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ARTICLE 74:36 

AIR POLLUTION CONTROL PROGRAM 

Chapter 

74:36:01 Definitions. 

74:36:02 Ambient air quality. 

74:36:03 Air quality episodes. 

74:36:04 Operating permits for minor sources. 

74:36:05 Operating permits for Part 70 sources. 

74:36:06 Regulated air pollutant emissions. 

74:36:07 New source performance standards. 

74:36:08 National emission standards for hazardous air pollutants. 

74:36:09 Prevention of significant deterioration.

74:36:10 New source review. 

74:36:11 Performance testing. 

74:36:12 Control of visible emissions. 

74:36:13 Continuous emission monitoring systems. 

74:36:14 Variances, Repealed. 

74:36:15 Open burning, Transferred or Repealed. 

74:36:16 Acid rain program. 

74:36:17 Rapid City street sanding and deicing. 
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74:36:18 Regulations for state facilities in the Rapid City area. 

74:36:19 Mercury budget trading program, Repealed. 

74:36:20 Construction permits for new sources or modifications. 

CHAPTER 74:36:01 

DEFINITIONS 

Section 

74:36:01:01 Definitions. 

74:36:01:02 Repealed. 

74:36:01:03 Administrative permit amendment defined. 

74:36:01:04 Affected states defined. 

74:36:01:05 Applicable requirements of the Clean Air Act defined. 

74:36:01:06 Complete application defined. 

74:36:01:07 Repealed. 

74:36:01:08 Major source defined. 

74:36:01:09 Categories of sources defined. 

74:36:01:10 Modification defined. 

74:36:01:11 National ambient air quality standard (NAAQS). 

74:36:01:12 Potential to emit defined. 
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74:36:01:13 Process weight rate defined. 

74:36:01:14 Repealed. 

74:36:01:15 Regulated air pollutant defined. 

74:36:01:16 Responsible official defined. 

74:36:01:17 Repealed. 

74:36:01:18 Municipal solid waste landfill defined. 

74:36:01:19 Existing municipal solid waste landfill defined. 

74:36:01:20 Physical change in or change in the method of operation defined. 

74:36:01:21 Commenced construction defined. 

74:36:01:01. Definitions. Unless otherwise specified, the terms used in this article mean: 

 (1) "Act," chapter 34A-1 of the South Dakota Codified Laws; 

 (2) "Acid rain permit," a legally binding written document or portion of a document that is 

issued by the department and specifies the acid rain program requirements applicable to an 

affected source and to the owners and operators and the designated representative of the affected 

source; 

 (3) "Acid rain program," the national sulfur dioxide and nitrogen oxides air pollution 

control and emissions reduction program established in accordance with Title IV of the Clean 

Air Act; 
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 (4) "Administrator," the administrator of the Environmental Protection Agency or the 

secretary or their authorized representatives; 

 (5) "Affected source," a source that includes one or more affected units under Title IV of 

the Clean Air Act; 

 (6) "Affected unit," a unit that is subject to any of the emission reduction requirements or 

emission limits pursuant to Title IV of the Clean Air Act or chapter 74:36:16; 

 (7) "Air pollutant," one or a combination of the regulated air pollutants listed in 

§ 74:36:01:15; 

 (8) "Allowable emissions," the emission rate calculated using the maximum rated capacity 

of a source unless the source is subject to federally enforceable limits which restrict operating 

rate, hours of operation, or both, and the most stringent of the following: 

 (a) The applicable new source performance standards in chapter 74:36:07; 

 (b) The applicable national emission standards in chapter 74:36:08; 

 (c) Any applicable emission limitations specified in this article, including those with a 

future compliance date; 

 (d) The emission rate specified as a permit condition; or 

 (e) The applicable standards in 40 C.F.R. Part 60, 61, or 63 (July 1, 2009); 
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 (9) "Ambient air," that portion of the atmosphere external to buildings to which the 

general public has access; 

 (10) "ASTM," the American Society for Testing and Materials; 

 (11) "Board," the Board of Minerals and Environment; 

 (12) "Btu," British thermal unit; 

 (13) "CO," carbon monoxide; 

 (14) "Chairman," chairman of the board; 

 (15) "Clean Air Act," the Clean Air Act, 42 U.S.C. 7401 et seq., as amended through 

January 1, 2010; 

 (16) "Clean Air Act Amendments," the amendments to the Clean Air Act enacted in Pub. 

