most recently, 

EPA issued ‘‘Guidance on Infrastructure 

State Implementation Plan (SIP) 

Elements under Clean Air Act Sections 

110(a)(1) and (2)’’ on September 13, 

2013 (2013 Memo). 

III. What is the scope of this 

Rulemaking? 

EPA is acting upon the SIP 

submissions from South Dakota that 

address the infrastructure requirements 

of CAA sections 110(a)(1) and 110(a)(2) 

for the1997 and 2006 PM2.5, 2008 ozone, 

2008 Pb, and 2010 NO2 NAAQS. The 

requirement for states to make a SIP 

submission of this type arises out of 

CAA section 110(a)(1). Pursuant to 

section 110(a)(1), states must make SIP 

submissions ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof),’’ and 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA taking any action other than 

promulgating a new or revised NAAQS. 

Section 110(a)(2) includes a list of 

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

sections 110(a)(1) and 110(a)(2) as 

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA; ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A; and nonattainment 

new source review (NSR) permit 

program submissions to address the 

permit requirements of CAA, title I, part 

D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. The list of required 

elements provided in section 110(a)(2) 

contains a wide variety of disparate 

provisions, some of which pertain to 

required legal authority, some of which 

pertain to required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.1 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

section 110(a)(2) requires that ‘‘each’’ 

SIP submission must meet the list of 

requirements therein, while EPA has 

long noted that this literal reading of the 

statute is internally inconsistent and 

would create a conflict with the 

nonattainment provisions in part D of 

title I of the CAA, which specifically 

address nonattainment SIP 

requirements.2 Section 110(a)(2)(I) 

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submission of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

and section 107(d)(1)(B) allows up to 

two years, or in some cases three years, 

for such designations to be 

promulgated.3 This ambiguity illustrates 

that rather than apply all the stated 

requirements of section 110(a)(2) in a 

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within 

sections 110(a)(1) and 110(a)(2) with 

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submission, and whether EPA 

must act upon such SIP submission in 

a single action. Although section 

110(a)(1) directs states to submit ‘‘a 


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4See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans; New Mexico; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Prevention of 

Significant Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) Permitting,’’ (78 FR 

4339, Jan. 22, 2013) (EPA’s final action approving 

the structural PSD elements of the New Mexico SIP 

submitted by the State separately to meet the 

requirements of EPA’s 2008 PM2.5 NSR rule), and 

‘‘Approval and Promulgation of Air Quality 

Implementation Plans; New Mexico; Infrastructure 

and Interstate Transport Requirements for the 2006 

p.m.2.5 NAAQS,’’ (78 FR 4337, Jan. 22, 2013) 

(EPA’s final action on the infrastructure SIP for the 

2006 PM2.5 NAAQS). 

5On December 14, 2007, the State of Tennessee, 

through the Tennessee Department of Environment 

and Conservation, made a SIP revision to EPA 

demonstrating that the State meets the requirements 

of sections 110(a)(1) and (2). EPA proposed action 

for infrastructure SIP elements (C) and (J) on 

January 23, 2012 (77 FR 3213) and took final action 

on March 14, 2012 (77 FR 14976). On April 16, 

2012 (77 FR 22533) and July 23, 2012 (77 FR 

42997), EPA took separate proposed and final 

actions on all other section 110(a)(2) infrastructure 

SIP elements of Tennessee’s December 14, 2007 

submittal. 

6For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

7EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

8EPA’s September 13, 2013, guidance did not 

make recommendations with respect to 

infrastructure SIP submissions to address section 

110(a)(2)(D)(i)(I). EPA issued the guidance shortly 

after the U.S. Supreme Court agreed to review the 

D.C. Circuit decision in EME Homer City, 696 F.3d 

7 (D.C. Cir. 2012) which had interpreted the 

requirements of section 110(a)(2)(D)(i)(I). In light of 

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

requirements of section 110(a)(2)(D)(i)(I) at that 

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

plan’’ to meet these requirements, EPA 

interprets the CAA to allow states to 

make multiple SIP submissions 

separately addressing infrastructure SIP 

elements for the same NAAQS. If states 

elect to make such multiple SIP 

submissions to meet the infrastructure 

SIP requirements, EPA can elect to act 

on such submissions either individually 

or in a larger combined action.4

Similarly, EPA interprets the CAA to 

allow it to take action on the individual 

parts of one larger, comprehensive 

infrastructure SIP submission for a 

given NAAQS without concurrent 

action on the entire submission. For 

example, EPA has sometimes elected to 

act at different times on various 

elements and sub-elements of the same 

infrastructure SIP submission.5

Ambiguities within sections 110(a)(1) 

and 110(a)(2) may also arise with 

respect to infrastructure SIP submission 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

of section 110(a)(2) would be relevant, 

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

110(a)(2)(B) could be very different for 

different pollutants because the content 

and scope of a state’s infrastructure SIP 

submission to meet this element might 

be very different for an entirely new 

NAAQS than for a minor revision to an 

existing NAAQS.6

EPA notes that interpretation of 

section 110(a)(2) is also necessary when 

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

section 110(a)(2) that logically apply to 

these other types of SIP submissions. 

For example, section 172(c)(7) requires 

that attainment plan SIP submissions 

required by part D have to meet the 

‘‘applicable requirements’’ of section 

110(a)(2). Thus, for example, attainment 

plan SIP submissions must meet the 

requirements of section 110(a)(2)(A) 

regarding enforceable emission limits 

and control measures and section 

110(a)(2)(E)(i) regarding air agency 

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

110(a)(2)(C) that pertains to the PSD 

program required in part C of title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

elements of section 110(a)(2) but not 

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

110(a)(1) and section 110(a)(2), EPA 

believes that it is appropriate to 

interpret the ambiguous portions of 

section 110(a)(1) and section 110(a)(2) 

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

the list of elements in section 110(a)(2), 

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.7 EPA’s 2013 Memo 

was developed to provide states with 

up-to-date guidance for infrastructure 

SIPs for any new or revised NAAQS. 

Within this guidance, EPA describes the 

duty of states to make infrastructure SIP 

submissions to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

subsections of section 110(a)(2) that are 

relevant in the context of infrastructure 

SIP submissions.8 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

110(a)(1) and 110(a)(2) such that 

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) 

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

SIP appropriately addresses the 

requirements of section 110(a)(2)(E)(ii) 

and section 128. The 2013 Memo 

explains EPA’s interpretation that there 

may be a variety of ways by which states 

can appropriately address these 

substantive statutory requirements, 

depending on the structure of an 

individual state’s permitting or 

enforcement program (e.g., whether 

permits and enforcement orders are 

approved by a multi-member board or 

by a head of an executive agency). 

However they are addressed by the 

state, the substantive requirements of 


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9By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption for excess emissions during 

SSM events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

10For example, EPA issued a SIP call to Utah to 

address specific existing SIP deficiencies related to 

the treatment of excess emissions during SSM 

events. See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 74 FR 21639, 

April 18, 2011. 

11EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536, Dec. 30, 2010. EPA has previously used its 

authority under CAA section 110(k)(6) to remove 

numerous other SIP provisions that the Agency 

determined it had approved in error. See, e.g., 61 

FR 38664, July 25, 1996 and 62 FR 34641, June 27, 

1997 (corrections to American Samoa, Arizona, 

California, Hawaii, and Nevada SIPs); 69 FR 67062, 

Nov. 16, 2004 (corrections to California SIP); and 

74 FR 57051, Nov. 3, 2009 (corrections to Arizona 

and Nevada SIPs). 

section 128 are necessarily included in 

EPA’s evaluation of infrastructure SIP 

submissions because section 

110(a)(2)(E)(ii) explicitly requires the 

state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

requirements in sections 110(a)(2)(C), 

(D)(i)(II), and (J) focuses upon the 

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and NSR 

pollutants, including greenhouse gases 

(GHGs). By contrast, structural PSD 

program requirements do not include 

provisions that are not required under 

EPA’s regulations at 40 CFR 51.166 but 

are merely available as an option for the 

state, such as the option to provide 

grandfathering of complete permit 

applications with respect to the 2012 

PM2.5 NAAQS. Accordingly, the latter 

optional provisions are types of 

provisions EPA considers irrelevant in 

the context of an infrastructure SIP 

action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s SIP meets 

basic structural requirements. For 

example, section 110(a)(2)(C) includes, 

inter alia, the requirement that states 

have a program to regulate minor new 

sources. Thus, EPA evaluates whether 

the state has an EPA approved minor 

NSR program and whether the program 

addresses the pollutants relevant to that 

NAAQS. In the context of acting on an 

infrastructure SIP submission, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction (SSM) that 

may be contrary to the CAA and EPA’s 

policies addressing such excess 

emissions; (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that may be 

contrary to the CAA because they 

purport to allow revisions to SIPapproved emissions limits while 

limiting public process or not requiring 

further approval by EPA; and (iii) 

existing provisions for PSD programs 

that may be inconsistent with current 

requirements of EPA’s ‘‘Final NSR 

Improvement Rule,’’ 67 FR 80186, Dec. 

31, 2002, as amended by 72 FR 32526, 

June 13, 2007. (‘‘NSR Reform’’). Thus, 

EPA believes it may approve an 

infrastructure SIP submission without 

scrutinizing the totality of the existing 

SIP for such potentially deficient 

provisions and may approve the 

submission even if it is aware of such 

existing provisions.9 It is important to 

note that EPA’s approval of a state’s 

infrastructure SIP submission should 

not be construed as explicit or implicit 

re-approval of any existing potentially 

deficient provisions that relate to the 

three specific issues just described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

110(a)(2) as requiring review of each 

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up-to-date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

section 110(a)(2) of the CAA most likely 

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, the 2013 Memo gives 

simpler recommendations with respect 

to carbon monoxide than other NAAQS 

pollutants to meet the visibility 

requirements of section 

110(a)(2)(D)(i)(II), because carbon 

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

110(a)(2)(D)(i)(II). 

Finally, EPA believes its approach 

with respect to infrastructure SIP 

requirements is based on a reasonable 

reading of sections 110(a)(1) and 

110(a)(2) because the CAA provides 

other avenues and mechanisms to 

address specific substantive deficiencies 

in existing SIPs. These other statutory 

tools allow EPA to take appropriately 

tailored action, depending upon the 

nature and severity of the alleged SIP 

deficiency. Section 110(k)(5) authorizes 

EPA to issue a ‘‘SIP call’’ whenever the 

agency determines that a state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or to otherwise 

comply with the CAA.10 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.11

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action to correct those 

deficiencies at a later time. For example, 

although it may not be appropriate to 

require a state to eliminate all existing 

inappropriate director’s discretion 

provisions in the course of acting on an 

infrastructure SIP submission, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 


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12See, e.g., EPA’s disapproval of a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42342 at 

42344, July 21, 2010 (proposed disapproval of 

director’s discretion provisions); 76 FR 4540, Jan. 

26, 2011 (final disapproval of such provisions). 

13Steven Herman, Assistant Administrator for 

Enforcement and Compliance Assurance, and 

Robert Perciasepe, Assistant Administrator for Air 

and Radiation, Memorandum to EPA Air Division 

Directors, ‘‘State Implementation Plans (SIPs): 

Policy Regarding Emissions During Malfunctions, 

Startup, and Shutdown.’’ (September 20, 1999). 

such deficiency in a subsequent 

action.12

IV. What infrastructure elements are 

required under Sections 110(a)(1) and 

(2)? 

CAA section 110(a)(1) provides the 

procedural and timing requirements for 

SIP submissions after a new or revised 

NAAQS is promulgated. Section 

110(a)(2) lists specific elements the SIP 

must contain or satisfy. These 

infrastructure elements include 

requirements such as modeling, 

monitoring, and emissions inventories, 

which are designed to assure attainment 

and maintenance of the NAAQS. The 

elements that are the subject of this 

action are listed below. 

• 110(a)(2)(A): Emission limits and 

other control measures. 

• 110(a)(2)(B): Ambient air quality 

monitoring/data system. 

• 110(a)(2)(C): Program for 

enforcement of control measures. 

• 110(a)(2)(D): Interstate transport. 

• 110(a)(2)(E): Adequate resources 

and authority, conflict of interest, and 

oversight of local governments and 

regional agencies. 

• 110(a)(2)(F): Stationary source 

monitoring and reporting. 

• 110(a)(2)(G): Emergency powers. 

• 110(a)(2)(H): Future SIP revisions. 

• 110(a)(2)(J): Consultation with 

government officials; public 

notification; and PSD and visibility 

protection. 

• 110(a)(2)(K): Air quality modeling/

data. 

• 110(a)(2)(L): Permitting fees. 

• 110(a)(2)(M): Consultation/

participation by affected local entities. 

A detailed discussion of each of these 

elements is contained in the next 

section. 

