52388 Federal Register / Vol. 81, No. 152 / Monday, August 8, 2016 / Proposed Rules 

facilities within the monitoring universe 

classified such that they are required to 

report annual compliance data. 

(g) A timetable specifically detailing 

when and in which facilities 

compliance monitoring will occur; 

(h) Description of procedures for 

receiving, investigating, and reporting 

complaints of instances of noncompliance with the DSO, jail removal, 

and separation requirements; and 

(i) Description of any barriers faced in 

implementing and maintaining a system 

adequate to monitor the level of 

compliance with the DSO, jail removal, 

and separation requirements, including 

(as applicable) an indication of how it 

plans to overcome such barriers. 

§ 31.8 Core requirement reporting. 

(a) Time period covered. The 

compliance monitoring report shall 

contain data for one full federal fiscal 

year (i.e., October 1st through the 

following September 30th). 

(b) Deadline for submitting 

compliance data. The compliance 

monitoring report shall be submitted no 

later than January 31st immediately 

following the fiscal year covered by the 

data contained in the report. 

(c) Certification. The information 

contained in a state’s compliance 

monitoring report, shall be certified in 

writing by a designated state official 

authorized to make such certification, 

which certification shall specify that the 

information in the report is correct and 

complete to the best of the official’s 

knowledge and that the official 

understands that a false or incomplete 

submission may be grounds for 

prosecution, including under 18 U.S.C. 

1001 and 1621. 

§ 31.9 Core requirement compliance 

determinations. 

(a) Compliance with the DSO 

requirement. A state is in compliance 

with the DSO requirement for a federal 

fiscal year when it has a rate of 

compliance at or below 0.24 per 100,000 

juvenile population in that year. 

(b) Compliance with the separation 

requirement. A state is in compliance 

with the separation requirement for a 

federal fiscal year when it has zero 

instances of non-compliance in that 

year. 

(c) Compliance with the jail removal 

requirement. A state is in compliance 

with the jail removal requirement for a 

federal fiscal year when it has a rate of 

compliance at or below 0.12 per 100,000 

juvenile population in that year. 

(d) Compliance with the DMC 

requirement. A state is in compliance 

with the DMC requirement when it 

includes a DMC report within its State 

Plan, which report contains the 

following: 

(1) A detailed description of adequate 

progress in implementing the following 

5-phase DMC reduction model: 

(i) Identification of the extent to 

which DMC exists, via the Relative Rate 

Index (a measurement tool to describe 

the extent to which minority youth are 

overrepresented at various stages of the 

juvenile justice system), which must be 

done both statewide and for at least 

three local jurisdictions (approved by 

the Administrator) with the highest 

minority concentration or with focusedDMC-reduction efforts, and at the 

following contact points in the juvenile 

justice system: Arrest, diversion, referral 

to juvenile court, charges filed, 

placement in secure correctional 

facilities, placement in secure detention 

facilities, adjudication as delinquent, 

community supervision, and transfer to 

adult court; 

(ii) Assessment and comprehensive 

analysis (which must be completed 

within 12 months of identification of 

the existence of DMC, or such longer 

period as may be approved by the 

Administrator) to determine the 

significant factors contributing to DMC 

identified pursuant to paragraph 

(d)(1)(i) of this section, at each contact 

point where it exists. Such assessment 

and comprehensive analysis shall be 

conducted— 

(A) When DMC is found to exist 

within a jurisdiction at any of the 

contact points listed in paragraph 

(d)(1)(i) of this section, and not less than 

once in every five years thereafter; 

(B) When significant changes in the 

Relative Rate Index are identified during 

the state’s monitoring of DMC trends; or 

(C) When significant changes in 

juvenile justice system laws, 

procedures, and policies result in 

statistically-significant increased rates 

of DMC; 

(iii) Intervention, through 

delinquency prevention and systemsimprovement strategies to reduce DMC 

that have been assessed under 

paragraph (d)(1)(ii), based on the results 

of the identification data and 

assessment findings, which strategies 

target communities where there is the 

greatest magnitude of DMC throughout 

the juvenile justice system and include, 

at a minimum, specific goals, 

measurable objectives, and selected 

performance measures; 