L. No. 101-549, November 15, 1990; 

 (17) "Control equipment," a device which prevents or reduces emissions; 
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 (18) "Criteria pollutant," selected and specified pollutants for which limiting ambient air 

quality standards have been set, including sulfur dioxides, particulate matter, carbon monoxide, 

ozone, nitrogen oxides, and lead; 

 (19) "Department," the South Dakota Department of Environment and Natural Resources; 

 (20) "Designated representative," the responsible person or official authorized by the 

owner or operator of an affected unit, in accordance with the Clean Air Act, to represent the 

owner or operator in matters pertaining to the holding, transfer, or disposition of allowances 

allocated to the unit and the submission of and compliance with permits, permit applications, and 

compliance plans for the unit; 

 (21) "Draft permit," the version of a permit for which the department offers public 

participation or affected state review; 

 (22) "Emissions allowable under the permit," a federally enforceable permit term or 

condition determined at issuance to be required by an applicable requirement that establishes an 

emissions limit, including work practice standards, or a federally enforceable emissions cap that 

the source has assumed to avoid an applicable requirement to which the source would otherwise 

be subject; 

 (23) "Emission standard," the maximum amount of a pollutant legally permitted to be 

discharged from a single unit; 
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 (24) "Emission unit," "Unit," any part or activity of a stationary source which emits or has 

the potential to emit a regulated air pollutant or any pollutant listed under section 112(b) of the 

Clean Air Act; 

 (25) "EPA," the Environmental Protection Agency; 

 (26) "Equivalent method," any method of sampling and analysis for an air pollutant which 

has a consistent and quantitatively known relationship to the reference method under specified 

conditions; 

 (27) "Existing source," a source that has an approved state-issued variance or permit; 

 (28) "Facility," a building, structure, or installation of pollutant-emitting activities which 

belong to the same industrial grouping, located on one or more contiguous or adjacent properties 

and under the control of the same person or of persons under common control, except the 

activities of a water-borne vessel. Pollutant-emitting activities are part of the same industrial 

grouping if they belong to the same major group, i.e., have the same two-digit code, as described 

in the Standard Industrial Classification Manual, 1987; 

 (29) "Federally enforceable," all limits and conditions that are enforceable by the 

administrator of EPA pursuant to federal law. These limits and conditions include those 

requirements developed pursuant to this article, those appearing in 40 C.F.R. §§ 60 and 61 (July 
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1, 2009), requirements within the state implementation plan, and permit requirements established 

pursuant to this article or 40 C.F.R. § 51 Subpart I (July 1, 2009). The use of this term does not 

impede the department's authority under state law to enforce these limits and conditions; 

 (30) "Final permit" the version of an operating permit issued by the permitting authority 

for a source that has completed all required review procedures; 

 (31) "Fuel-burning unit," a furnace, boiler, apparatus, stack, or any of their components 

used in the process of burning fuel or other combustible material for the primary purposes of 

producing heat or power by indirect heat transfer; 

 (32) "Fugitive emissions," those air pollutants which could not reasonably pass through a 

stack, chimney, vent, or other functionally equivalent opening; 

 (33) "General permit," a permit issued by the board in accordance with SDCL 34A-1-56 

that may be made applicable to numerous similar sources; 

 (34) "Heat input," the aggregate heat content of all fuels whose products of combustion 

pass through a stack or stacks, using the heat input value of the equipment manufacturer's or 

designer's guaranteed maximum input, whichever is greater; 