Two elements identified in section 

110(a)(2) are not governed by the three 

year submission deadline of section 

110(a)(1) and are therefore not 

addressed in this action. These elements 

relate to part D of Title I of the CAA, and 

submissions to satisfy them are not due 

within three years after promulgation of 

a new or revised NAAQS, but rather are 

due at the same time nonattainment area 

plan requirements are due under section 

172. The two elements are: (1) Section 

110(a)(2)(C) to the extent it refers to 

permit programs (known as 

‘‘nonattainment NSR’’) required under 

part D, and (2) section 110(a)(2)(I), 

pertaining to the nonattainment 

planning requirements of part D. As a 

result, this action does not address 

infrastructure elements related to the 

nonattainment NSR portion of section 

110(a)(2)(C) or related to 110(a)(2)(I). 

Furthermore, EPA interprets the CAA 

section 110(a)(2)(J) provision on 

visibility as not being triggered by a new 

NAAQS because the visibility 

requirements in part C, title 1 of the 

CAA are not changed by a new NAAQS. 

V. How did South Dakota address the 

infrastructure elements of Sections 

110(a)(1) and (2)? 

The South Dakota Department of 

Environment and Natural Resources 

(DENR) submitted certifications of 

South Dakota’s infrastructure SIP for the 

1997 and 2006 PM2.5 NAAQS on May 

20, 2008, and March 4, 2011, 

respectively; the 2008 Pb NAAQS on 

October 10, 2012; the 2008 ozone 

NAAQS on May 21, 2013; and the 2010 

NO2 NAAQS October 23, 2013. South 

Dakota’s infrastructure certifications 

demonstrate how the State, where 

applicable, has plans in place that meet 

the requirements of section 110 for the 

1997 and 2006 PM2.5, 2008 Pb, 2008 

ozone, and 2010 NO2 NAAQS. These 

plans reference the current 

Administrative Rules of South Dakota 

(ARSD) and South Dakota Codified 

Laws (SDCL). These submittals are 

available within the electronic docket 

for today’s proposed action at 

www.regulations.gov. The ARSD and 

SDCL referenced in the submittals are 

publicly available at http://legis.sd.gov/ 

rules/RulesList.aspx and http://

legis.sd.gov/Statutes/Codified_Laws/

default.aspx. South Dakota’s SIP, air 

pollution control regulations and 

statutes that have been previously 

approved by EPA and incorporated into 

the South Dakota SIP can be found at 40 

CFR 52.2170. 

VI. Analysis of the State Submittals 

1. Emission limits and other control 

measures: Section 110(a)(2)(A) requires 

SIPs to include enforceable emission 

limitations and other control measures, 

means, or techniques (including 

economic incentives such as fees, 

marketable permits, and auctions of 

emissions rights), as well as schedules 

and timetables for compliance as may be 

necessary or appropriate to meet the 

applicable requirements of this Act. 

Multiple SIP-approved State air 

quality regulations within the ARSD 

and cited in South Dakota’s 

certifications provide enforceable 

emission limitations and other control 

measures, means of techniques, 

schedules for compliance, and other 

related matters necessary to meet the 

requirements of the CAA section 

110(a)(2)(A) for the 1997 and 2006 

PM2.5, 2008 Pb, 2008 ozone, and 2010 

NO2 NAAQS, subject to the following 

clarifications. 

First, this infrastructure element does 

not require the submittal of regulations 

or emission limitations developed 

specifically for attaining the 1997 and 

2006 PM2.5, 2008 Pb, 2008 ozone, and 

2010 NO2 NAAQS. Furthermore, South 

Dakota has no areas designated as 

nonattainment for the 1997 and 2006 

PM2.5, 2008 Pb, 2008 ozone, and 2010 

NO2 NAAQS. South Dakota’s 

certifications (contained within this 

docket) generally listed provisions 

within its SIP which regulate pollutants 

through various programs, including 

major and minor source permit 

programs. This suffices, in the case of 

South Dakota, to meet the requirements 

of section 110(a)(2)(A) for the 1997 and 

2006 PM2.5, 2008 Pb, 2008 ozone, and 

2010 NO2 NAAQS. 

Second, as previously discussed, EPA 

is not proposing to approve or 

disapprove any existing state rules with 

regard to director’s discretion or 

variance provisions. A number of states 

have such provisions which are contrary 

to the CAA and existing EPA guidance 

(52 FR 45109, Nov. 24, 1987), and the 

agency plans to take action in the future 

to address such state regulations. In the 

meantime, EPA encourages any state 

having a director’s discretion or 

variance provision which is contrary to 

the CAA and EPA guidance to take steps 

to correct the deficiency as soon as 

possible. 

Finally, in this action, EPA is also not 

proposing to approve or disapprove any 

existing state provision with regard to 

excess emissions during SSM of 

operations at a facility. A number of 

states have SSM provisions which are 

contrary to the CAA and existing EPA 

guidance 13 and the agency is addressing 

such state regulations separately (78 FR 

12460, Feb. 22, 2013). 

2. Ambient air quality monitoring/

data system: Section 110(a)(2)(B) 

requires SIPs to provide for 

establishment and operation of 

appropriate devices, methods, systems, 

and procedures necessary to ‘‘(i) 

monitor, compile, and analyze data on 

ambient air quality, and (ii) upon 


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14Currently ambient air monitoring for lead is not 

conducted or planned because past monitoring and 

past and current emissions inventories indicate low 

potential lead concentrations in the State (see page 

24 of the 2013 South Dakota AMNP at http://

denr.sd.gov/des/aq/aqnews/

Ann%20plan%202013.pdf). 

request, make such data available to the 

Administrator.’’ 

Under ARSD 74:36:02, the DENR 

operates a network of air monitoring 

sites. EPA approved South Dakota’s 

DENR 2013 Ambient Air Monitoring 

Network Plan (AMNP) on December 31, 

2013 14. The State of South Dakota 

submits data to EPA’s Air Quality 

System database in accordance with the 

deadlines in 40 CFR 58.16. South 

Dakota’s air monitoring programs and 

data systems meet the requirements of 

CAA section 110(a)(2)(B) for the 1997 

and 2006 PM2.5, 2008 Pb, 2008 ozone,

and 2010 NO2 NAAQS. 

3. Program for enforcement of control 

measures: Section 110(a)(2)(C) requires 

SIPs to include a program to provide for 

the enforcement of the measures 

described in subparagraph (A), and 

regulation of the modification and 

construction of any stationary source 

within the areas covered by the plan as 

necessary to assure NAAQS are 

achieved, including a permit program as 

required in parts C and D. 

To generally meet the requirements of 

section 110(a)(2)(C), the State is 

required to have SIP-approved PSD, 

nonattainment NSR, and minor NSR 

permitting programs adequate to 

implement the 1997 and 2006 PM2.5, 

2008 ozone, 2008 Pb, and 2010 NO2

NAAQS. As explained elsewhere in this 

action, EPA is not evaluating 

nonattainment related provisions, such 

as the nonattainment NSR program 

required by part D of the Act. EPA is 

evaluating the State’s PSD program as 

required by part C of the Act, and the 

State’s minor NSR program as required 

by 110(a)(2)(C). 

PSD Requirements 

With respect to elements (C) and (J), 

EPA interprets the CAA to require each 

state to make an infrastructure SIP 

submission for a new or revised NAAQS 

that demonstrates that the air agency 

has a complete PSD permitting program 

meeting the current requirements for all 

regulated NSR pollutants. The 

requirements of element (D)(i)(II) may 

also be satisfied by demonstrating the 

air agency has a complete PSD 

permitting program correctly addressing 

all regulated NSR pollutants. South 

Dakota has shown that it currently has 

a PSD program in place that covers all 

regulated NSR pollutants, including 

GHGs. 

South Dakota implements the PSD 

program by, for the most part, 

incorporating by reference the federal 

PSD program as it existed on a specific 

date. The State periodically updates the 

PSD program by revising the date of 

incorporation by reference and 

submitting the change as a SIP revision. 

As a result, the SIP revisions generally 

reflect changes to PSD requirements that 

EPA has promulgated prior to the 

revised date of incorporation by 

reference. 

On June 30, 2011, we approved a 

revision to the South Dakota PSD 

program that addressed the PSD 

requirements of the Phase 2 Ozone 

Implementation Rule promulgated in 

2005 (76 FR 43912, July 22, 2011). As 

a result, the approved South Dakota PSD 

program meets current requirements for 

ozone. 

On June 23, 2014, the United States 

Supreme Court issued a decision 

addressing the application of PSD 

permitting requirements to GHG 

emissions, Utility Air Regulatory Group 

v. Environmental Protection Agency, 

134 S. Ct. 2427. The Supreme Court said 

that EPA may not treat GHGs as an air 

pollutant for purposes of determining 

whether a source is a major source 

required to obtain a PSD permit. The 

Court also said that EPA could continue 

to require that PSD permits, otherwise 

required based on emissions of 

pollutants other than GHGs, contain 

limitations on GHG emissions based on 

the application of Best Available 

Control Technology (BACT). In order to 

act consistently with its understanding 

of the Court’s decision pending further 

judicial action to effectuate the decision, 

EPA is not continuing to apply EPA 

regulations that would require that SIPs 

include permitting requirements that 

the Supreme Court found 

impermissible. Specifically, EPA is not 

applying the requirement that a state’s 

SIP-approved PSD program require that 

sources obtain PSD permits when GHGs 

are the only pollutant (i) that the source 

emits or has the potential to emit above 

the major source thresholds, or (ii) for 

which there is a significant emissions 

increase and a significant net emissions 

increase from a modification (e.g., 40 

CFR 51.166(b)(48)(v)). EPA anticipates a 

need to revise federal PSD rules in light 

of the Supreme Court opinion. In 

addition, EPA anticipates that many 

states will revise their existing SIPapproved PSD programs in light of the 

Supreme Court’s decision. The timing 

and content of subsequent EPA actions 

with respect to EPA regulations and 

state PSD program approvals are 

expected to be informed by additional 

legal process before the United States 

Court of Appeals for the District of 

Columbia Circuit. At this juncture, EPA 

is not expecting states to have revised 

their PSD programs for purposes of 

infrastructure SIP submissions and is 

only evaluating such submissions to 

assure that the state’s program correctly 

addresses GHGs consistent with the 

Supreme Court’s decision. 

At present, EPA has determined that 

South Dakota’s SIP is sufficient to 

satisfy elements (C), (D)(i)(II), and (J) 

with respect to GHGs because the PSD 

permitting program previously 

approved by EPA into the SIP continues 

to require that PSD permits (otherwise 

required based on emissions of 

pollutants other than GHGs) contain 

limitations on GHG emissions based on 

the application of BACT. Although the 

approved South Dakota PSD permitting 

program may currently contain 

provisions that are no longer necessary 

in light of the Supreme Court decision, 

this does not render the infrastructure 

SIP submission inadequate to satisfy 

elements (C), (D)(i)(II), and (J). The SIP 

contains the necessary PSD 

requirements at this time, and the 

application of those requirements is not 

impeded by the presence of other 

previously-approved provisions 

regarding the permitting of sources of 

GHGs that EPA does not consider 

necessary at this time in light of the 

Supreme Court decision. Accordingly, 

the Supreme Court decision does not 

affect EPA’s proposed approval of South 

Dakota’s infrastructure SIP as to the 

requirements of elements (C), (D)(i)(II), 

and (J). 

Finally, we evaluate the PSD program 

with respect to current requirements for 

PM2.5. In particular, on May 16, 2008, 

EPA promulgated the rule, 

‘‘Implementation of the New Source 

Review Program for Particulate Matter 

Less Than 2.5 Micrometers (PM2.5)’’ (73 

FR 28321) and on October 20, 2010, 

EPA promulgated the rule, ‘‘Prevention 

of Significant Deterioration (PSD) for 

Particulate Matter Less Than 2.5 

Micrometers (PM2.5)—Increments, 

Significant Impact Levels (SILs) and 

Significant Monitoring Concentration 

(SMC)’’ (75 FR 64864). EPA regards 

adoption of these PM2.5 rules as a 

necessary requirement when assessing a 

PSD program for the purposes of 

element (C). 

On January 4, 2013, the U.S. Court of 

Appeals, in Natural Resources Defense 

Council v. EPA, 706 F.3d 428 (D.C. Cir.), 

issued a judgment that remanded EPA’s 

2007 and 2008 rules implementing the 

1997 PM2.5 NAAQS. The court ordered 

EPA to ‘‘repromulgate these rules 

pursuant to Subpart 4 consistent with 

this opinion.’’ Id. at 437. Subpart 4 of 


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15See NOX SIP Call (63 FR 57371, Oct. 27, 1998); 

Clean Air Interstate Rule (CAIR) (70 FR 25172, May 

12, 2005); and Transport Rule or Cross-State Air 

Pollution Rule (76 FR 48208, Aug.8, 2011). 

part D, Title 1 of the CAA establishes 

additional provisions for PM 

nonattainment areas. 