(iv) Evaluation (within three to five 

years of the DMC-related intervention 

under paragraph (d)(1)(iii)) of the 

effectiveness of the delinquency 

prevention and systems-improvement 

strategies, using appropriate formal, 

methodological evaluative instruments, 

including the appropriate Performance 

Measures for the Data Collection and 

Technical Assistance Tool (DCTAT), 

located on OJJDP’s Web site, which will 

assist in gauging short and long-term 

progress toward reducing DMC; and 

(v) Monitoring to track changes in 

DMC statewide and in the local 

jurisdictions under paragraph (d)(1)(i) of 

this section, in order to identify 

emerging issues affecting DMC and to 

determine whether there has been 

progress towards DMC reduction where 

it has been found to exist, to include the 

making of comparisons between current 

data and data obtained in earlier years 

and (when quantifiable data are 

unavailable to determine whether or to 

what extent the Relative Rate Index has 

changed) the provision of a timetable for 

implementing a data collection system 

to track progress towards reduction of 

such DMC; and 

(2) Where DMC has been found to 

exist— 

(i) A description of the prior-year’s 

progress toward reducing DMC; and 

(ii) An adequate DMC-reduction 

implementation plan (including a 

budget detailing financial and/or other 

resources dedicated to reducing DMC). 

Dated: July 27, 2016. 

Karol V. Mason, 

Assistant Attorney General. 

[FR Doc. 2016–18371 Filed 8–5–16; 8:45 am] 

BILLING CODE 4410–18–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2016–0424; FRL–9950–38– 

Region 8] 

Approval and Promulgation of Air 

Quality Implementation Plans; South 

Dakota; Revisions to the Permitting 

Rules 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

State Implementation Plan (SIP) 

revisions submitted by the State of 

South Dakota on October 23, 2015 and 

July 29, 2013 related to South Dakota’s 

Air Pollution Control Program. The 

October 23, 2015 submittal revises 

certain definitions and dates of 

incorporation by reference and contains 

new, amended and renumbered rules. In 

this rulemaking, we are taking final 

action on all portions of the October 23, 

2015 submittal, except for those 


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portions of the submittal which do not 

belong in the SIP. This action is being 

taken under section 110 of the Clean Air 

Act (CAA). 

DATES: Written comments must be 

received on or before September 7, 

2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2016–0424, at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

The EPA may publish any comment 

received to its public docket. Do not 

submit electronically any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.,) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Kevin Leone, Air Program, U.S. 

Environmental Protection Agency 

(EPA), Region 8, Mail Code 8P–AR, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129, (303) 312–6227, 

leone.kevin@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

What should I consider as I prepare 

my comments for the EPA? 

1. Submitting Confidential Business 

Information (CBI). Do not submit CBI to 

the 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 the 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, 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 

July 29, 2013 Submittal 

On July 29, 2013, the State of South 

Dakota submitted a SIP revision 

containing amendments 74:36:10:06 

(Causing or contributing to a violation of 

any national ambient air quality 

standard). This revision added 

significant impact levels (SILs) for 

particulate matter less than 2.5 microns 

(PM2.5.) as required in the EPA’s October 

20, 2010, PM2.5 ‘‘Increment Rule.’’ 

However, on January 22, 2013, the 

United States Court of Appeals for the 

District of Columbia Circuit vacated the 

SILs for PM2.5. On December 9, 2013, the 

EPA issued a final rule that removes the 

PM2.5 SILs from the EPA’s PSD 

regulations (78 FR 73698). As a result of 

this court decision and the EPA’s 

rulemaking, in the October 23, 2015, 

submittal, South Dakota removed the 

SILs for PM2.5 from section 74:36:10:06. 

This action effectively supersedes the 

July 29, 2013 action for 74:36:10:06. 

October 23, 2015 Submittal 

A. Chapter 74:36:01—Definitions 

Chapter 74:36:01 defines the terms 

used throughout Article 74:36—Air 

Pollution Control Program. There are six 

definitions in Chapter 74:36:01 that 

reference federal regulations. The 

sections in Chapter 74:36:01 that are 

being updated to the version of the 

federal reference as of July 1, 2014, 

involve the following: 74:36:01:01(8), 

74:36:01:01(29), 74:36:01:01(67), 

74:36:01:01(73), 74:36:01:05, and 

74:36:01:20. We will be acting on the 

revision to 74:36:01:01(73) in a separate 

rulemaking. This is addressed in more 

detail under section III of this 

rulemaking. 