 (35) "Incinerator," a furnace used to burn solid waste to reduce the volume of the waste by 

removing its combustible material; 
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 (36) "Malfunction," any sudden and unavoidable failure of air pollution control equipment 

or process equipment or of a process to operate in a normal or usual manner, but not a failure 

caused entirely or in part by poor maintenance, careless operation, preventable equipment 

breakdown, or any other cause within the control of the owner or operator of the source; 

 (37) "Minor source," a source whose potential emissions of a criteria pollutant are less 

than 100 tons a year and which does not meet the definition of a Part 70 source; 

 (38) "New source," a source that has not been constructed and does not possess a permit or 

an approved state-issued variance; 

 (39) "Nonattainment area," an area that does not meet or that contributes to ambient air 

quality in a nearby area that does not meet the national primary or secondary ambient air quality 

standard for the pollutant; 

 (40) "NSR," new source review; 

 (41) "Opacity," the degree to which emissions reduce the transmission of light and 

obscure the view of an object in the background; 
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 (42) "Open burning," the burning of any matter in such a manner that the products of 

combustion resulting from the burning are emitted directly into the ambient air without passage 

through a stack, duct, or chimney; 

 (43) "Operating permit," a written authorization issued by the board or the secretary for 

the operation of a source; 

 (44) "Owner or operator," any person who owns, leases, operates, controls, or supervises a 

source; 

 (45) Repealed; 

 (46) "Part 70 operating permit," any permit or group of permits covering a Part 70 source 

that is issued, renewed, amended, or revised; 

 (47) "Part 70 source," any source subject to § 74:36:05:03; 

 (48) "Particulate matter," a broad class of chemically and physically diverse substances 

that exist as discrete particles, liquid droplets, or solids over a wide range of sizes; 

 (49) "Permit modification," a change to a source which operates under a minor source 

operating permit or Part 70 operating permit that meets the requirements of § 74:36:01:10; 
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 (50) "Permit revision," a revision to a minor source operating permit or Part 70 operating 

permit to incorporate a permit modification, administrative permit amendment, or minor permit 

amendment; 

 (51) "Person," an individual, corporation, partnership, firm, association, trust, estate, 

public or private institution, group, agency, political subdivision or state agency or any legal 

successor, representative, agent, or agency of the foregoing; 

 (52) "PM10," particulate matter with an aerodynamic diameter less than or equal to a 

nominal ten micrometers as measured by an applicable reference or equivalent method; 

 (53) "Proposed Part 70 operating permit," a permit that the department has forwarded to 

EPA for review after the closure of the public notice period and after considering any public 

comments, including those from affected states; 

 (54) "PSD," prevention of significant deterioration; 

 (55) Repealed; 

 (56) "Salvage operation," an operation conducted in whole or in part for the reclaiming of 

product or material; 
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 (57) "Secretary," the secretary of the South Dakota Department of Environment and 

Natural Resources or an authorized representative; 

 (58) "Shutdown," the cessation of operation of any control equipment, process equipment, 

or process for any purposes; 

 (59) "Smoke," small gas-borne particles resulting from incomplete combustion, consisting 

predominantly, but not exclusively, of carbon, ash, and other combustible material, that form a 

visible plume in the air; 

 (60) "Source," a facility that emits or may emit any air pollutant regulated under the Clean 

Air Act; 

 (61) "Start-up," the setting into operation of any control equipment, process equipment, or 

process for any purpose; 

 (62) "Title I," Title I of the Clean Air Act Amendments, provisions for attainment and 

maintenance of national ambient air quality standards; 

 (63) "Title IV," Title IV of the Clean Air Act Amendments, acid deposition control; 

 (64) "Title V," Title V of the Clean Air Act Amendments, permits; 
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 (65) "Title VI," Title VI of the Clean Air Act Amendments, stratospheric ozone 

protection; 

 (66) "Variance," a written authorization issued by the board to operate a minor source in 

an attainment area that is not in compliance with certain portions of the Act; 