The 2008 implementation rule 

addressed by the court decision, 

‘‘Implementation of New Source Review 

(NSR) Program for Particulate Matter 

Less Than 2.5 Micrometers (PM2.5),’’ (73 

FR 28321, May 16, 2008), promulgated 

NSR requirements for implementation 

of PM2.5 in nonattainment areas 

(nonattainment NSR) and attainment/

unclassifiable areas (PSD). As the 

requirements of Subpart 4 only pertain 

to nonattainment areas, EPA does not 

consider the portions of the 2008 

Implementation rule that address 

requirements for PM2.5 attainment and 

unclassifiable areas to be affected by the 

court’s opinion. Moreover, EPA does not 

anticipate the need to revise any PSD 

requirements promulgated in the 2008 

Implementation rule in order to comply 

with the court’s decision. Accordingly, 

EPA’s proposed approval of South 

Dakota’s infrastructure SIP as to 

elements C or J with respect to the PSD 

requirements promulgated by the 2008 

Implementation rule does not conflict 

with the court’s opinion. 

The Court’s decision with respect to 

the nonattainment NSR requirements 

promulgated by the 2008 

Implementation rule also does not affect 

EPA’s action on the present 

infrastructure action. EPA interprets the 

Act to exclude nonattainment area 

requirements, including requirements 

associated with a nonattainment NSR 

program, from infrastructure SIP 

submissions due three years after 

adoption or revision of a NAAQS. 

Instead, these elements are typically 

referred to as nonattainment SIP or 

attainment plan elements, which would 

be due by the dates statutorily 

prescribed under subpart 2 through 5 

under part D, extending as far as 10 

years following designations for some 

elements. 

The second PSD requirement for 

PM2.5 is contained in EPA’s October 20, 

2010 rule, ‘‘Prevention of Significant 

Deterioration (PSD) for Particulate 

Matter Less Than 2.5 Micrometers 

(PM2.5)—Increments, Significant Impact 

Levels (SILs) and Significant Monitoring 

Concentration (SMC)’’ (75 FR 64864). 

EPA regards adoption of the PM2.5

increments as a necessary requirement 

when assessing a PSD program for the 

purposes of element (C). 

On July 22, 2011, we approved 

revisions to ARSD Chapter 74:36:09 that 

adopted by reference federal provisions 

of 40 CFR part 52, section 21, as they 

existed on July 1, 2009 (76 FR 43912, 

July 22, 2011). As July 1, 2009 is after 

the effective date of the 2008 PM2.5

Implementation Rule, 76 FR 43912 

incorporated the requirements of the 

2008 PM2.5 Implementation Rule; 

specifically, 40 CFR 52.21(b)(23)(i) and 

52.21(b)(50). On July 29, 2013, the State 

submitted revisions amending the ARSD 

pertaining to the issuance of South 

Dakota air quality permits. On June 27, 

2014, we acted on two pieces from the 

July 29, 2013 submittal (see 79 FR 

36419) which included the removal of 

ARSD Chapter 74:36:04:03:01 (Minor 

Source Operating Permit Variance) and 

revisions to ARSD Chapter 74:36:10 

(New Source Review). The July 29, 

2013, submittal also included revisions 

to ARSD Chapter 74:36:09 (Prevention 

of Significant Deterioration) which we 

are acting on in this action. The revision 

adopted by reference federal provisions 

of 40 CFR part 52, section 21, as they 

existed on July 1, 2012. As July 1, 2012 

is after the effective date of the 2010 

PM2.5 Increment Rule, the revisions to 

ARSD 74:36:09 as submitted on July 29, 

2013, incorporate the requirements of 

the 2010 PM2.5 Increment Rule; 

specifically, 40 CFR 52.21(b)(14)(i), (ii), 

(iii), (b)(15)(i), (ii), and paragraph (c). 

We propose to approve the necessary 

portions of the July 29, 2013 submission 

to reflect the requirements of the 2010 

PM2.5 Increment Rule. We are not 

proposing to act on any other portions 

of the July 29, 2013 submittal, including 

the incorporation by reference of SILs 

and SMCs for PM2.5. 

With these proposed revisions, South 

Dakota’s SIP-approved PSD program 

will meet current requirements for 

PM2.5. As a result, EPA is proposing to 

approve South Dakota’s infrastructure 

SIP for the 1997 and 2006 PM2.5, 2008 

ozone, 2008 Pb, and 2010 NO2 NAAQS 

with respect to the requirement in 

section 110(a)(2)(C) to include a permit 

program in the SIP as required by part 

C of the Act. 

Minor NSR 

The State has a SIP-approved minor 

NSR program, adopted under section 

110(a)(2)(C) of the Act. The minor NSR 

program was originally approved by 

EPA on September 6, 1995 (60 FR 

46222). Since approval of the minor 

NSR program, the State and EPA have 

relied on the program to assure that new 

and modified sources not captured by 

the major NSR permitting programs do 

not interfere with attainment and 

maintenance of the NAAQS. 

Additionally, EPA is not proposing to 

approve or disapprove any state rules 

with regard to the NSR Reform 

requirements because they are outside 

the scope of this action. EPA’s recent 

action taken on changes to South 

Dakota’s minor source NSR program (79 

FR 36419, June 27, 2014) does not 

impact the approvability of Section 

110(a)(2)(C) in this action. 

EPA is proposing to approve South 

Dakota’s infrastructure SIP for the 1997 

and 2006 PM2.5, 2008 ozone, 2008 Pb, 

and 2010 NO2 NAAQS with respect to 

the general requirement in section 

110(a)(2)(C) to include a program in the 

SIP that regulates the modification and 

construction of any stationary source as 

necessary to assure that the NAAQS are 

achieved. 

4. Interstate Transport: Section 

110(a)(2)(D)(i) is subdivided into four 

‘‘prongs,’’ two under 110(a)(2)(D)(i)(I) 

and two under 110(a)(2)(D)(i)(II). The 

two prongs under 110(a)(2)(D)(i)(I) 

require SIPs to contain adequate 

provisions to prohibit emissions that 

(prong 1) contribute significantly to 

nonattainment in any other state with 

respect to any such national primary or 

secondary NAAQS, and (prong 2) 

interfere with maintenance by any other 

state with respect to the same NAAQS. 

The two prongs under 110(a)(2)(D)(i)(II) 

require SIPs to contain adequate 

provisions to prohibit emissions that 

interfere with measures required to be 

included in the applicable 

implementation plan for any other state 

under part C (prong 3) to prevent 

significant deterioration of air quality or 

(prong 4) to protect visibility. 

We are proposing action on all four 

interstate transport prongs for the 2006 

PM2.5, 2008 Pb, and 2010 NO2 NAAQS 

in this rulemaking. We are not acting on 

the requirements of section 

110(a)(2)(D)(i)(I) (prongs 1 and 2) for the 

2008 ozone NAAQS in this proposed 

rulemaking and will act on these 

requirements in a separate action, but 

are proposing to approve prongs 3 and 

4 for the 2008 ozone NAAQS with this 

action. EPA approved all four interstate 

transport requirements of section 

110(a)(2)(D)(i) for the 1997 PM2.5

NAAQS in a direct final rulemaking on 

May 8, 2008 (73 FR 26019). 

a. Prong 1 (Significant Contribution to 

Nonattainment) and 2 (Interference 

With Maintenance) 

2006 PM2.5 NAAQS 

EPA has previously addressed the 

requirements of CAA section 

110(a)(2)(D)(i)(I) in past regulatory 

actions.15 EPA published the final 

Cross-State Air Pollution Rule (CSAPR) 

to address the first two elements of CAA 

section 110(a)(2)(D)(i)(I) in the eastern 

portion of the United States with respect 


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15See NOX SIP Call (63 FR 57371, Oct. 27, 1998); 

Clean Air Interstate Rule (CAIR) (70 FR 25172, May 

12, 2005); and Transport Rule or Cross-State Air 

Pollution Rule (76 FR 48208, Aug.8, 2011). 

16CAIR addressed the 1997 annual and 24-hour 

PM2.5 NAAQS, and the 1997 8-hour ozone NAAQS. 

It did not address the 2006 24-hour PM2.5 NAAQS. 

For more information on CAIR, see the July 30, 

2012 proposal for Arizona regarding interstate 

transport for the 2006 PM2.5 NAAQS (77 FR 44551, 

44552). In addition, South Dakota was not covered 

by either CAIR or CSAPR. 

17For our definition of both nonattainment and 

maintenance receptors, see the Technical Support 

Documents for the final CSAPR, including the 

‘‘Technical Support Document (TSD) for the 

Transport Rule—Air Quality Modeling,’’ (the 

proposal TSD) June 2010, and the ‘‘Air Quality 

Modeling Final Rule Technical Support 

Document,’’ (Air Quality Modeling TSD) June 2011, 

in the docket for this action. 

18Emissions Inventory Final Rule TSD, June 28, 

2011. 

20See Memorandum from William T. Harnett 

entitled ‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 2006 24- 

Hour Fine Particle (PM2.5) National Ambient Air 

Quality Standards (NAAQS),’’ September 25, 2009, 

available at http://www.epa.gov/ttn/caaa/t1/

memoranda/20090925_harnett_pm25_sip_

110a12.pdf. 

to the 2006 PM2.5 NAAQS, the 1997 

PM2.5 NAAQS, and the 1997 8-hour 

ozone NAAQS (76 FR 48208, Aug. 8, 

2011). CSAPR was intended to replace 

the earlier Clean Air Interstate Rule 

(CAIR) which was judicially 

remanded.16 See North Carolina v. EPA, 

531 F.3d 896 (D.C. Cir. 2008). On 

August 21, 2012, the U.S. Court of 

Appeals for the D.C. Circuit issued a 

decision vacating CSAPR, see EME 

Homer City Generation, L.P. v. E.P.A., 

696 F.3d 7 (D.C. Cir. 2012), and ordering 

the EPA to continue implementing CAIR 

in the interim. However, on April 29, 

2014, the U.S. Supreme Court reversed 

and remanded the D.C. Circuit’s ruling 

and upheld EPA’s approach in CSAPR. 

EPA v. EME Homer City Generation, 

L.P., 134 S. Ct. 1584 (U.S. 2014). 

South Dakota’s 2006 PM2.5 transport 

analysis contains the State’s assessment 

of the potential for emissions of PM2.5

and PM2.5 precursors from South Dakota 

sources to significantly contribute to 

nonattainment or interfere with 

maintenance of the 24-hour PM2.5

standards in any other state. The State 

considered distance, population data in 

South Dakota and other states, and 

transport modeling conducted for the 

CAIR in its analysis. The State’s analysis 

and all related documents can be found 

in the electronic docket for this action. 

To determine whether the CAA 

section 110(a)(2)(D)(i)(I) requirement is 

satisfied, EPA first determines whether 

a state’s emissions contribute 

significantly to nonattainment or 

interfere with maintenance in 

downwind areas. If a state is determined 

not to have such contribution or 

interference, then section 

110(a)(2)(D)(i)(I) does not require any 

changes to a SIP. EPA is proposing to 

determine that the existing SIP for 

South Dakota is adequate to satisfy the 

requirements of 110(a)(2)(D)(i)(I) of the 

CAA to address interstate transport 

requirements with regard to the 2006 

PM2.5 NAAQS. This proposed 

conclusion is based on air quality 

modeling originally conducted by EPA 

during the rulemaking process for 

CSAPR. This modeling quantified, for 

each individual state within the 

modeling domain (including South 

Dakota), contributions to downwind 

nonattainment and maintenance areas. 

In the CSAPR rulemaking (proposal 

and final) process, EPA explained how 

nonattainment and maintenance 

‘‘receptors’’ would be identified so that 

contribution to nonattainment and 

interference with maintenance could be 

assessed with respect to those 

receptors.17 The receptors were 

identified as all monitoring sites that 

had PM2.5 design values above the level 

of the 2006 24-hour PM2.5 NAAQS (35 

mg/m 3) for certain analytic years. Then 

EPA compiled an emissions inventory 

for the year 2005, the most recent year 

for which EPA had a complete national 

inventory at that time. In the CSAPR 

analysis, EPA also projected the 

inventory for a future year analysis for 

evaluating the interstate transport 

impacts in that future year.18 The air 

quality modeling, conducted for CSAPR, 

then evaluated interstate contributions 

from emissions in upwind states to 

downwind nonattainment and 

maintenance receptors for the 1997 

annual and 2006 24-hour PM2.5 NAAQS. 

See, Air Quality Modeling Final Rule 

Technical Support Document, June 2011 

(‘‘Air Quality Modeling TSD’’) for the 

CSAPR. Appendix D of the TSD details 

South Dakota’s contribution data for the 

2006 24-hour PM2.5 NAAQS for all 

downwind receptors. 

