Re: Construction Rule Changes __ ] 

Kevin Leone to: Kyrik.Rombough 

From: Kevin Leone/R8/USEPAIUS 

To: <Kyrik.Rombough@state.sd.us> 

Thanks Kyrik, I will send revised comments to Laurel this afternoon. 

Kevin 

From: 

To: 

Cc: 

Date: 

Subject: 

<Kyrik.Rombough@state.sd.us> 

Kevin Leone/R8/USEPA!US@EPA 

<Brian.Gustafson@state.sd.us> 

01/18/2011 02:29PM 

Construction Rule Changes 

01/18/2011 02:53PM 

01/18/2011 02:29:28 PM 

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Kevin: 

As discussed, the following is a description about the design of our changes to allow construction that I 

believe answers you concern on administrative authority. 

1) 74:36:20:02.01 (3) specifies that initiating construction prior to permit issuance may not occur for a 

new source or modification that is applicable to the PSD program or the non-attainment NSR program. In 

addition, this section specifies that a source that requires enforceable conditions to limit the sources 

potential to emit (synthetic minor source) may not occur either. As such only a true minor source will be 

allowed to begin construction prior to obtaining the construction permit. 

2) 74:36:20:02.01 (5) specifies that an applicant may not begin operations until the construction permit 

is issued. Therefore, the rules specifies that until the construction permit is issued that there will be no 

actual emissions generated due to construction. As the rest of the rules are written, this means DENR will 

review the application, prepare its statement of basis (narrative review of the applicable requirements), 

public notice the changes, have the potential of a contested hearing before that permit is issued, which 

means before operations may actual may begin. In addition, 74:36:20:02.01 (7) states that the applicant 

has to make any changes as imposed by the issued permit. 

3) This concept of allowing something to occur until a department takes action on the application is not 

new. EPA allows this in the Title V or Part 70 rules for both administrative and minor modifications. The 

40 CFR Part 70 rule notes that states may allow these changes immediately after it files the application. I 

understand that EPA notes a policy for administrative authority and discusses issues in other states, but, 

there are other states that do not require what EPA is requesting such as the State of Iowa's regulations. 

If you have issues with our rules then EPA needs to be consistent within all states, including the State of 

Iowa. This does not mean just new regulations or new revisions to current regulations. This means that 

all states that currently are not meeting EPA's policy must revise there rules. 

4) Keep in mind the air program as a whole and not the singular parts. Our air program also has a 

compliance section to it. If a PSD source begins construction without a construction permit arguing that 

these rules pertained to them, which again these rules do not; this action would be considered a violation 

of the regulations and subject to enforcement actions. 
5) On average, we issue construction permits, minor operating permits, and Title V operating permtis 

within 90 days of receiving an application. In regards to implementation, a facility will know fairly quickly if 

we agree or do not agree with their analysis to begin construction. How many large construction projects 

that trigger PSD take less than 90 days to complete? 

If you have any additional questions, please let me know. 

Kyrik 

Kyrik Rombough 

Natural Resources Engineering Director 

Air Quality Program 

Phone: 605-773-3151 

Email: Kyrik.Rombough@state.sd.us 

Fax: 605-773-5286