South Dakota’s October 23, 2015 

submittal also added the phrase 

‘‘insignificant increase in allowable 

emissions’’ to the definition of ‘‘permit 

revision’’ in section 74:36:01(50) and 

revised the definition of ‘‘modification’’ 

in section 74:36:01:10 to allow an 

exception for insignificant increases in 

allowable emissions. This proposed 

rulemaking also adds a new definition 

for ‘‘Insignificant increases in allowable 

emissions’’ in section 74:36:01:10.01. 

This addition to the definition for 

‘‘insignificant increase in allowable 

emissions’’ is to account for all of the 

new federal standards covering small 

sources of air pollutants, to streamline 

the permitting actions for these small 

sources, and to be consistent with 

federal permitting requirements. This 

definition was derived from Table I in 

40 CFR 49.153 and is addressed in more 

detail under section III of this 

rulemaking. 

B. Chapter 74:36:02—Ambient Air 

Quality 

Chapter 74:36:02 established air 

quality goals and ambient air quality 

standards for South Dakota. The 

sections in Chapter 74:36:02 that are 

being updated to the version of the 

federal reference as of July 1, 2014, 

involve the following: 74:36:02:02, 

74:36:02:03, 74:36:02:04 and 

74:36:02:05. 

C. Chapter 74:36:03—Air Quality 

Episodes 

Chapter 74:36:03 identifies the 

contingency plan the South Dakota 

Department of Environment and Natural 

Resources (DENR) will follow during an 

air pollution emergency episode. The 

sections in Chapter 74:36:03 that are 

being updated to the version of the 

federal reference as of July 1, 2014, 

involve the following: 74:36:03:01 and 

74:36:03:02. 

D. Chapter 74:36:04—Operating Sources 

for Minor Sources 

Chapter 74:36:04 is South Dakota’s 

minor source air quality operating 

permit program. The section in Chapter 

74:36:04 that is being updated to the 

version of the federal reference as of 

July 1, 2014, involve the following: 

74:36:04:04. 

Section 74:36:04:03 lists emission 

units that are exempt from inclusion in 


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a minor air quality operating permit. 

Emission units may not be exempted if 

federally enforceable limits have been 

included in the permit to avoid other 

permits. The revisions are being 

proposed to clarify that any unit that is 

subject to a federal rule in Chapter 

74:36:07—New Source Performance 

Standards and Chapter 74:36:08— 

National Emission Standards for 

Hazardous Air Pollutants may not be 

exempted from inclusion in the minor 

air quality operating permit. 

A definition for ‘‘insignificant 

increase in allowable emissions’’ is 

being added to Chapter 74:36:01 to 

account for all of the new federal 

standards covering small sources of air 

pollutants, to stream line the permitting 

actions for these small sources, and to 

be consistent with the federal permitting 

requirements. As such, the revisions are 

proposing to add section 74:36:04:21.01 

which will identify procedures for 

processing an application for activities 

that are considered an ‘‘insignificant 

increase in allowable emissions.’’ This 

process will allow construction projects 

to move forward if the air pollution 

increase meets the definition of an 

‘‘insignificant increase in allowable 

emissions.’’ 

E. Chapter 74:36:05—Operating Sources 

for Part 70 Sources 

We are not taking action on revisions 

to this chapter. Title V permits are not 

part of the SIP. 

F. Chapter 74:36:07—New Source 

Performance Standards 

We are not taking action on revisions 

to this chapter. New source performance 

standards (NSPS) are not part of the SIP. 

G. Chapter 74:36:08—National Emission 

Standards for Hazardous Air Pollutants 

We are not taking action on revisions 

to this chapter. National emission 

standards for hazardous air pollutants 

(NESHAPs) are not part of the SIP. 

H. Chapter 74:36:09—Prevention of 

Significant Deterioration 

Chapter 74:36:09 is South Dakota’s 

PSD preconstruction program for major 

sources located in areas of the state that 

attain the federal national ambient air 

quality standards (NAAQS). The 

sections in Chapter 74:36:09 that are 

being updated to the version of the 

federal reference as of July 1, 2014, 

involve the following: 74:36:09:02 and 

74:36:09:03. This chapter also adds 

74:36:09:02(7), 74:36:09:02(8) and 

74:36:09:02(9). These provisions remove 

40 CFR 52.21(b)(49)(v) and references to 

40 CFR 52.21(b)(49)(v) from the SIP. 

I. Chapter 74:36:10—New Source 

Review 

Chapter 74:36:10 is South Dakota’s 

New Source Review (NSR) 

preconstruction permit program for 

major sources in areas of the state that 

are not attaining the NAAQS. All of 

South Dakota is in attainment with the 

federal standards; therefore, there are no 

facilities that require a preconstruction 

permit under this program. 