 (67) "VOC," "volatile organic compounds," as defined in 40 C.F.R. § 51.100(s) (July 1, 

2009); 

 (68) "Wire reclamation furnace," a furnace that uses either direct or indirect heat transfer 

to salvage nonferrous metals through the thermal destruction of solid waste materials; 

 (69) "PM2.5," particulate matter with an aerodynamic diameter less than or equal to a 

nominal 2.5 micrometers as measured by an applicable reference or equivalent method; 

 (70) "SO2," sulfur dioxide; 

 (71) "NO2," nitrogen dioxide; and 

 (72) "Construction permit," a written authorization issued by the board or the secretary for 

the construction and operation of a new source or modification to an existing source. 
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(73) “Subject to regulation” as defined in 40 CFR § 70.2 (July 1, 2009), as revised in 

publication 75 Fed. Reg. 31607 (June 3, 2010), in accordance with EPA requirements.

 

Source: SL 1975, ch 16, § 1; 2 SDR 40, effective December 7, 1975; transferred from 

§ 34:10:01:01, 7 SDR 4, effective July 27, 1980; transferred from § 44:10:01:01, effective July 1, 

1981; 8 SDR 71, effective December 21, 1981; 10 SDR 68, effective January 5, 1984; 13 SDR 

129, 13 SDR 141, effective July 1, 1987; 14 SDR 72, effective November 24, 1987; 16 SDR 88, 

effective November 14, 1989; 17 SDR 170, effective May 13, 1991; transferred from 

§ 74:26:01:01, 19 SDR 157, effective April 22, 1993; 21 SDR 119, effective January 5, 1995; 23 

SDR 106, effective December 29, 1996; 25 SDR 123, effective April 4, 1999; 30 SDR 26, 

effective September 1, 2003; 31 SDR 101, effective January 2, 2005; 32 SDR 209, effective June 

13, 2006; 36 SDR 207, effective June 28, 2010. 

General Authority: SDCL 34A-1-6. 

Law Implemented: SDCL 34A-1-6. 

Reference: Standard Industrial Classification Manual, 1987, Executive Office of the 

President, Office of Management and Budget. Copies may be obtained from National Technical 

Information Service, 5285 Port Royal Road, Springfield, Virginia 22161, order no. PB 87-

100012. Cost: $31. 

74:36:01:08. Major source defined. A major source is any source or any group of 

sources that is located on one or more contiguous or adjacent properties, that is under control of 
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the same person or of persons under common control, that belongs to a single major industrial 

grouping, and that is any of the following: 

 (1) A major source under § 112 of the Clean Air Act defined as a source or group of 

sources located within a contiguous area and under common control that emits or has the 

potential to emit, considering controls, in the aggregate, 10 tons per year (tpy) or more of any 

hazardous air pollutant which has been listed pursuant to § 112(b) of the Clean Air Act, 25 tpy or 

more of any combination of such hazardous air pollutants, or a lesser quantity established by rule 

by the administrator of the EPA. Emissions from any oil exploration or production well and its 

associated equipment and emissions from any pipeline compressor or pump station may not be 

aggregated with emissions from other similar units, whether or not such units are in a contiguous 

area or under common control, to determine whether such units or stations are major sources; or 

 (2) A major source of air pollutants, as defined in § 302 of the Clean Air Act, that directly 

emits or has the potential to emit 100 tpy or more of any air pollutant subject to regulation as 

required by EPA, including any major source of fugitive emissions of any such pollutant, as 

determined by rule by the administrator of the EPA; or 

 (3) A major source as defined in Part D of Title I of the Clean Air Act, including; 

 (a) For ozone nonattainment areas, sources with the potential to emit 100 tons or more 

per year of volatile organic compounds or oxides of nitrogen in areas classified as "marginal" or 

"moderate, "50 tons or more per year in areas classified as "serious," 25 tons or more per year in 
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areas classified as "severe," and 10 tons or more per year in areas classified as "extreme." The 

references in this subdivision to 100, 50, 25, and 10 tons per year of nitrogen oxides do not apply 

to any source for which the administrator of the EPA has made a finding, under § 182(f)(1) or (2) 

of the Clean Air Act, that the requirements of § 182(f) of the Clean Air Act do not apply; 