EPA then used air quality thresholds 

to identify linkages between upwind 

states and downwind nonattainment 

and maintenance receptors. As detailed 

in EPA’s Air Quality Modeling TSD, 

EPA used a threshold of 1% of the 

NAAQS to identify these linkages. Our 

analysis for CSAPR found that the 1% 

threshold captures a high percentage of 

the total pollution transport affecting 

downwind states for PM2.5.19 The air 

quality thresholds were therefore 

calculated as 1% of the NAAQS, which 

is 0.35 mg/m3 for the 2006 24-hour PM2.5

NAAQS. EPA found states projected to 

exceed this air quality threshold at one 

or more downwind nonattainment 

receptors emissions to be linked to all 

such receptors, and therefore subject to 

further evaluation. EPA did not conduct 

further evaluation of emissions from 

states that were not linked to any 

downwind receptors. 

The methodology and modeling used 

to analyze the impact of emissions from 

South Dakota and to identify potential 

linkages between South Dakota and 

downwind nonattainment and 

maintenance receptors with respect to 

the 1997 and 2006 PM2.5 NAAQS is 

described in further detail in the Air 

Quality Modeling TSD, which is 

available in the docket for this action. 

In its submittal, South Dakota 

considered factors we have generally 

found to be relevant for assessing 

interstate transport for western states 

that were not within the modeling 

domain for CSAPR.20 However, South 

Dakota was within the modeling domain 

for CSAPR. As we consider the 

modeling conducted during the 

development of CSAPR to contain the 

most accurate and comprehensive 

technical assessment of PM2.5 interstate 

transport for those states within its 

modeling domain, including South 

Dakota, we examined that analysis to 

assess transport of PM2.5 emissions from 

South Dakota to other states. 

The air quality modeling performed 

during the development of CSAPR 

found that the impact from South 

Dakota emissions on both downwind 

nonattainment and maintenance 

receptors was less than the 1% 

threshold for the 2006 PM2.5 NAAQS. 

Therefore, EPA did not find emissions 

from South Dakota linked to any 

downwind nonattainment or 

maintenance receptors for the 2006 24- 

hour PM2.5 NAAQS. 

Below is a summary of the air quality 

modeling results for South Dakota from 

Table IV–9 of EPA’s Air Quality 

Modeling TSD regarding South Dakota’s 

largest contribution to both downwind 

PM2.5 nonattainment and maintenance 

areas. 


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21 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements Required 

Under Sections 110(a)(1) and 110(a)(2) for the 2008 

Lead (Pb) National Ambient Air Quality Standards 

(NAAQS).’’ Steve Page, OAQPS Director, October 

14, 2011, at pg 8. 

22Pollution control equipment is being installed 

at the Otter Tail Power Company—Big Stone 1, as 

BART in accordance with regional haze 

requirements. See 77 FR 24845, April 26, 2012. 

23EPA did not calculate a 2010 one-hour NO2

design value in the state of Nebraska for the 2010– 

2012 design value period. 

24http://www.epa.gov/airtrends/values.html. 

TABLE 1—SOUTH DAKOTA’S LARGEST CONTRIBUTION TO DOWNWIND PM2.5 NONATTAINMENT AND MAINTENANCE AREAS

NAAQS 

Air quality 

threshold 

(μg/m3) 

Largest downwind contribution to nonattainment 

(μg/m 3) 

Largest downwind contribution to 

maintenance 

(μg/m 3) 

2006 24-hour PM2.5 NAAQS (35 μg/m 3) ..................................................................................... 0.35 0.10 0.17 

Based on this analysis, we propose to 

approve South Dakota’s submission 

certifying that its SIP meets the 

requirements of section 110(a)(2)(D)(i)(I) 

for the 2006 PM2.5 NAAQS. 

2008 Pb NAAQS 

South Dakota’s analysis of potential 

interstate transport for the 2008 Pb 

NAAQS includes considerations of Pb 

emissions, the distance of Pb sources in 

South Dakota to nearby states, and the 

lack of Pb nonattainment areas near the 

State’s border. The State’s analysis is 

available in the docket for this action. 

As noted in our October 14, 2011 Pb 

Infrastructure Guidance, there is a sharp 

decrease in Pb concentrations, at least in 

the coarse fraction, as the distance from 

a Pb source increases. For this reason, 

EPA found that the ‘‘requirements of 

subsection (2)(D)(i)(I) (prongs 1 and 2) 

could be satisfied through a state’s 

assessment as to whether or not 

emissions from Pb sources located in 

close proximity to their state borders 

have emissions that impact the 

neighboring state such that they 

contribute significantly to 

nonattainment or interfere with 

maintenance in that state.’’ 21 In that 

guidance document, EPA further 

specified that any source appeared 

unlikely to contribute significantly to 

nonattainment unless it was located less 

than 2 miles from a state border and 

emitted at least 0.5 tons per year of Pb. 

South Dakota’s 110(a)(2)(D)(i)(I) analysis 

specifically noted that there are no 

sources in the State that meet both of 

these criteria. EPA concurs with the 

State’s analysis and conclusion that no 

South Dakota sources have the 

combination of Pb emission levels and 

proximity to nearby nonattainment or 

maintenance areas to contribute 

significantly to nonattainment in or 

interfere with maintenance by other 

states for this NAAQS. South Dakota’s 

SIP is therefore adequate to ensure that 

such impacts do not occur. We are 

proposing to approve South Dakota’s 

submission in that its SIP meets the 

requirements of section 110(a)(2)(D)(i) 

for the 2008 Pb NAAQS. 

2010 NO2 NAAQS 

South Dakota’s 2010 NO2 transport 

analysis includes considerations of the 

low level of NO2 emissions in the State, 

and specifically notes that the State’s 

main source of NO2 emissions is in the 

process of installing pollution control 

equipment that will decrease its NO2

emissions by 76%.22 South Dakota also 

notes that there are no designated 

nonattainment areas for the 2010 NO2

NAAQS, and that the only area that 

might be considered (according to South 

Dakota) as a potential maintenance area 

in the U.S. is hundreds of miles from 

South Dakota, and in the opposite 

direction of that in which prevailing 

winds travel (i.e., west to east) in the 

western U.S. The State’s analysis is 

available in the docket for this action. 

EPA concurs with the technical 

components of South Dakota’s 2010 NO2

transport analysis. In addition to the 

factors considered in the State’s 

analysis, EPA also notes that the highest 

monitored NO2 design values in each 

state bordering South Dakota are 

significantly below the NAAQS (see 

Table 2, below).23 This fact further 

supports the State’s contention that 

significant contribution to 

nonattainment or interference with 

maintenance of the NO2 NAAQS from 

South Dakota is very unlikely based on 

the lack of relatively nearby areas with 

high NO2. 

TABLE 2—HIGHEST MONITORED 2010 NO2 NAAQS DESIGN VALUES

State 2010–2012 Design value Percent of NAAQS (100 ppb) 

Iowa ......................................................................................................... 42 ppb ............................................ 42%. 

Minnesota ................................................................................................ 46 ppb ............................................ 46%. 

Montana ................................................................................................... 42 ppb ............................................ 42%. 

North Dakota ........................................................................................... 39 ppb ............................................ 39%. 

Nebraska ................................................................................................. No Data ......................................... No Data. 

Wyoming .................................................................................................. 46 ppb ............................................ 46%. 

* Source: http://www.epa.gov/airtrends/values.html 

In addition to the monitored levels of 

NO2 in states bordering South Dakota 

being well below the NAAQS, South 

Dakota’s highest design value from 

2011–2013 was also significantly below 

this NAAQS (37 ppb).24

Based on all of these factors, EPA 

concurs with the State’s conclusion that 

South Dakota does not contribute 

significantly to nonattainment or 

interfere with maintenance of the 2010 

NO2 NAAQS in other states. EPA is 

therefore proposing to determine that 

South Dakota’s SIP includes adequate 

provisions to prohibit sources or other 

emission activities within the State from 

emitting NO2 in amounts that will 

contribute significantly to 

nonattainment in or interfere with 

maintenance by any other state with 

respect specifically to the NO2 NAAQS. 


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b. Prongs 3 (PSD) and 4 (Visibility) 

South Dakota’s certifications with 

regard to prongs 3 and 4 of element (D) 

vary by pollutant. Each certification can 

be found in the docket for this action. 

With regard to the PSD portion of 

section 110(a)(2)(D)(i)(II), this 

requirement may be met by a state’s 

confirmation in an infrastructure SIP 

submission that new major sources and 

major modifications in the state are 

subject to a SIP-approved PSD program 

that satisfactorily implements the 

associated NAAQS. As discussed in 

more detail with respect to section 

110(a)(2)(C), finalization of our 

proposed approval of certain PSDrelated revisions in this action will 

ensure that South Dakota’s SIPapproved PSD program meets current 

requirements for the 2006 PM2.5, 2008 

ozone, 2008 Pb, and 2010 NO2 NAAQS. 

Accordingly, in this action EPA is 

proposing to approve the infrastructure 

SIP submission as meeting the 

applicable requirements of prong 3 of 

section 110(a)(2)(D)(i) for the 2006 

PM2.5, 2008 ozone, 2008 Pb, and 2010 

NO2 NAAQS. 

With regard to the visibility portion of 

section 110(a)(2)(D)(i)(II), this 

requirement may be satisfied by a state’s 

regional haze SIP having been approved 

by EPA as meeting all current 

obligations. South Dakota submitted a 

regional haze SIP to EPA on January 21, 

2011, and submitted an amendment to 

the SIP on September 19, 2011. EPA 

approved South Dakota’s Regional Haze 

SIP on April 26, 2012 (77 FR 24845). 

The EPA is proposing to find that as 

a result of the prior approval of the 

South Dakota regional haze SIP, the 

South Dakota SIP contains adequate 

provisions to address 110(a)(2)(D)(i)(II) 

visibility requirements with respect to 

the 2006 PM2.5, 2008 Pb, 2008 ozone, 

and 2010 NO2 NAAQS. Therefore, we 

are proposing to approve the South 

Dakota SIP as meeting the requirements 

of CAA section 110(a)(2)(D)(i)(II) as it 

applies to visibility for the 2006 PM2.5, 

2008 Pb, 2008 ozone, and 2010 NO2

NAAQS. 

5. Interstate and International 

transport provisions: CAA section 

110(a)(2)(D)(ii) requires SIPs to include 

provisions ensuring compliance with 

the applicable requirements of CAA 

sections 126 and 115 (relating to 

interstate and international pollution 

abatement). Specifically, CAA section 

126(a) requires new or modified major 

sources to notify neighboring states of 

potential impacts from the source. 

Section 126(a) requires notification to 

affected, nearby states of major 

proposed new (or modified) sources. 

Sections 126(b) and (c) pertain to 

petitions by affected states to the 

Administrator regarding sources 

violating the ‘‘interstate transport’’ 

provisions of section 110(a)(2)(D)(i). 

Section 115 similarly pertains to 

international transport of air pollution. 

South Dakota’s SIP-approved PSD 

program incorporates by reference the 

federal PSD program at 40 CFR 52.21. 

However, South Dakota separately 

implements public notice requirements 

by incorporating by reference (with 

certain modifications) 40 CFR 51.166(q). 

In particular, section 51.166(q)(2)(iv), 

which requires notice to states whose 

lands may be affected by the emissions 

of sources subject to PSD, satisfies the 

notice requirement of section 126(a). 

South Dakota has no pending 

obligations under sections 126(c) or 

115(b). Accordingly, South Dakota’s SIP 

currently meets the requirements of 

those sections. The SIP therefore meets 

the requirements of 110(a)(2)(D)(ii) for 

the 2006 PM2.5, 2008 Pb, 2008 ozone, 

and 2010 NO2 NAAQS. 

6. Adequate resources: Section 

110(a)(2)(E)(i) requires states to provide 

necessary assurances that the state will 

have adequate personnel, funding, and 

authority under state law to carry out 

the SIP (and is not prohibited by any 

provision of federal or state law from 

carrying out the SIP or portion thereof). 

Section 110(a)(2)(E)(ii) also requires 

each state to comply with the 

requirements respecting state boards 

under CAA section 128. Section 

110(a)(2)(E)(iii) requires states to 

‘‘provide necessary assurances that, 

where the State has relied on a local or 

regional government, agency, or 

instrumentality for the implementation 

of any [SIP] provision, the State has 

responsibility for ensuring adequate 

implementation of such [SIP] 

provision.’’ 

a. Sub-Elements (i) and (iii): Adequate 

Personnel, Funding, and Legal 

Authority Under State Law To Carry 

Out Its SIP, and Related Issues 

SDCL 34A–1–57 through 34A–1–60 

provide adequate authority for the State 

of South Dakota and the DENR to carry 

out its SIP obligations with respect to 

the 1997 and 2006 PM2.5, 2008 Pb, 2008 

ozone, and 2010 NO2 NAAQS. The State 

receives sections 103 and 105 grant 

funds through its Performance 

Partnership Grant from EPA along with 

required state matching funds to 

provide funding necessary to carry out 

South Dakota’s SIP requirements. South 

Dakota’s resources meet the 

requirements of CAA section 

110(a)(2)(E). The regulations cited by 

South Dakota in their certifications and 

contained within this docket also 

provide the necessary assurances that 

the State has responsibility for adequate 

implementation of SIP provisions by 

local governments. Therefore, we 

propose to approve South Dakota’s SIP 

as meeting the requirements of section 

110(a)(2)(E)(i) and (E)(iii) for the 1997 

and 2006 PM2.5, 2008 Pb, 2008 ozone, 

and 2010 NO2 NAAQS. 

b. Sub-Element (ii): State Boards 

Section 110(a)(2)(E)(ii) requires each 

state’s SIP to contain provisions that 

comply with the requirements of section 

128 of the CAA. That provision contains 

two explicit requirements: (i) That any 

board or body which approves permits 

or enforcement orders under the CAA 

shall have at least a majority of members 

who represent the public interest and do 

not derive a significant portion of their 

income from persons subject to such 

permits and enforcement orders; and (ii) 

that any potential conflicts of interest by 

members of such board or body or the 

head of an executive agency with 

similar powers be adequately disclosed. 