The sections in Chapter 74:36:10 that 

are being updated to the version of the 

federal reference as of July 1, 2014, 

involve the following: 74:36:10:02, 

74:36:10:03.01, 74:36:10:05, 74:36:10:07 

and 74:36:10:08. 

On March 30, 2011, the EPA extended 

the stay of the ‘‘Fugitive Emissions 

Rule’’ under the new source review 

program. The extension clarified the 

stay and revisions of specific paragraphs 

in the new source review program 

affected by the ‘‘Fugitive Emissions 

Rule.’’ Changes to 74:36:10:02 are 

proposed revise South Dakota’s SIP to 

remove these references. 

On January 22, 2013, the United 

States Court of Appeals for the District 

of Columbia Circuit vacated the 

significant impact levels for PM2.5 in the 

new source review program. The 

revisions to 74:36:10:06 reflect this 

court decision. 

J. Chapter 74:36:11—Performance 

Testing 

Chapter 74:36:11 identifies the 

performance testing requirements used 

by permitted facilities to demonstrate 

compliance with permit limits. The 

sections in Chapter 74:36:11 that are 

being updated to the version of the 

federal reference as of July 1, 2014, 

involve the following: 74:36:11:01. 

K. Chapter 74:36:12—Control of Visible 

Emissions 

Chapter 74:36:12 identifies visible 

emission limits for units that emit air 

pollution. The sections in Chapter 

74:36:12 that are being updated to the 

version of the federal reference as of 

July 1, 2014, involve the following: 

74:36:12:01 and 74:36:12:03. 

L. Chapter 74:36:13—Continuous 

Emission Monitoring Systems 

Continuous Emission Monitoring 

Systems are part of South Dakota’s Title 

V program and are not part of the SIP. 

M. Chapter 74:36:16—Acid Rain 

Program 

The Acid Rain Program is not part of 

the SIP. 

N. Chapter 74:36:18—Regulations for 

State Facilities in the Rapid City Area 

The sections in Chapter 74:36:18 that 

are being updated to the version of the 

federal reference as of July 1, 2014, 

involve the following: 74:36:18:10. 

O. Chapter 74:36:20—Construction 

Permits for New Sources or 

Modifications 

The reference date for the federal 

regulation is proposed to be updated to 

the most current version of the federal 

reference of July 1, 2014. This revision 

will update any minor inconsistency 

between South Dakota’s SIP and EPA’s 

federal regulations as of July 1, 2014. 

These proposed changes involve section 

74:36:20:05. 

South Dakota’s October 23, 2015, 

submittal adds certain pre-permit 

construction activities and also adds 

procedures for an ‘‘insignificant 

increase in allowable emissions.’’ These 

revisions are discussed in more detail in 

Section III of this rulemaking. 

III. What is the EPA proposing to 

approve? 

A. What the EPA Is Not Acting On 

1. The EPA is not acting on revisions 

to 74:36:05 (Operating Permits for Part 

70 Sources), 74:36:07 (New Source 

Performance Standards) and 74:36:08 

(National Emission Standards for 

Hazardous Air Pollutants) and 74:36:16 

(Acid Rain) because these sections are 

not part of the SIP. 

2. The EPA will act on revisions to 

74:36:01(73) (definition for Subject to 

Regulation), and 74:36:09:02(10) in a 

separate rulemaking. These revisions 

revise the definition of ‘‘Subject to 

Regulation’’ in the SIP. The definition of 

‘‘Subject to Regulation’’ is located in 40 

CFR 51.166(a)(48)(i)–(v) and 40 CFR 

52.21(b)(49)(i)–(v). 

On June 23, 2014, the U.S. Supreme 

Court (Utility Air Regulatory Group 

(UARG) v. EPA) held that the EPA may 

not treat greenhouse gases (GHGs) as an 

air pollutant for the specific purposes of 

determining whether a source is a major 

source and thus required to obtain a 

PSD or title V permit. On April 10, 

2015, the D.C. Circuit issued a Coalition 

Amended Judgement, which reflects the 

UARG v. EPA Supreme Court Decision. 

The EPA issued a final rulemaking 

addressing the court decision on August 

19, 2015 (80 FR 50199). 