 (b) For ozone transport regions established pursuant to § 184 of the Clean Air Act, 

sources with the potential to emit 50 tons or more per year of volatile organic compounds; 

 (c) For carbon monoxide nonattainment areas that are classified as "serious" and in 

which sources contribute significantly to carbon monoxide levels as determined under rules 

issued by the administrator of the EPA, sources with the potential to emit 50 tons or more per 

year of carbon monoxide; and 

 (d) For particulate matter (PM10) nonattainment areas classified as "serious," sources 

with the potential to emit 70 tons or more per year of PM10. 

 A source or group of sources is considered as part of a single industrial grouping if all of 

the pollutant-emitting activities of the source or group of sources belong to the same major group 

(i.e. which have the same two-digit code) as described in the Standard Industrial Classification 

Manual, 1987. 
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Source: List of stationary sources transferred from § 74:26:01:03, 17 SDR 170, effective 

May 13, 1991; transferred from §§ 74:26:01:06.05 and 74:26:01:06.07, 19 SDR 157, effective 

April 22, 1993; 21 SDR 119, effective January 5, 1995; 25 SDR 123, effective April 4, 1999. 

General Authority: SDCL 34A-1-6. 

Law Implemented: SDCL 34A-1-6. 

Cross-Reference: Classification defined, Title I of the Clean Air Act. 

Reference: Standard Industrial Classification Manual, 1987, Executive Office of the 

President, Office of Management and Budget. Copies may be obtained from National Technical 

Information Service, 5285 Port Royal Road, Springfield, Virginia 22161, order no. PB 87-

100012. Cost: $31. 

74:36:01:15. Regulated air pollutant defined. A regulated air pollutant is one of the 

following: 

 (1) Nitrogen oxides or any volatile organic compounds; 

 (2) Nitrogen dioxide, PM10, sulfur dioxide, carbon monoxide, lead, ozone, or any 

pollutant for which a national ambient air quality standard has been promulgated in the Clean Air 

Act; 
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 (3) Any pollutant that is addressed by any standard promulgated under § 111 of the Clean 

Air Act; 

 (4) Any Class I or II substance subject to a standard promulgated under or established by 

Title VI of the Clean Air Act; or

 (5) Any pollutant subject to a standard promulgated under § 112 of the Clean Air Act or 

other requirements established under §§ 112(g), (j), and (r) of the Clean Air Act, including the 

following: 

 (a) Any pollutant subject to a standard promulgated under § 112(j) of the Clean Air 

Act. If the administrator of the EPA fails to promulgate a standard by the date established in 

§ 112(e) of the Clean Air Act, any pollutant for which a subject source would be major shall be 

considered to be regulated on that date; and 

 (b) Any pollutant for which the requirements of § 112(g)(2) of the Clean Air Act have 

been met, but only for the individual source subject to § 112(g)(2) requirement; or

(6) Any of the six greenhouse gases designated by EPA as regulated air pollutants: carbon 

dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. 

Source: 19 SDR 157, effective April 22, 1993; 21 SDR 119, effective January 5, 1995. 

General Authority: SDCL 34A-1-6. 
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Law Implemented: SDCL 34A-1-6. 

 

CHAPTER 74:36:09 

PREVENTION OF SIGNIFICANT DETERIORATION

Section 

74:36:09:01 Applicability. 

74:36:09:01.01 Prevention of significant deterioration permit required. 

74:36:09:02 Prevention of significant deterioration. 

74:36:09:03 Public participation. 