On June 16, 2014, EPA received a 

submission from the State of South 

Dakota to address the requirements of 

section 128. The submission revises 

language already in the EPA approved 

SIP at ARSD 74:09, Procedures Board of 

Minerals and Environment, to address 

conflict of interest requirements in 

section 128(a)(2) and adds language in 

SDCL 1–40–25.1 to address board 

composition requirements in section 

128(a)(1). We propose to approve that 

June 16, 2014 submission as meeting the 

requirements of section 128 for the 

reasons explained in more detail below. 

Because this revision will meet the 

requirements of section 128, we also 

propose to approve the State’s 

infrastructure SIP submissions for 

element 110(a)(2)(E)(ii). The State made 

these infrastructure SIP submissions in 

connection with the 1997 and 2006 

PM2.5, 2008 Pb, 2008 ozone, and 2010 

NO2 NAAQS, but section 128 is not 

NAAQS-specific and once the State has 

met the requirements of section 128 that 

is sufficient for purposes of 

infrastructure SIP requirements for all of 

these NAAQS. 

We are proposing to approve the 

State’s June 16, 2014 SIP submission as 

meeting the requirements of section 128 

because we believe that it complies with 

the statutory requirements and is 

consistent with EPA’s guidance 

recommendations concerning section 

128. In 1978, EPA issued a guidance 

memorandum recommending ways 

states could meet the requirements of 

section 128, including suggested 

interpretations of certain key terms in 


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25Memorandum from David O. Bickart, Deputy 

General Counsel, to Regional Air Directors, 

Guidance to States for Meeting Conflict of Interest 

Requirements of Section 128 (Mar. 2, 1978). 

26H.R. Rep. 95–564 (1977), reprinted in 3 

Legislative History of the Clean Air Act 

Amendments of 1977, 526–27 (1978). 

section 128.25 In this proposal notice, 

we discuss additional relevant aspects 

of section 128. We first note that, in the 

conference report on the 1977 

amendments to the CAA, the conference 

committee stated, ‘‘[i]t is the 

responsibility of each state to determine 

the specific requirements to meet the 

general requirements of [section 

128].’’ 26 This legislative history 

indicates that Congress intended states 

to have some latitude in adopting SIP 

provisions with respect to section 128, 

so long as states meet the statutory 

requirements of the section. We also 

note that Congress explicitly provided 

in section 128 that states could elect to 

adopt more stringent requirements, as 

long as the minimum requirements of 

section 128 are met. 

In implementing section 128, the EPA 

has identified a number of key 

considerations relevant to evaluation of 

a SIP submission. EPA has identified 

these considerations in the 1978 

guidance and in subsequent rulemaking 

actions on SIP submissions relevant to 

section 128, whether as SIP revisions for 

this specific purpose or as an element of 

broader actions on infrastructure SIP 

submissions for one or more NAAQS. 

Each state must meet the 

requirements of section 128 through 

provisions that EPA approves into the 

state’s SIP and are thus made federally 

enforceable. Section 128 explicitly 

mandates that each SIP ‘‘shall contain 

requirements’’ that satisfy subsections 

128(a)(1) and 128(a)(2). A mere narrative 

description of state statutes or rules, or 

of a state’s current or past practice in 

constituting a board or body and in 

disclosing potential conflicts of interest, 

is not a requirement contained in the 

SIP and does not satisfy the plain text 

of section 128. 

Subsection 128(a)(1) applies only to 

states that have a board or body that is 

composed of multiple individuals and 

that, among its duties, approves permits 

or enforcement orders under the CAA. 

It does not apply in states that have no 

such multi-member board or body that 

performs these functions, and where 

instead a single head of an agency or 

other similar official approves permits 

or enforcement orders under the CAA. 

This flows from the text of section 128, 

for two reasons. First, as subsection 

128(a)(1) refers to a majority of members 

of the board or body in the plural, we 

think it reasonable to read subsection 

128(a)(1) as not creating any 

requirements for an individual with sole 

authority for approving permits or 

enforcement orders under the CAA. 

Second, subsection 128(a)(2) explicitly 

applies to the head of an executive 

agency with ‘‘similar powers’’ to a board 

or body that approves permits or 

enforcement orders under the CAA, 

while subsection 128(a)(1) omits any 

reference to heads of executive agencies. 

We infer that subsection 128(a)(1) 

should not apply to heads of executive 

agencies who approve permits or 

enforcement orders. 

Subsection 128(a)(2) applies to all 

states, regardless of whether the state 

has a multi-member board or body that 

approves permits or enforcement orders 

under the CAA. Although the title of 

section 128 is ‘‘State boards,’’ the 

language of subsection 128(a)(2) 

explicitly applies where the head of an 

executive agency, rather than a board or 

body, approves permits or enforcement 

orders. In instances where the head of 

an executive agency delegates his or her 

power to approve permits or 

enforcement orders, or where statutory 

authority to approve permits or 

enforcement orders is nominally vested 

in another state official, the requirement 

to adequately disclose potential 

conflicts of interest still applies. In other 

words, EPA interprets section 128(a)(2) 

to apply to all states, regardless of 

whether a state board or body approves 

permits or enforcement orders under the 

CAA or whether a head of a state agency 

(or his/her delegees) performs these 

duties. Thus, all state SIPs must contain 

provisions that require adequate 

disclosure of potential conflicts of 

interest in order to meet the 

requirements of subsection 128(a)(2). 

The question of which entities or parties 

must be subject to such disclosure 

requirements must be evaluated by 

states and EPA in light of the specific 

facts and circumstances of each state’s 

regulatory structure. 

A state may satisfy the requirements 

of section 128 by submitting for 

adoption into the SIP a provision of 

state law that closely tracks or mirrors 

the language of the applicable 

provisions of section 128. A state may 

take this approach in two ways. First, 

the state may adopt the language of 

subsections 128(a)(1) and 128(a)(2) 

verbatim. Under this approach, the state 

will be able to meet the continuing 

requirements of section 128 without any 

additional, future SIP revisions, even if 

the state adds or removes authority, 

either at the state level or local level, to 

individual or to boards or bodies to 

approve permits or enforcement orders 

under the CAA so long as the state 

continues to meet section 128 

requirements. Second, the state may 

modify the language of subsections 

128(a)(1) (if applicable) and 128(a)(2) to 

name the particular board, body, or 

individual official with approval 

authority. In this case, if the state 

subsequently modifies that authority, 

the state may have to submit a 

corresponding SIP revision to meet the 

continuing requirements of section 128. 

If the state chooses to not mirror the 

language of section 128, the state may 

adopt state statutes and/or regulations 

that functionally impose the same 

requirements as those of section 128, 

including definitions for key terms such 

as those recommended in EPA’s 1978 

guidance. While any of these 

approaches would meet the minimum 

requirements of section 128, the statute 

also explicitly authorizes states to adopt 

more stringent requirements, for 

example to impose additional 

requirements for recusal of board 

members from decisions, above and 

beyond the explicit board composition 

requirements. Although such recusal 

alone does not meet the requirements of 

section 128, states have the authority to 

require that over and above the explicit 

requirements of section 128. These 

approaches give states flexibility in 

implementing section 128, while still 

ensuring consistency with the statute. 

EPA has evaluated the June 16, 2014 

submission from the State in light of the 

requirements of section 128 and these 

key considerations. South Dakota state 

law establishes a nine-member Board of 

Minerals and Environment (BME) 

(SDCL 1–40–25). Under state law, air 

permits and enforcement orders that are 

issued by the Secretary can be appealed 

to the BME in a contested case hearing 

(SDCL 34A–1–21 (permits), 34A–1–46, 

34A–1–48 (orders)). In addition, the 

BME has authority to hold contested 

case hearings on air permits on its own 

initiative (SDCL 34A–1–21), and has 

certain direct enforcement authorities 

(SDCL 34A–1–40, 34A–1–44). As EPA 

has explained in other rulemaking 

actions, e.g., 78 FR 32613 (May 31, 

2013), we interpret section 128(a)(1) to 

mean that boards that are the potential 

final decisionmaker via permit and 

enforcement order appeals ‘‘approve’’ 

those permits and enforcement orders. 

For example, by being the final 

decisionmaker with respect to questions 

such as whether a source receives a 

permit and the specific contents of such 

a permit, the board is an entity that 

approves the permit within the meaning 

of 128(a)(1). Thus, the BME is subject to 

the requirements of 128(a)(1). South 

Dakota’s June 16, 2014 submission 


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includes a statute, SDCL 1–40–25.1, 

which provides that the BME must be 

composed in conformance with 

requirements of section 128 of the CAA 

for all permits and enforcement orders 

initiated under South Dakota’s air 

pollution control authority. Thus, the 

State has submitted a legally binding 

requirement for inclusion into the SIP 

that requires the BME to be comprised 

of a majority of members that represent 

the public interest and do not receive a 

substantial portion of their income from 

parties subject to permit requirements or 

enforcement orders under the CAA. We 

propose to approve this submission as 

satisfying the requirements of 

subsection 128(a)(1). 

To meet the requirements of 

subsection 128(a)(2), the State’s June 16, 

2014 submittal includes disclosure 

requirements applying to members of 

the BME. Members of the BME must 

disclose ‘‘potential conflicts of interest’’ 

as defined in ARSD 74:09:01:21 in a 

contested case proceeding on the record 

at the initiation of the hearing, or during 

the hearing if they become aware of the 

existence of a potential conflict of 

interest. In addition, members with a 

‘‘conflict of interest’’ as defined in 

ARSD 74:09:01:20 must make a 

statement of recusal on the record at the 

initiation of the hearing and may not 

participate in board discussions or 

decision-making regarding that 

proceeding. Conflicts of interest are 

broadly defined in ARSD 74:09:01:20 as 

any ‘‘board member who is personally 

related to a party involved in a 

contested case hearing by two degrees of 

consanguinity, who has direct financial 

interest in a party involved in a 

contested case hearing through 

employment or by contract, or whose 

spouse is employed by or directly 

contracts with a party involved in a 

contested case hearing.’’ Furthermore, a 

potential conflict of interest is defined 

in ARSD 74:09:01:21 as ‘‘an indirect 

financial interest, or a personal 

relationship or another interest in a 

party involved in a contested case 

hearing or enforcement hearing that is 

different from that of the general public, 

that a reasonable person would believe 

might result in bias or prejudgment of 

a contested case hearing.’’ EPA thinks 

these definitions of ‘‘conflict of interest’’ 

and ‘‘potential conflict of interest,’’ 

taken in tandem, are sufficiently broad 

to address the types of conflicts of 

interest that should be disclosed under 

128(a)(2). While not precisely consistent 

with the types of conflicts addressed in 

our 1978 guidance for section 128, in 

some ways South Dakota’s provisions 

are in fact broader. In addition, we think 

that disclosure on the record at the start 

of a hearing is an adequate form of 

disclosure. Such disclosure will provide 

public access to the relevant 

information about conflicts of interest 

and memorialize that information. 

EPA’s review of the State’s June 16, 

2014 submission has raised one issue 

that warrants further evaluation. Section 

128(a)(2) requires that a state’s SIP 

provide for adequate disclosure of 

conflicts of interest by ‘‘members of 

such board or body or the head of an 

executive agency with similar powers.’’ 

The use of the disjunctive ‘‘or’’ between 

‘‘board or body’’ and ‘‘head of an 

executive agency’’ results in ambiguity 

concerning whether merely one or both 

of these parties must disclose conflicts 

of interest, and if it is only one of these 

entities, which one? This ambiguity is 

relevant in the case of the submission 

from the State because under state law 

included within such submission, only 

the members of the BME are required to 

disclose conflicts of interest, not the 

head of the executive agency. In order 

to determine whether this is sufficient 

for purposes of meeting the 

requirements of section 128(a)(2), we 

have evaluated the statutory language 

more closely. 