The Coalition Amended Judgement 

only specifically ordered that the EPA 

regulations under review (including 40 

CFR 51.166(b)(48)(v) and 

52.21(b)(49)(v)) be vacated. In the EPA’s 

final rulemaking titled ‘‘Prevention of 

Significant Deterioration and Title V 


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Permitting for Greenhouse Gases: 

Removal of Certain Vacated Element,’’ 

which was published on August 19, 

2015 (80 FR 50199), we state: 

This final action removes from the CFR 

several provisions of the PSD and title V 

permitting regulations that were originally 

promulgated as part of the Tailoring Rule and 

that the D.C. Circuit specifically identified as 

vacated in the Coalition Amended 

Judgement. Because the D.C. Circuit 

specifically identified the Tailoring Rule Step 

2 PSD permitting requirements in 40 CFR 

51.166(b)(48)(v) and 52.21(b)(49)(v) and the 

regulations that require the EPA to consider 

further phasing-in the GHG permitting 

requirements at lower GHG emission 

thresholds in 40 CFR 52.22, 70.12 and 71.13 

as vacated, the EPA is taking the ministerial 

action of removing these provisions from the 

CFR. 

EPA further states: 

The EPA intends to further revise the PSD 

and title V regulations to fully implement the 

Coalition Amended Judgement in a separate 

rulemaking. This future rulemaking will 

include revisions to additional definitions in 

the PSD regulations. 

We are acting on 74:36:01(73) in a 

separate rulemaking because South 

Dakota added the sentence ‘‘Greenhouse 

gases are not subject to regulation unless 

a PSD preconstruction permit is issued 

regulating greenhouse gases in 

accordance with chapter 74:39:09.’’ This 

sentence is not in compliance with the 

current definition of ‘‘Subject to 

Regulation’’ in 40 CFR 51.166(b)(48) and 

52.21(b)(49). As mentioned previously 

in this rulemaking, the EPA intends to 

publish a future rulemaking which will 

revise additional definitions in the PSD 

regulations. However, the EPA’s 

rulemaking in 80 FR 50199 only 

removes 40 CFR 51.166(b)(48)(v). 

We are acting on 74:36:09(02)(10) in 

a separate rulemaking because 

74:36:09(02)(10) revises the definition of 

40 CFR 52.21(b)(49)(iv)(b). The revision 

is not in compliance with the current 

definition of ‘‘Subject to Regulation’’ in 

40 CFR 51.166(b)(48) and 

52.21(b)(49)(iv)(b). Section 

52.21(b)(49)(iv)(b) was not addressed in 

80 FR 50199. 

The EPA intends to act on these 

revisions after a future EPA rulemaking 

is published to include revisions to 

additional definitions in the PSD 

regulations. 

B. What the EPA Is Acting On 

The EPA is proposing to approve all 

revisions as submitted by the State of 

South Dakota on October 23, 2015, with 

the exception of the revisions 

mentioned in section III. A. of this 

rulemaking. This includes the following 

revisions: 

The Removal of PM2.5 SILs 

We are proposing to approve the 

removal of PM2.5 SILs from 74:36:10:06. 

On January 22, 2013, the U.S. Court 

of Appeals for the District of Columbia 

Circuit ruled on a challenge brought by 

the Sierra Club to the SILs and 

significant monitoring concentration 

(SMC) established for PM2.5 in the EPA’s 

October 20, 2010 rule for implementing 

the PM2.5 NAAQS. The court found 

there was no authority for the SMC 

established for PM2.5 and, as a result, 

vacated the SMC. With respect to the 

PM2.5 SIL, the court vacated and 

remanded the SIL to the EPA at the 

agency’s request. SILs and SMCs have 

been important screening tools that have 

been used to prevent unnecessary PSD 

permitting delays when the impact of 

the emission increases are considered 

de minimis. On December 9, 2013, the 

EPA issued a final rule that removes the 

PM2.5 SIL from the EPA’s PSD 

regulations. The final rule also sets the 

SMC in the EPA’s PSD regulations at 0 

mg/l, thus triggering the preconstruction 

monitoring requirement for any increase 

in ambient concentrations of PM2.5 from 

a major project. 

