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 if you have any questions or would like to discuss our comments. 

ttw J 

constructionpermitcom ments .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> 

12/16/2010 06:29AM 

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 

Construction 

~ permit.doc 
EPA'S COMMENTS FOR SOUTH DAKOTA'S JANUARY 20ll PUBLIC HEARING 

CHAPTER 74:36:20- CONSTRUCTION PERMITS FOR NEW SOURCES OR MODIFICATIONS 

EPA reviewed the approvability of your revisions to chapter 74:36:20:02, which allows 

for a source owner or operator to initiate construction prior to receiving a construction permit. 

Minor NSR SIP revisions must be consistent with the requirements of section 11 O(a)(2)(C) of the 

CAA and federal regulations found at 40 CFR 51.160 through 51.164. lt should be noted that 

EPA's regulations at 40 CFR 5 t .160 do not require the issuance of a penn it for the construction 

or rnodiJication of minor sources, but only th.at the SIP include a procedure to prevent the 

construction of a source or modification that would violate the SIP control strategy or interfere 

with attainment or maintenance ofthe NAAQS. EPA has detailed below our concerns with the 

rule revisions. 

1. The rule should state that the State is not obligated to issue a construction permit just 

because a source commenced construction. 

2. EPA has concerns that chapter 74:36:20:02.01 does not require some type of 

administrative approval from the State prior to allowing pre-permit construction 

activities. EPA has approved minor NSR programs in several states that do not 

require permits prior to construction, but instead require sources to submit a notice 

and receive authorization for sources to begin construction after a specified time if the 

pennitting authority does not issue an order preventing construction. Chapter 

74:36:20:02.01 only requires the owner or operator to 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 construction prior to permit issuance. This is 
not consistent with 40 CFR 51.160(b), which requires states to have legally 

enforceable procedures to prevent construction or modification of a source, if it 

would violate any SIP control strategies or interfere with attairunent or maintenance 

of the NAAQS. 

3. The rule should clarify in that this pre-petmit construction provision is limited to true 

minor sources. A true minor source is not subject to PSD requirements and does not 

have emission limits to keep it out of major sow·cc requirements (i.e. synthetic 

minors). 

4. Chapter 74:36:20:02.01(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 an evaluation and 

who elects to engage in initial construction activities accepts the regulatory risks of 

engaging in such activities. 

6. The rule should state that the provisions of chapter 74:36:20:02.01 do not supersede 

any other local, state, or federal requirements. Chapter 74:36:20:02.01 (3) only states 

that the new source or modification to an existing source cmtnot be subject to chapters 

74:36:09 (Prevention of Significant 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 

states to identify the basis for dete1mining which facilities will be subject to review. 

As part of our analysis of South Dakota's pre-pennit constmction provision we also 

reviewed recent EPA actions approving pre-permit construction rules into other State 

SIPs. EPA's July 10,2006 (71 FR 38773) approval of Mississippi's minor source permit 

regulations included a new provision entitled ·'Optional Pre-Permit Construction," which 
allows construction to commence on certain non-major sources and non-major 

modifications prior to receiving a final permit to construct, provided certain conditions 

are met. EPA also approved pre-permit construction rules for the State of ldaho•s permit 

to construct regulations, which were approved into the Idaho SIP on January 16,2003 (68 

FR 2217). Both ofthese State provisions allow complete construction of the source, 

including the emission units, prior to issuance of the pem1it. EPA has approved these 

provisions primarily because they require the prior written approval of the State and have 

safeguards to ensure that new 1najor stationary sources and major modifications do not 

commence construction prior to permit issuance.