First, the term ‘‘or’’ can be interpreted 

as ‘‘one or the other, but not necessarily 

both,’’ or it can be interpreted as ‘‘and.’’ 

Although the word ‘‘or’’ could be read 

to mean ‘‘and’’ in some circumstances, 

we believe that in this instance it is 

appropriate to give the word ‘‘or’’ its 

most straightforward meaning. In 

isolation, it could seem unreasonable to 

give ‘‘or’’ the first meaning, as that 

would allow a state to require adequate 

disclosure of conflict of interest by 

either the members of the state board or 

the head of an agency, without regard to 

whether that disclosure requirement 

applies to the entity that makes the final 

permit or enforcement order decision. 

To read section 128(a)(2) to require 

disclosure by the entity that is not the 

actual final decisionmaker appears 

logically inconsistent and contrary to 

the overall purposes of section 128. EPA 

believes that the purpose of section 

128(a)(2) is to assure that conflicts of 

interest are disclosed by the entity 

making the permit or enforcement order 

decision, and requiring this of the 

ultimate decisionmaker rather than 

other parties that may be involved in the 

process. 

As discussed above, under South 

Dakota law all members of the BME 

have to disclose conflicts of interest in 

specified ways that we believe are 

adequate. Under the structure of the 

State’s program, the Secretary makes 

certain decisions such as the issuance of 

air permits and enforcement orders. 

However, under state law these permits 

and enforcement orders issued by the 

Secretary can be appealed to the BME in 

a contested case hearing (SDCL 34A–1– 

21 (permits), 34A–1–46, 34A–1–48 

(orders)). In addition, the BME has 

authority to hold contested case 

hearings on air permits on its own 

initiative (SDCL 34A–1–21), and has 

certain direct enforcement authorities 

(SDCL 34A–1–40, 34A–1–44). Given 

this division of authority in the State, 

we believe that the BME is functionally 

the final decisionmaker with respect to 

permits and enforcement orders in 

South Dakota, and thus the disclosure of 

conflicts of interest by members of the 

BME is necessary to meet the 

requirements of section 128(a)(2). 

Naturally, a state may elect to require 

disclosure of conflicts of interest by 

other state officials and employees as 

well, and this would be fully consistent 

with the explicit reservation of authority 

for states to impose more stringent 

requirements than those imposed by 

section 128. 

For the foregoing reasons, the EPA 

believes that the June 16, 2014 

submission from South Dakota contains 

provisions that meet the requirements of 

section 128(a)(1) and section 128(a). 

Accordingly, we are proposing approval 

of that submission and also proposing 

approval of the infrastructure SIP 

submission as meeting the requirements 

of section 128. 

7. Stationary source monitoring 

system: Section 110(a)(2)(F) requires: (i) 

The installation, maintenance, and 

replacement of equipment, and the 

implementation of other necessary 

steps, by owners or operators of 

stationary sources to monitor emissions 

from such sources, (ii) Periodic reports 

on the nature and amounts of emissions 

and emissions-related data from such 

sources, and (iii) Correlation of such 

reports by the state agency with any 

emission limitations or standards 

established pursuant to the Act, which 

reports shall be available at reasonable 

times for public inspection. 

The South Dakota statutory provisions 

listed in the State’s certifications (SDCL 

34A–1–6 and SDCL 34A–1–12) and 

contained within this docket provide 

authority to establish a program for 

measurement and testing of sources, 

including requirements for sampling 

and testing. South Dakota’s SIP 

approved continuous emissions 

monitoring system rules (ARSD 74:36:13 

and contained within this docket) 

require facilities to monitor and report 

emission data. ARSD 74:36:04:15(10), 

contents of operating permit, requires 

operating permits for minor sources to 


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27Section 303 of CAA as modified in 1990 

substituted the term ‘‘public health or welfare, or 

the environment’’ for ‘‘the health of persons,’’ 

eliminated the requirement for state or local 

inaction as a prerequisite to EPA initiating action, 

and lengthened the duration of administrative 

orders from 24 hours to 60 days. The Senate Report 

on the 1990 Amendments explained that: 

These amendments to section 303 of the Act, as 

well as parallel (sic) amendments to section 113, 

have several purposes. The (sic) amendments 

broaden the Administrator’s (sic) authority to issue 

emergency orders to abate threats to welfare and the 

environment, in addition to the authority to 

respond to threats to ‘‘the health of persons.’’ In 

addition, the amendments eliminate the 24- to 48- 

hour time limit on the effectiveness of emergency 

orders. These changes are necessary to enable the 

Administrator to address air pollution emergencies 

in an adequate manner, and to conform the 

Administrator’s emergency authority under the Act 

to emergency authorities under other environmental 

laws. See, TSCA section 208, CERCLA section 106, 

RCRA section 7003, and CWA section 504. 

Similarly, the deletion of the requirement that the 

Administrator may not bring suit unless State or 

local authorities have failed to act conforms the Act 

to other environmental laws. 

Broadening section 301 to include harm to the 

environment is important to enable EPA to address 

emergency threats to ecosystems in instances where 

there is no readily demonstrable immediate threat 

to human health. For example, toxic emissions 

might be blowing downwind from a facility into an 

undeveloped natural area and threatening to impair 

that area’s ecosystem. This amendment will allow 

EPA to order the plant to take necessary steps to 

eliminate the threat to flora and fauna. Deleting the 

unrealistically short time limits on the duration of 

orders is necessary to ensure that these orders are 

a viable enforcement tool. In order to protect State 

interests and to prevent duplication of effort, this 

section requires that the Administrator consult with 

the State and local authorities before taking any 

action. The enforcement provision, section 303(b), 

has been deleted as unnecessary because emergency 

orders have been made enforceable under section 

113. 

S. Rep. No. 101–228, 101 Cong., 1st Sess. 370. 

EPA’s 1999 guidance on section 303 contains 

additional information regarding the legislative 

history of this section. While the guidance indicates 

it ‘‘is intended to be used by EPA as internal 

guidance only and does not establish any 

substantive or procedural rights’’ we include the 

guidance in the proposed docket for this action as 

background information. ‘‘Transmittal Memo and 

Guidance Document on Section 303 of the Clean 

Air Act,’’ Eric. V. Schaeffer, Director, Office of 

Regulatory Enforcement, EPA Office of Enforcement 

and Compliance Assurance (April 1, 1999). 

28 2013 Infrastructure SIP Guidance, pp. 47–50. 

include monitoring and related record 

keeping and reporting requirements. 

Reports contain the quantity of 

hazardous air pollutants, in tons, 

emitted for each 12-month period in the 

reporting period and supporting 

documentation. Operating permits for 

minor sources must comply with 

emission limits and other requirements 

of the Act (ARSD 74:36:04:04 and ARSD 

74:36:04:15). Additionally, ARSD 

74:36:05:16.01(9) is applicable regarding 

data from sources with title V permits. 

South Dakota has an approved title V 

program (61 FR 2720, Jan. 29, 1996) and 

the definition of applicable 

requirements for a Part 70 source has 

been approved into its SIP at ARSD 

74:36:01:05. This re-enforces a facility’s 

record keeping and reporting emissions 

data responsibilities under title V 

permitting, even though the title V 

program is not approved into the SIP. 

Additionally, South Dakota is 

required to submit emissions data to the 

EPA for purposes of the National 

Emissions Inventory (NEI). The NEI is 

the EPA’s central repository for air 

emissions data. The EPA published the 

Air Emissions Reporting Rule (AERR) 

on December 5, 2008, which modified 

the requirements for collecting and 

reporting air emissions data (73 FR 

76539). The AERR shortened the time 

states had to report emissions data from 

17 to 12 months, giving states one 

calendar year to submit emissions data. 

All states are required to submit a 

comprehensive emissions inventory 

every three years and report emissions 

for certain larger sources annually 

through the EPA’s online Emissions 

Inventory System. States report 

emissions data for the six criteria 

pollutants and their associated 

precursors—nitrogen oxides, sulfur 

dioxide, ammonia, lead, carbon 

monoxide, particulate matter, and 

volatile organic compounds. Many 

states also voluntarily report emissions 

of hazardous air pollutants. South 

Dakota made its latest update to the NEI 

on January 9, 2014. EPA compiles the 

emissions data, supplementing it where 

necessary, and releases it to the general 

public through the Web site http://

www.epa.gov/ttn/chief/

eiinformation.html. 

Based on the analysis above, we 

propose to approve the South Dakota 

SIP as meeting the requirements of CAA 

section 110(a)(2)(F) for the 1997 and 

2006 p.m.2.5, 2008 Pb, 2008 ozone, and 

2010 NO2 NAAQS. 

8. Emergency powers: Section 

110(a)(2)(G) of the CAA requires 

infrastructure SIPs to ‘‘provide for 

authority comparable to that in [CAA 

section 303] and adequate contingency 

plans to implement such authority.’’ 

Section 303 reads as follows: 

Notwithstanding any other provision of this 

chapter, the Administrator, upon receipt of 

evidence that a pollution source or 

combination of sources (including moving 

sources) is presenting an imminent and 

substantial endangerment to public health or 

welfare, or the environment, may bring suit 

on behalf of the United States in the 

appropriate United States district court to 

immediately restrain any person causing or 

contributing to the alleged pollution to stop 

the emission of air pollutants causing or 

contributing to such pollution or to take such 

other action as may be necessary. If it is not 

practicable to assure prompt protection of 

public health or welfare or the environment 

by commencement of such a civil action, the 

Administrator may issue such orders as may 

be necessary to protect public health or 

welfare or the environment. Prior to taking 

any action under this section, the 

Administrator shall consult with appropriate 

State and local authorities and attempt to 

confirm the accuracy of the information on 

which the action proposed to be taken is 

based. Any order issued by the Administrator 

under this section shall be effective upon 

issuance and shall remain in effect for a 

period of not more than 60 days, unless the 

Administrator brings an action pursuant to 

the first sentence of this section before the 

expiration of that period. Whenever the 

Administrator brings such an action within 

the 60-day period, such order shall remain in 

effect for an additional 14 days or for such 

longer period as may be authorized by the 

court in which such action is brought. 

Thus, the EPA Administrator has 

authority to bring suit to immediately 

restrain an air pollution source that 

presents an imminent and substantial 

endangerment to public health or 

welfare, or the environment. If such 

action may not practicably assure 

prompt protection, then the 

Administrator has authority to issue 

temporary administrative orders to 

protect the public health or welfare, or 

the environment, and such orders can 

be extended if EPA subsequently files a 

civil suit. The 1990 Amendments to the 

Act modified Section 303.27

EPA’s 2013 Infrastructure SIP 

Guidance (for the 2008 ozone, 2010 

NO2, 2010 sulfur dioxide, and all future 

NAAQS), represents EPA’s most recent 

guidance, which we’ve cited earlier in 

this notice given its broad applicability, 

states that the best practice for states is 

to submit, for inclusion in the SIP, the 

statutory or regulatory provisions that 

provide authority comparable to CAA 

section 303 or to cite and include a copy 

of such provisions, without including 

them in the SIP, with a narrative of how 

they meet the requirements of section 

110(a)(2)(G).28

We propose to find that South 

Dakota’s Infrastructure SIP Submittals 

and certain State statutes provide for 

authority for the State comparable to 

that granted to the EPA Administrator to 

act in the face of an imminent and 

substantial endangerment to public’s 

health or welfare, or the environment. 

South Dakota’s SIP submittals with 

regard to the section 110(a)(2)(G) 

emergency order requirements explain 

that: 

SDCL section 34A–1–45 (Emergency order 

for immediate reduction or discontinuance of 

emissions) is comparable to Section 303 of 

the Clean Air Act and provides that ‘‘if the 

Secretary of the Department of Environment 

and Natural Resources finds that any person 

is causing or contributing to air pollution and 

that such pollution creates an emergency by 


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29We note that the South Dakota Legislature’s 

compilation of statutes indicates that SDCL section 

34A–1–45 reads slightly differently from the 

language that appears in the infrastructure SIP 

submission, and additionally, does not contain the 

last sentence of the paragraph. This proposed action 

considers the statute as it appears on the State’s 

compilation, which reads as follows: ‘‘34A–1–45. 

Emergency order for immediate reduction or 

discontinuance of emissions. If the secretary finds 

that any person is causing or contributing to air 

pollution and that such pollution creates an 

emergency by causing imminent danger to human 

health or safety and requires immediate action to 

protect human health or safety, the secretary shall 

order the person to reduce or discontinue 

immediately the emission of air contaminants. The 

emergency order is effective immediately on service 

upon the person responsible for the emission, and 

any person to whom such an order is directed shall 

comply with the order immediately.’’ (Available 

online at: http://legis.sd.gov/Statutes/Codified_

Laws/DisplayStatute.aspx?Type=Statute& 

Statute=34A-1-45, accessed October 8, 2014). 