Pre-Permit Construction Activities 

Chapter 74:36:20 requires an air 

quality construction permit for new 

businesses/facilities and existing 

businesses/facilities that modify their 

operations that do not meet the 

requirements for obtaining a 

preconstruction permit in Chapters 

74:36:09 and 74:36:10. DENR submitted 

Chapter 74:36:20 to the EPA for 

inclusion in South Dakota’s SIP. The 

EPA approved Chapter 74:36:20 in 

South Dakota’s SIP on June 27, 2014, 

except for the phrase, ‘‘unless it meets 

the requirements in section 

74:36:20:02.01,’’ and all of section 

74:36:20:02.01 (79 FR 36419). This 

section was disapproved because 

construction was not limited to 

construction of concrete foundations, 

below ground plumbing, ductwork, or 

other infrastructure and/or excavation 

work prior to the issuance of the 

construction permit and there was no 

requirement for the source to receive a 

completeness determination (or some 

type of administrative approval) from 

the reviewing authority prior to 

construction. In this submittal, Section 

74:36:20:02.01 allows small projects to 

start construction, which is limited to 

construction of concrete foundations, 

below ground plumbing, ductwork, or 

other infrastructure and/or excavation 

work, after they receive a completeness 

determination and prior to receiving a 

construction permit but does not allow 

them to start operation until the 

construction permit has been issued. 

The intention of the language was to 

allow construction of small sources that 

would not impact South Dakota’s ability 

to achieve and/or maintain the NAAQS 

because of South Dakota’s relative short 

construction season due to ground 

freezing during the winter season or 

other inclement weather that could 

potentially and unnecessarily delay the 

construction project. These changes 

were made to resolve the issue with the 

EPA’s prior disapproval of section 

74:36:20:02.01 in South Dakota’s SIP. 

South Dakota’s proposed language 

sets specific conditions that must be met 

prior to a source commencing 

construction (but before a construction 

permit has been issued): (1) The owner/ 

operator has submitted a construction 

permit application; (2) The owner/

operator provided five days notice of 

their intention to initiate construction; 

(3) The new source or modification to 

an existing source is not subject to PSD 

or NSR (it has to be a true minor 

source); (4) The new source or 

modification is not subject to case-bycase MACT; (5) The owner/operator is 

liable for all construction conducted 

before the permit is issued, and the 

applicant may not operate any source 

equipment that may emit any air 

pollutant prior to receiving a permit; (6) 

The owner/operator must cease 

construction if the DENR demonstrates 

that the construction will interfere with 

the attainment or maintenance of a 

NAAQS or increment; and (7) The 

owner/operator must make any changes 

to the new source or modification of an 

existing source that may be imposed in 

the issued construction permit. 

This revision is in compliance with 

federal requirements, including: (1) 

CAA section 110(a)(2)(c), which 

requires states to include a minor NSR 

program in their SIP to regulate 

modifications and new construction of 

stationary sources within the area as 

necessary to assure the NAAQS are 

achieved; (2) The regulatory 

requirements under 40 CFR 51.160, 

including section 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 attainment or 

maintenance of the NAAQS; and (3) the 

statutory requirements under CAA 

section 110(l), which provides that the 

EPA cannot approve a SIP revision if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress, or any other applicable 

requirement of the CAA. 


ehiers on DSK5VPTVN1PROD with PROPOSALS
52392 Federal Register / Vol. 81, No. 152 / Monday, August 8, 2016 / Proposed Rules 

Insignificant Increase in Allowable 

Emissions 

On July 1, 2011, the EPA promulgated 

a federal minor source review program 

in Indian country (Tribal NSR Rule) (76 

FR 38748). The Tribal NSR Rule does 

not require a construction permit for 

new sources or modifications to existing 

sources if emissions are below the 

minor NSR threshold in Table 1 of 40 

CFR 49.153. 

In this rulemaking, the EPA 

established de minimis thresholds at 

which sources are to be exempt from 

permitting requirements for each 

regulated NSR pollutant (see 40 CFR 

49.153—Table 1) utilizing an allowableto-allowable applicability test. The EPA 

stated in this rulemaking that these 

threshold levels represent a reasonable 

balance between environmental 

protection and economic growth (76 FR 

38758). The EPA further recognized in 

designing the tribal NSR rule, that the 

overarching requirement is ensuring 

NAAQS protection (76 FR 38756) as 

described in CAA section 110(a)(2)(C). 

In order to determine that the sources 

below minor NSR permit thresholds in 

40 CFR 49.153—Table 1 would be 

inconsequential to attainment or 

maintenance of the NAAQS, the EPA 

performed a national source distribution 

analysis (see 71 FR 48702). In this 

analysis, the EPA looked at size 

distribution of existing sources across 

the country. Using the National 

Emissions Inventory (NEI), which 

includes the most comprehensive 

inventory of existing U.S. stationary 

point sources that is available, the EPA 

determined how many of these sources 

fall below the proposed minor NSR 

thresholds (see 71 FR 48702, Table 2). 