74:36:09:02. Prevention of significant deterioration. For the purposes of this chapter, 

the state's definitions and requirements for the prevention of significant deterioration are those in 

40 C.F.R. § 52.21 (July 1, 2009), as revised by EPA in publication 75 Fed. Reg. 31606 and 

31607 (June 3, 2010), except for 40 C.F.R. § 52.21(a)(1), (a)(2)(iv)(e), (a)(2)(vi), (b)(2)(iii)(h), 

(b)(3)(iii)(b), (b)(3)(vi)(d), (b)(32), (b)(42), (b)(55), (b)(56), (b)(57), (b)(58), (f), (q), (s), (t), (u), 

(x), (y), (z), and (cc) (July 1, 2009) with the following differences: 
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 (1) For the purposes of this section, all terms defined in this section have the meaning 

defined in 40 C.F.R. § 52.21, except for the term "administrator" which means the secretary with 

the following exceptions: 

 (a) In 40 C.F.R. §§ 52.21(b)(3)(iii) and 52.21(b)(37)(iii), the term "administrator" 

means either the secretary or the administrator of EPA, as applicable; 

 (b) In 40 C.F.R. §§ 52.21(w)(2) to 52.21(w)(4), inclusive, the term "administrator" 

means either the secretary or the administrator of EPA, as applicable; 

 (c) In 40 C.F.R. §§ 52.21(b)(17); 52.21(b)(37)(i); 52.21(b)(43); 52.21(b)(48)(ii)(c); 

52.21(b)(50)(i); 52.21(g)(1) to 52.21(g)(6), inclusive; 52.21(l)(2); and 52.21(p)(2) the term 

"administrator" means the administrator of EPA; 

 (2) For the purposes of this section, the term "Act" means the Clean Air Act; 

 (3) For the purposes of this section, in 40 C.F.R. § 52.21(c), the Class I areas in South 

Dakota are Wind Cave National Park and the Badlands National Park; 

 (4) For the purposes of this section, 40 C.F.R § 52.21(a)(2)(iv)(f) is incorporated by 

reference excluding the last sentence which states, "For example, if a project involves both an 

existing emissions unit and a Clean Unit, the projected increase is determined by summing the 

values determined using the method specified in paragraph (a)(2)(iv)(c) of this section for the 
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existing unit and using the method specified in paragraph (a)(2)(iv)(e) of this section for the 

Clean Unit"; 

 (5) For the purposes of this section, 40 C.F.R. § 52.21(b)(2)(iii)(a) is incorporated by 

reference excluding the second sentence which states, "Routine maintenance, repair and 

replacement shall include, but not be limited to, any activity(s) that meets the requirements of the 

equipment replacement provisions contained in paragraph (cc) of this section"; 

 (6) For the purposes of this section, 40 C.F.R. § 52.21(r)(6) is incorporated by reference 

excluding the phrase, "(other than projects at a Clean Unit or at a source with a PAL)"; 

 (7) For the purposes of this section, 40 C.F.R. § 52.21(v)(1) is incorporated by reference 

excluding the phrase, "under 40 CFR 124.10"; and 

 (8) For the purposes of this section, 40 C.F.R. § 52.21(w)(1) is incorporated by reference 

excluding the phrase, "expires under paragraph (s) of this section or". 

 The secretary shall transmit to the administrator of the EPA a copy of each permit 

application subject to this section and shall notify the administrator of the EPA of each 

significant action the secretary takes on the application. 

 If EPA stays or withdraws the regulation of greenhouse gases as identified in publication 

75 Fed. Reg. 31606 and 31607 (June 3, 2010), or a court issues an order vacating or otherwise 
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invalidating EPA’s regulation of greenhouse gases for any reason, the regulation of greenhouse 

gases by Article 74:36 are void as of the date of such administrative or judicial action and shall 

have no further force and effect.

Source: 19 SDR 157, effective April 22, 1993; 21 SDR 119, effective January 5, 1995; 30 

SDR 26, effective September 1, 2003; 31 SDR 101, effective January 2, 2005; 33 SDR 43, 

effective September 18, 2006; 33 SDR 217, effective June 13, 2007; 36 SDR 207, effective June 

28, 2010. 

General Authority: SDCL 34A-1-6, 34A-1-18. 