30October 29, 2014 conference call with Brian 

Gustafson, Kyrik Rombough, Steven Blair, and 

Roxanne Giedd from the State of South Dakota and 

Carl Daly, Monica Morales, Sara Laumann, and 

Abby Fulton from EPA Region 8 regarding feedback 

on EPA’s interpretation of South Dakota’s authority 

comparable to section 303. The State indicated they 

generally agreed with our analysis. 

31Notably, South Dakota’s definition of ‘‘air 

pollutant,’’ which is a term that triggers the 

authority contained in several of the applicable 

provisions, contains a threshold injury requirement 

relating to injury to human health, welfare or the 

environment. Under South Dakota law, ‘‘air 

pollutant’’ is defined as, ‘‘the presence in the 

outdoor atmosphere of one or more contaminants in 

such quantity and duration as is or tend to be 

injurious to human health or welfare, animals or 

plant life, or property or would interfere with the 

enjoyment of life or property.’’ SDCL 34A–1–2(2). 

32SDCL 1–26–4(1) requires that the agency ‘‘shall 

serve a copy of a proposed rule and any publication 

described in section 1–26–6.6 upon the 

departmental secretary, bureau commissioner, 

public utilities commissioner, or constitutional 

officer to which it is attached for the secretary’s, 

commissioner’s, or officer’s written approval to 

proceed.’’ 

causing imminent danger to human health or 

safety and requires immediate action to 

protect human health or safety, the Secretary 

shall order such person or persons to reduce 

or discontinue immediately the emission of 

air contaminants.’’ 29

Accordingly, we have reviewed South 

Dakota’s statutory provisions for 

evidence that the State has authorities 

comparable to those in section 303. Our 

review included the provision discussed 

above, as well as provisions in the 

current SDCL.30 None of these state laws 

have been submitted for incorporation 

into the South Dakota SIP. 

With regard to the authority to bring 

suit, SDCL 34A–10–1 extends the right 

to the ‘‘attorney general, any political 

subdivision of the state, any 

instrumentality or agency of the state or 

of a political subdivision thereof, any 

person partnership, limited liability 

company, corporation, association, 

organization, or other legal entity’’ to 

‘‘maintain an action’’ for ‘‘declaratory 

and equitable relief . . . against any 

person . . . for the protection of the air, 

water, and other natural resources and 

the public trust therein from pollution, 

impairment, or destruction.’’ In 

addition, SDCL 34A–10–2 states that 

‘‘[i]f administrative, licensing, or other 

proceedings, and judicial review thereof 

are available by law, the agency may 

permit the attorney general, any 

political subdivision of the state, any 

instrumentality or agency of the state or 

of a political subdivision thereof, any 

person, partnership, limited liability 

company, corporation, association, 

organization, or other legal entity to 

intervene’’ in that proceeding involving 

‘‘conduct which has the effect of 

polluting, impairing, or destroying the 

air, water, or other natural resources or 

the public thrust therein.’’ SDCL 21–10– 

1 through 21–10–9 also provide the 

State with the authority regarding 

nuisances, including the authority to 

seek specific remedies against nuisances 

(SDCL 21–10–5). The definitions of acts 

and omissions constituting nuisances 

provide the State with broad authority 

to bring suit against persons causing 

pollution and injury or endangering the 

health or safety of others (SDCL 21–10– 

1). 

By using terms such as ‘‘pollution, 

impairment, or destruction,’’ and 

‘‘protection of the air, water, and other 

natural resources,’’ these statutes (SDCL 

34A–10–1, 34A–10–2) provide stated 

entities with broad authority to bring 

suit against persons causing pollution of 

varying degrees of urgency, including 

pollution that presents an imminent and 

substantial endangerment.31 These 

provisions provide arguably broader 

authority than what CAA section 303 

provides to EPA, as they do not by their 

terms first require the stated entities to 

assert that the would-be enjoined 

pollution constitutes imminent and 

substantial endangerment. We propose 

to find that these provisions, while not 

specifically mentioning ‘‘public health,’’ 

‘‘welfare,’’ or the ‘‘environment,’’ are 

nonetheless comparable to section 303 

and broadly empower the State to 

address through civil action threats to 

public health (e.g., from pollution), 

welfare (e.g., from nuisances, and for 

protection of the air, water, and other 

natural resources), and the environment 

(e.g., protection of natural resources 

from pollution, impairment, or 

destruction) from any imminent and 

substantial endangerment. 

South Dakota’s statutes also provide 

DENR’s Secretary with the authority to 

issue administrative orders and 

emergency rules, and suspend state 

agency rules, to protect the public 

health, welfare, and the environment 

under certain circumstances. SDCL 

34A–1–45, as cited in South Dakota’s 

SIP submittals, authorizes that if the 

Secretary of the DENR ‘‘finds that any 

person is causing or contributing to air 

pollution and that such pollution 

creates an emergency by causing 

imminent danger to human health or 

safety and requires immediate action to 

protect human health or safety,’’ ‘‘the 

secretary shall order the person to 

reduce or discontinue immediately the 

emission of air contaminants.’’ The 

emergency order is effective 

immediately on service upon the person 

responsible for the emission, and any 

person to whom such an order is 

directed shall comply with the order 

immediately. SDCL 34A–10–2.5 

provides authority for the DENR to 

apply to the court for an injunction, 

including temporary injunctions, 

against any person who fails to comply 

with such orders. 

Additionally, SDCL 1–26–5(3) 

authorizes any agency to adopt or 

amend an emergency rule for reasons 

including ‘‘imminent peril to the public 

health, safety, or welfare . . . or because 

of the occurrence of an unforeseen event 

at a time when the adoption of a rule in 

response to such event by the 

emergency procedure is required to 

secure or protect the best interests of the 

state or its residents.’’ Subject to 

applicable constitutional or statutory 

provisions, emergency rules are 

‘‘effective immediately upon filing with 

the secretary of state’’ or at another 

stated date; and ‘‘[n]o emergency rule 

may remain in effect for a period of no 

longer than ninety days’’ (SDCL 1–26– 

8). South Dakota’s statutes also require 

that certain procedures be followed 

prior to adoption of the emergency rule. 

‘‘[A]n agency shall publish a notice of 

intent to adopt an emergency rule in the 

manner prescribed in section 1–26–4.1’’ 

(SDCL 1–26–5). SDCL 1–26–4.1 

provides that ‘‘the notice of intent to 

adopt an emergency rule shall be mailed 

to each person who has made a timely 

request of the agency for advance notice 

of its rule-making proceedings.’’ SDCL 

requires that the agency ‘‘serve on the 

person specified in subdivision 1–26– 

4(1),32 each member of the Interim Rules 

Committee and the director’’ the 

information specified in SDCL 1–26–5 

and follow the notification and mailing 

requirements in SDCL 1–25–4.1. 

Finally, SDCL 1–26–5(3) requires that 

notice of proposed emergency rule 

served on the specified individuals shall 

include ‘‘[a] statement, with the reasons, 

that the emergency procedure is 

necessary: because of imminent peril to 


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33SDCL 34–48A–9. ‘‘Power to make orders. In 

performing his duties under this chapter, and to 

effect its policy and purpose, the Governor is 

further authorized and empowered to make, amend, 

and rescind the necessary orders to carry out the 

provisions of this chapter within the limits of the 

authority conferred upon him herein, with due 

consideration of the plans of the federal 

government.’’ 

34SDCL 34–48A–1(3) defines emergency as ‘‘any 

natural, nuclear, man-made, war- related, or other 

catastrophe producing phenomena in any part of 

the state which in the determination of the 

Governor requires the commitment of less than all 

available state resources to supplement local efforts 

of political subdivisions of the state to save lives 

and to protect property, public health, and safety 

or to avert or lessen the threat of a disaster.’’ 

35SDCL 34–48A–5(4) gives the Governor the 

authority to ‘‘suspend the provisions of any rules 

of any state agency if strict compliance with the 

provisions of the rule would in any way prevent, 

hinder, or delay necessary action in managing a 

disaster . . . or emergency, including . . . air 

contamination . . . which is determined by the 

Governor to require state or state and federal 

assistance or actions to supplement the recovery 

efforts of local government in alleviating the 

damage, loss, hardship, or suffering caused 

thereby.’’ The rules suspended by the Governor 

remain suspended for six months and may be 

restored for one or more successive six-month 

periods if the Governor declares the conditions 

persist (SDCL 34–48A–5). 

36Memorandum from William T. Harnett, 

Director, Air Quality Policy Division, to Regional 

Air Division Directors, Guidance on SIP Elements 

Required under Sections 110(a)(1) and (2) for the 

2006 24-Hour Fine Particle (PM2.5) Standards 

(NAAQS), at p. 6–7 (Sep. 25, 2009). 

37Memorandum from William T. Harnett, 

Director, Air Quality Policy Division, to Regional 

Air Division Directors, Guidance on SIP Elements 

Required under Sections 110(a)(1) and (2) for the 

2006 24-Hour Fine Particle (PM2.5) Standards 

(NAAQS), at p. 6–7 (Sep. 25, 2009). 

the public health, safety, or welfare; 

. . . or because of the occurrence of an 

unforeseen event at a time when the 

adoption of a rule in response to such 

event by the emergency procedure is 

required to secure or protect the best 

interests of the state or its residents.’’ 

While these provisions do not directly 

provide authority to issue 

administrative orders to prevent air 

pollution that endangers the 

environment and contain certain 

notification procedures not found in 

section 303, they do provide regulatory 

authority for state agencies to develop 

emergency rules for the protection of 

public health and welfare, and welfare 

is commonly understood to include the 

elements of what is covered by the term 

‘‘environment’’ (see, e.g., CAA section 

302(h), broadly defining ‘‘effects on 

welfare’’). 

We also note that another emergency 

management option under South Dakota 

statutes involves the Governor’s 

authorities. For example, Chapter 34– 

48A, which covers Emergency 

Management, includes authority for the 

Governor to issue orders in emergency 

situations.33 Additionally, in the event 

of an ‘‘emergency’’ 34 that is beyond 

local government capability, SDCL 34– 

48A–5(4) gives the Governor authority 

to suspend rules under certain 

circumstances.35

While no single South Dakota statute 

mirrors the authorities of CAA section 

303, we propose to find that the 

combination of SDCL provisions 

discussed above provide for authority 

comparable to section 303 to 

immediately bring suit to restrain, issue 

emergency executive orders against, and 

use special rule adoption and 

suspension procedures for applicable 

emergencies to take prompt 

administrative action against, any 

person causing or contributing to air 

pollution that presents an imminent and 

substantial endangerment to public 

health or welfare, or the environment. 

Consistent with EPA’s 2013 

Infrastructure SIP Guidance, the 

narratives provided in South Dakota’s 

SIP submittals about the State’s 

authorities applying to emergency 

episodes (as discussed above), plus 

additional South Dakota statutes that we 

have considered, we propose that they 

are sufficient to meet the authority 

requirement of CAA section 

110(a)(2)(G). 

States must also have adequate 

contingency plans adopted into their 

SIP to implement the air agency’s 

emergency episode authority (as 

discussed above). This can be met by 

submitting a plan that meets the 

applicable requirements of 40 CFR part 

51, subpart H for the relevant NAAQS 

if the NAAQS is covered by those 

regulations. Rules contained in ARSD 

and South Dakota’s SIP adopt by 

reference the criteria in 40 CFR 51.151 

as the air quality episode plan to 

address activities causing imminent and 

substantial endangerment to public 

health, including a contingency plan to 

implement the emergency episode 

provisions of the SIP. As of the date of 

South Dakota’s submittal, EPA has not 

established priority classification for a 

significant harm level for PM2.5. As 

DENR explains in its SIP submittals, 

once EPA promulgates such rules, 

DENR will adopt them into ARSD 

74:36:03 (Air quality episodes). 

Subpart H of 40 CFR part 51 requires 

states to classify regions and to develop 

contingency plans (also known as 

emergency episode plans) after ambient 

concentrations of certain criteria 

pollutants in an area have exceeded 

specified levels. For example, if ambient 

concentrations of nitrogen dioxide in an 

area have exceeded 0.06 ppm (annual 

arithmetic mean), then the area is 

classified as a Priority I region, and the 

state must develop a contingency plan 

that meets the requirements of sections 

51.151 and 51.152. However, Subpart H 

does not currently address requirements 

for the 24-hour PM2.5 standard. 

In 2009, EPA issued a guidance 

memorandum that, among other things, 

recommended an approach for states to 

address the contingency plan 

requirements of 110(a)(2)(G) with 

respect to the 2006 PM2.5 NAAQS.36 The 

guidance, in Attachment A, suggested 

that states develop a contingency plan 

if, based on the most recent three 

calendar years of data, an area within 

the state had monitored and recorded a 

24-hour PM2.5 level greater than 140.4 

mg/m3. For states that were to develop 

a contingency plan, the guidance 

recommended states set priority and 

emergency levels consistent with 

requirements of 40 CFR 51.150 through 

51.153. EPA notes that section 51.153 

requires periodic reevaluation of 

priority classifications based on the 

three most recent years of air quality 

data. 

