Hi Brian: RE: Construction permit rules 

## J Laurel Dygowski to: Brian.Gustafson Cc: Carl Daly., Kyrik.Rombough, Monica Morales 01/11/2011 08:13AM

Attached are our preliminary comments on your draft changes to the construction permit rules. Please let us know ifyou have any questions orwould like to discuss our comments. 

## ttw

# J constructionpermitcomments.docx

uu Note - New Mailing Address Laurel Dygowski Regional Haze Coordinator Air Quality Planning Unit US EPA· Region 8 1595 Wynkoop Street Denver, CO 80202-1129 303-312-6144

From: To: Cc: Date: Subject: Laurel, Laure!, We plan on public noticing the rule chan

... <Brian.Gustafson@state.sd.us> Laurel Dygowski/R8/USEPA/US@EPA Monica Morales/R8/USEPAIUS@EPA, Carl Oaly/R8/USEPNUS@EPA, <Kyrik.Rombough@state.sd.us> 12/16/201006:29AM**RE:Constructi~n per~it** **r~les** 12/16/2010 06:29:07 AM

We plan on public noticing the rule changes in January so if you could get me any comments by the end of the month that would be appreciated. Thanks and Happy Holidays! Brian -----Original Message----- From: Daly.Carl@epamail.epa.gov [mailto:Daly.carl@epamail.epa.gov] Sent: Wednesday, December 15, 2010 6:55 PM To: Gustafson, Brian Cc: morales.monica®epa.gov Subject: Re: Construction permit rules Brian, Thanks for the heads up. You can send the draft reg revisions to Laurel Dygowsk.i.

Carl Daly-----<> wrote:

----- To: Carl Daly/RB/USEPA/US&EPA From: <> Date: 12/15/2010 03:32PM Subject: Construction permit rules Carl, Shortly I wili be sending you draft revisions to our construction permit which will allow certain sources to canstLuct prior to receiving a construction permit. Example of source not able to do this will be a PSD source, source subject to PSD but requesting operational restrictions to avoid PSD, source subject to 112(g) and (j), etc. This is a move we are making to equal the playing field between Iowa and South Dakota. 1-lould you like me to send the draft rules to you or do you '"ant me to send them to someone in your staff. There will be a short turn around since we are getting ready to public notice these rule changes along with the ones we plan on adopting for the GHG tailoring rule. Thanks for your assistance! Brian Gustafson, PE Administrator Air Quality Program

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Construction permit.doc

### EPA'S COMMENTS FORSOUTH DAKOTA'S JANUARY 20ll PUBLIC HEARING CHAPTER74:36:20- CONSTRUCTION PERMITS FOR NEW SOURCES ORMODIFICATIONS


### EPA reviewed the approvability ofyourrevisions to chapter 74:36:20:02, which allows for a source owneroroperatorto initiate constructionpriorto receiving a constructionpermit. MinorNSR SIP revisions must be consistent with the requirements ofsection 11O(a)(2)(C) ofthe CAA and federal regulations found at 40 CFR51.160 through 51.164. lt should be 

### noted that EPA's regulations at 40 CFR 5

### t .160 do not require the issuance ofa penn 

### it for the construction

or rnodiJication ofminor sources, but only th.at the SIP include a procedure to prevent the construction ofa source ormodification that would violate the SIP control strategy or interfere with attainment or maintenance ofthe NAAQS. EPA has detailed below our concerns with the rulerevisions. 1. The rule should state that the State is not obligated to issue a constructionpermitjust because a source commenced construction. 2. EPA has concernsthat chapter 74:36:20:02.01 does not require some type of administrative approval from the State priorto allowing pre-permit construction activities. EPA has approved minorNSRprograms in several states that do not require permitsprior to construction, but instead require sources to submit a notice and receive authorization for sources to begin construction after a specified time 

### ifthe pennitting authority does not issue an orderpreventing construction. Chapter 74:36:20:02.01 onlyrequires the owner or operatorto submit a construction permit application; the rule references a department evaluation but does not require written approval from the State prior to construction ensuring that sources that are subject to federal requirements do not commence constructionpriorto permit issuance. This isnot consistent with 40 CFR 51.160(b), which requires statesto have legally enforceable proceduresto prevent construction or modification ofa source,

### ifit would violate any SIP control strategies orinterfere with attairunentor maintenance ofthe NAAQS. 

### 3. The rule should

### clarify in that this pre-petmitconstruction provision is 

### limited to true minor sources. A trueminorsource is not subject to PSD requirements and does not have emission limits to keep 

### it out ofmajorsow·cc requirements (i.e. synthetic minors). 4. Chapter74:36:20:02.01(6) states refers to the "deprutmenfs evaluation." This term should be defined. 5. The rule should state that an owner or operator wbo has received anevaluation and 

### who elects to engage in 

### initial construction activities accepts the regulatory risks of engaging in such activities. 6. Therule should state that the provisions ofchapter 74:36:20:02.01 do not supersede any other local, state, or federal requirements. Chapter74:36:20:02.01(3) only states that the new source or modification to an existing source cmtnot be subject to chapters 74:36:09 (Prevention ofSignificant Deterioration) or 74:36:10 (New Source Review). 7. Chapter 74:36:20:02.01 is not consistettt with 40 CFR 51.160(e), which requires statesto identify the basis for dete1mining

### which facilities will be 

### subject to review. As part ofour analysis ofSouth Dakota's pre-pennitconstmctionprovision we also reviewed recent EPA actions approving pre-permit construction rules into other State SIPs. EPA's July 10,2006 (71 FR 38773) approval ofMississippi's minor source permit regulations included a newprovision entitled ·'Optional Pre-Permit Construction," 

### which

### allows constructionto commence on certain non-major sources and non-major modifications priorto receiving a final permit to construct, provided certain conditions

are met. EPA also approved pre-permit construction rules for the State ofldaho•s permit to constructregulations, which were approved into the Idaho SIP on January 

### 16,2003 (68 FR 2217). Both ofthese State provisions allow complete construction ofthe source, including the emission units, prior to issuanceofthe pem1it. EPA has approvedthese provisionsprimarily because they require the prior written approval ofthe State and have safeguards to ensure that new 1najor stationary sourcesand major modifications do not

commence construction priorto permit issuance.