Law Implemented: SDCL 34A-1-18. 

CHAPTER 74:36:20 

CONSTRUCTION PERMITS FOR NEW SOURCES OR MODIFICATIONS 

Section 

74:36:20:01 Applicability. 

74:36:20:02 Construction permit required. 

74:36:20:02.01 Initiating construction prior to permit issuance.

74:36:20:03 Construction permit exemption. 

74:36:20:04 Emission unit exemptions. 
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74:36:20:05 Standard for issuance of construction permit. 

74:36:20:06 Timely and complete application for a construction permit required. 

74:36:20:07 Required contents of complete application for a construction permit. 

74:36:20:08 Applicant required to supplement or correct application. 

74:36:20:09 Permit application -- Completeness review. 

74:36:20:10 Time period for department's recommendation. 

74:36:20:11 Public participation in permitting process. 

74:36:20:12 Public review of department's draft permit. 

74:36:20:13 Final permit decision -- Notice to interested persons. 

74:36:20:14 Right to petition for contested case hearing. 

74:36:20:15 Contents of construction permit. 

74:36:20:16 Administrative permit amendment. 

74:36:20:17 Procedures for administrative permit amendments. 

74:36:20:18 Reopening construction permit for cause. 

74:36:20:19 Procedures to reopen construction permit. 

74:36:20:20 Construction permit does not exempt from other requirements. 

74:36:20:21 Expiration of a construction permit. 

74:36:20:22 Notice of constructing or operating noncompliance -- Contents. 

74:36:20:23 Petition for contested case or alleged violation. 

74:36:20:24 Circumvention of emissions not allowed. 
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74:36:20:02. Construction permit required. A person may not construct, install, 

modify, or operate any source or unit likely to cause the emission of air pollutants into the 

ambient air or any equipment that prevents or controls the emission of air pollutants into the 

ambient air until a construction permit has been issued by the board or the secretary, unless it 

meet the requirements in § 74:36:20:02.01.

Source: 36 SDR 207, effective June 28, 2010. 

General Authority: SDCL 34A-1-6, 34A-1-21. 

Law Implemented: SDCL 34A-1-21. 

74:36:20:02.01. Initiating construction prior to permit issuance. The owner or operator 

of a new source or modification to an existing source may initiate construction prior to issuance 

of the construction permit by the department if the owner or operator meets the following

requirements:

 (1) The owner or operator has submitted a construction permit application to the 

department in accordance with § 74:36:20:06;

(2) The owner or operator has submitted a notification to the department of its intentions 

to initiate construction prior to issuance of the construction permit five working days before 

initiating construction;
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(3) The new source or modification to an existing source is not subject to chapters 

74:36:09 or 74:36:10. The provisions in chapters 74:36:09 or 74:36:10 remain applicable until 

the new source or modification to an existing source legally obtains a construction permit with 

federally enforceable conditions which limit the sources potential to emit below the applicable 

thresholds in chapters 74:36:09 or 74:36:10;

(4) The new source or modification to an existing source is not subject to § 

74:36:08:03.01. The provisions in § 74:36:08:03.01 remain applicable until the new source or 

modification to an existing source legally obtains a construction permit with federally 

enforceable conditions which limit the sources potential to emit below the applicable thresholds 

in § 74:36:08:03.01;

 (5) The owner or operator must assume any liability for construction conducted on a 

source before the permit is issued and in no case will the applicant be allowed to operate the 

equipment in any way that may emit any air pollutant prior to receiving a construction permit;

(6) The owner or operator must cease construction if the department’s evaluation 

demonstrates the construction of the new source or modification to the existing source will 

interfere with the attainment or maintenance of a national ambient air quality standard or 

increment; and

(7) The owner or operator will be required to make any changes to the new source or 

modification of an existing source that may be imposed in the issued construction permit.
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Source: 

General Authority: SDCL 34A-1-6, 34A-1-21.

Law Implemented: SDCL 34A-1-21.