South Dakota has recorded no levels 

of ambient air concentrations in the 

three most recent complete calendar 

years—2011, 2012, and 2013—that 

exceed the 2009 guidance 

memorandum 37 recommended levels 

for states to develop a contingency plan 

for PM2.5. However, on September 4, 

2009 a continuous PM2.5 air monitor 

operated by the State of South Dakota in 

Wind Cave National Park registered a 

24-hour level of 303.6 mg/m3. The 

monitor in question was a special 

purpose Federal Equivalent Method 

monitor collocated with a Federal 

Reference Method (FRM) State and 

Local Air Monitoring Stations (SLAMS) 

monitor. The SLAMS FRM was 

designated as the primary monitor at the 

site, and recorded 120.5 mg/m3 as the 

official regulatory value for the 

monitoring station that day. On the day 

the secondary monitor recorded a value 

of 303.6 mg/m3, the National Park 

Service conducted a prescribed burn in 

the Wind Cave National Park. A 

discussion including details of the event 

as well as monitoring data are contained 

within a memo to this docket. Given the 

unique circumstances of this event and 

taking into account that the official 

regulatory value fell below the 

recommended level for developing a 

contingency plan, and that the last three 

years of data also fall below the 

recommended level, EPA believes it is 

appropriate to interpret 110(a)(2)(G) as 

not requiring development of a 

contingency plan. However, this does 

not imply that other, future 


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38 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements Required 

Under Sections 110(a)(1) and 110(a)(2) for the 2008 

Lead (Pb) National Ambient Air Quality Standards 

(NAAQS).’’ Steve Page, OAQPS Director, October 

14, 2011, at p 13. 

39See Email from Brian Gustafson ‘‘Question 

Regarding Permitting Fees for SD iSIP Action’’ July 

24, 2014, available within docket. 

circumstances in the state cannot trigger 

this requirement. 

Revisions to the South Dakota Air 

Quality Episodes rules ARSD 

74:36:03:01 ‘‘Air pollution emergency 

episode’’ and ARSD 74:36:03:02 

‘‘Episode emergency contingency plan’’ 

were most recently approved on June 

27, 2014 (79 FR 36425). We find that 

South Dakota’s air pollution emergency 

rules include PM2.5, ozone, and NO2; 

establish stages of episode criteria; 

provide for public announcement 

whenever any episode stage has been 

determined to exist; and specify 

emission control actions to be taken at 

each episode stage, consistent with the 

EPA emergency episode SIP 

requirements set forth at 40 CFR part 51 

subpart H (prevention of air pollution 

emergency episode) for particulate 

matter, ozone, and NO2. 

As noted in the October 14, 2011 

guidance,38 based on EPA’s experience 

to date with the Pb NAAQS and 

designating Pb nonattainment areas, 

EPA expects that an emergency episode 

associated with Pb emissions would be 

unlikely and, if it were to occur, would 

be the result of a malfunction or other 

emergency situation at a relatively large 

source of Pb. Accordingly, EPA believes 

the central components of a contingency 

plan would be to reduce emissions from 

the source at issue and communicate 

with the public as needed. We note that 

40 CFR part 51, subpart H (51.150– 

51.152) and 40 CFR part 51, Appendix 

L do not apply to Pb. 

Based on the above analysis, we 

propose approval of South Dakota’s SIP 

as meeting the requirements of CAA 

section 110(a)(2)(G) for the 1997 and 

2006 PM2.5, 2008 Pb, 2008 ozone, and 

2010 NO2 NAAQS. 

9. Future SIP revisions: Section 

110(a)(2)(H) requires that SIPs provide 

for revision of such plan: (i) From time 

to time as may be necessary to take 

account of revisions of such national 

primary or secondary ambient air 

quality standard or the availability of 

improved or more expeditious methods 

of attaining such standard, and (ii), 

except as provided in paragraph (3)(C), 

whenever the Administrator finds on 

the basis of information available to the 

Administrator that the SIP is 

substantially inadequate to attain the 

NAAQS which it implements or to 

otherwise comply with any additional 

requirements under this [Act]. 

South Dakota’s statutory provision at 

SDCL 34A–1–6 gives DENR sufficient 

authority to meet the requirements of 

110(a)(2)(H). Therefore, we propose to 

approve South Dakota’s SIP as meeting 

the requirements of CAA section 

110(a)(2)(H). 

10. Consultation with government 

officials, public notification, PSD and 

visibility protection: Section 110(a)(2)(J) 

requires that each SIP ‘‘meet the 

applicable requirements of section 121 

of this title (relating to consultation), 

section 127 of this title (relating to 

public notification), and part C of this 

subchapter (relating to PSD of air 

quality and visibility protection).’’ 

The State has demonstrated it has the 

authority and rules in place through its 

certifications (contained within this 

docket) to provide a process of 

consultation with general purpose local 

governments, designated organizations 

of elected officials of local governments 

and any Federal Land Manager having 

authority over federal land to which the 

SIP applies, consistent with the 

requirements of CAA section 121. 

Furthermore, EPA previously addressed 

the requirements of CAA section 127 for 

the South Dakota SIP and determined 

public notification requirements are 

appropriate (45 FR 58528, Sept. 4, 

1980). 

As discussed above, the State has a 

SIP-approved PSD program that 

incorporates by reference the federal 

program at 40 CFR 52.21. EPA has 

further evaluated South Dakota’s SIP 

approved PSD program in this proposed 

action under element (C) and 

determined the State has satisfied the 

requirements of element 110(a)(2)(C), as 

noted above. Therefore, the State has 

also satisfied the requirements of 

element 110(a)(2)(J). 

Finally, with regard to the applicable 

requirements for visibility protection, 

EPA recognizes states are subject to 

visibility and regional haze program 

requirements under part C of the Act. In 

the event of the establishment of a new 

NAAQS, however, the visibility and 

regional haze program requirements 

under part C do not change. Thus, we 

find that there are no applicable 

visibility requirements under section 

110(a)(2)(J) when a new NAAQS 

becomes effective. 

Based on the above analysis, we 

propose to approve the South Dakota 

SIP as meeting the requirements of CAA 

section 110(a)(2)(J) for the 1997 and 

2006 PM2.5, 2008 Pb, 2008 ozone, and 

2010 NO2 NAAQS. 

11. Air quality and modeling/data: 

Section 110(a)(2)(K) requires each SIP 

provide for: (i) The performance of such 

air quality modeling as the 

Administrator may prescribe for the 

purpose of predicting the effect on 

ambient air quality of any emissions of 

any air pollutant for which the 

Administrator has established a 

NAAQS, and (ii) the submission, upon 

request, of data related to such air 

quality modeling to the Administrator. 

South Dakota’s PSD program 

incorporates by reference the federal 

program at 40 CFR 52.21, including the 

provision at 40 CFR 52.21(l)(1) requiring 

that estimates of ambient air 

concentrations be based on applicable 

air quality models specified in 

Appendix W of 40 CFR part 51, and the 

provision at 40 CFR 52.21(l)(2) requiring 

that modification or substitution of a 

model specified in Appendix W must be 

approved by the Administrator. 

Additionally, SDLC section 34A–1–1, 

34A–1–10, and 1–40–31 provide the 

Department with the authority to advise, 

consult, and cooperate with EPA and 

provide EPA with public records, such 

as air quality modeling. As a result, the 

SIP provides for such air quality 

modeling as the Administrator has 

prescribed. Therefore, we propose to 

approve the South Dakota SIP as 

meeting the CAA section 110(a)(2)(K) 

for the 1997 and 2006 PM2.5, 2008 Pb, 

2008 ozone, and 2010 NO2 NAAQS. 

12. Permitting fees: Section 

110(a)(2)(L) requires SIPs to: Require the 

owner or operator of each major 

stationary source to pay to the 

permitting authority, as a condition of 

any permit required under this act, a fee 

sufficient to cover; (i) the reasonable 

costs of reviewing and acting upon any 

application for such a permit; and (ii) if 

the owner or operator receives a permit 

for such source, the reasonable costs of 

implementing and enforcing the terms 

and conditions of any such permit (not 

including any court costs or other costs 

associated with any enforcement 

action), until such fee requirement is 

superseded with respect to such sources 

by the Administrator’s approval of a fee 

program under title V. 

The funding sources used for the PSD 

permit reviews conducted by South 

Dakota derive from EPA grant and 

matching State general funds.39 There 

are no nonattainment areas in the State. 

In light of the State’s experience that 

funding from grants and general funds 

has been sufficient to operate a 

successful PSD program, it is reasonable 

that the PSD permit applicants are not 

charged any permit-specific fees. 

We also note that all the State SIPs we 

are proposing to approve in this action 


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cite the regulation that provides for 

collection of permitting fees under the 

State’s EPA-approved title V permit 

program (ARSD 74:37:01), which we 

approved and became effective February 

28, 1996 (61 FR 2720, Jan. 29, 1996). 

Therefore, based on the State’s 

experience in relying on the grant and 

general funds for PSD permits, and the 

use of title V fees to implement and 

enforce PSD permits once they are 

incorporated into title V permits, we 

propose to approve the submissions as 

supplemented by the State for the 1997 

and 2006 p.m.2.5, 2008 Pb, 2008 ozone, 

and 2010 NO2 NAAQS. 

13. Consultation/participation by 

affected local entities: Section 

110(a)(2)(M) requires states to provide 

for consultation and participation in SIP 

development by local political 

subdivisions affected by the SIP. 

The statutory provisions cited in 

South Dakota’s SIP submittals 

(contained within this docket) meet the 

requirements of CAA section 

110(a)(2)(M), so we propose to approve 

South Dakota’s SIP as meeting these 

requirements for the 1997 and 2006 

PM2.5, 2008 Pb, 2008 ozone, and 2010 

NO2 NAAQS. 

VII. What action is EPA taking? 

In this action, EPA is proposing to 

approve the following infrastructure 

elements for the 1997 and 2006 PM2.5, 

2008 Pb, 2008 ozone, and 2010 NO2

NAAQS: (A), (B), (C) with respect to 

minor NSR and PSD requirements, 

(D)(i)(II) prongs 3 and 4, (D)(ii), (E), (F), 

(G), (H), (J), (K), (L), and (M). EPA is also 

proposing to approve revisions to ARSD 

74:36:09 submitted on July 29, 2013, 

which incorporate by reference the 

requirements of the 2010 PM2.5

Increment Rule. Specifically, we 

propose to approve the adoption of the 

text of 40 CFR 52.21, paragraphs 

(b)(14)(i),(ii),(iii), (b)(15)(i),(ii), and 

paragraph (c) as they existed on July 1, 

2012 by proposing to approve revisions 

to: ARSD 74:34:09:02 (Prevention of 

significant deterioration) and 

74:36:09:03 (Public participation). EPA 

is also proposing to approve revisions to 

ARSD 74:09 and SDCL 1–40–25.1 

submitted on June 11, 2014 to satisfy 

requirements of element (E)(ii), state 

boards. Finally, EPA proposes approval 

of D(i)(I) prongs 1 and 2 for the 2006 

PM2.5, 2008 Pb, and 2010 NO2 NAAQS. 

EPA will act separately on infrastructure 

element (D)(i)(I), interstate transport for 

the 2008 ozone NAAQS. 

VIII. Statutory and Executive Orders 

Review 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations 

(42 U.S.C. 7410(k), 40 CFR 52.02(a)). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves some state law 

as meeting federal requirements and 

disapproves other state law because it 

does not meet federal requirements; this 

proposed action does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

Oct. 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, Aug. 10, 

1999); is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and, 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, Feb. 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

Nov. 9, 2000), because the SIP is not 

approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Greenhouse gases, Incorporation by 

reference, Intergovernmental relations, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

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

Dated: November 19, 2014. 

Shaun L. McGrath, 

Regional Administrator, Region 8. 

[FR Doc. 2014–28301 Filed 11–28–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2012–0353; FRL–9919–96– 

Region 8] 

Approval and Promulgation of Air 

Quality Implementation Plans; State of 

Montana Second 10-Year Carbon 

Monoxide Maintenance Plan for Great 

Falls 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing approval of 

a State Implementation Plan (SIP) 

revision submitted by the State of 

Montana. On July 13, 2011, the 

Governor of Montana’s designee 

submitted to EPA a second 10-year 

maintenance plan for the Great Falls 

area for the carbon monoxide (CO) 

National Ambient Air Quality Standard 

(NAAQS). This maintenance plan 

addresses maintenance of the CO 

NAAQS for a second 10-year period 

beyond the original redesignation. EPA 

is also proposing approval of an 

alternative monitoring strategy for the 

Great Falls CO maintenance area, which 

was submitted by the Governor’s 

designee on June 22, 2012. 

DATES: Comments must be received on 

or before December 31, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2012–0353, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• Email: clark.adam@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 


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