For each pollutant, the EPA found that 

only around 1 percent (or less) of total 

emissions would be exempt from review 

under the minor NSR program. At the 

same time, the thresholds would 

promote an effective balance between 

environmental protection and source 

burden because anywhere from 42 

percent to 76 percent of sources 

(depending on the pollutant) would be 

too small to be subject to 

preconstruction review (76 FR 38758). 

South Dakota, which contains areas of 

Indian country that are subject to the 

permitting thresholds in the tribal NSR 

rule, has established the same 

exemption levels as those in the tribal 

NSR rule. In addition, as the EPA 

explained in the tribal NSR rule, this 

will ‘‘allow us to begin leveling the 

playing field with the surrounding state 

programs and will result in a more costeffective program by reducing the 

burden on sources and reviewing 

authorities.’’ (see 76 FR 38758) 

In order to be consistent with the EPA 

and to streamline the process for 

insignificant increases in air emissions, 

DENR is proposing to add ‘‘insignificant 

increase in allowable emissions’’ to the 

definition of ‘‘permit revision’’ in 

section 74:36:01(50) and an exemption 

to the definition of ‘‘modification’’ in 

section 74:36:01:10, which will allow 

construction if the air emission 

increases meet the definition of an 

‘‘insignificant increase in allowable 

emissions.’’ This can also be referred to 

as a ‘‘de minimus exemption.’’ DENR is 

proposing to add a definition for 

‘‘insignificant increase in allowable 

emissions,’’ which is derived from Table 

1 in 40 CFR 49.153, in 74:36:01:10.01. 

This process would still require the 

project to be covered by a permit but 

would use a process similar to the EPA’s 

administrative amendment process. 

We have also reviewed South 

Dakota’s air monitoring data over the 

last 5 years (see docket). This data 

shows South Dakota is below the 

NAAQS for all criteria pollutants. 

The EPA notes that we have approved 

several similar de minimis exemption 

provisions in other states as follows: 

1. On January 16, 2003, the EPA 

approved a minor NSR program for the 

State of Idaho (68 FR 2217). This rule 

allows changes to be considered exempt 

from permitting if the source’s 

uncontrolled potential emissions are 

less than ten percent (10%) of the NSR 

significant emissions rate. For example: 

1.5 tons per year for PM10, 4 tons per 

year for volatile organic compounds 

(VOCs), nitrogen dioxide (NO2), and 

sulfur dioxide (SO2), and 10 tons per 

year for carbon monoxide (CO). The 

EPA determined in this instance that 

states may exempt from minor NSR 

certain categories of changes based on 

de minimis or administrative necessity 

grounds in accordance with the criteria 

set out in Alabama Power Co. v. Costle, 

636 F.2d 323 (D.C. Cir. 1979). De 

minimis sources are presumed to not 

have an impact and the state has 

determined that their emissions would 

not prevent or interfere with attainment 

of the NAAQS, even within 

nonattainment areas. 

2. On February 13, 2012, the EPA 

approved a five tons per year potential 

emissions level as a de minimis 

threshold to be exempt from permitting 

requirements in the State of Montana 

(77 FR 7531). In this final rulemaking, 

the EPA determined this de minimis 

threshold met the requirements of CAA 

section 110(a)(2)(C), 40 CFR part 51.160 

and CAA section 110(l). 

3. On May 27, 2008, the EPA 

approved a 25 tons per year actual 

emissions level as a de minimis 

threshold for fossil fuel burning 

equipment to be exempt from permitting 

requirements in the State of North 

Dakota, and a 5 ton per year actual 

emissions level as a de minimis 

threshold for any internal combustion 

engine, or multiple engines to be 

exempt from permitting requirements. 

The EPA determined the revision will 

not adversely impact the NAAQS or 

PSD increments (73 FR 30308). 

4. On February 1, 2006, the EPA 

approved a 5 tons per year actual 

emissions level as a de minimis 

threshold to be exempt from permitting 

requirements in the State of North 

Carolina (see 61 FR 3584). 

We evaluated the addition of 

‘‘insignificant increase in allowable 

emissions’’ to the South Dakota SIP 

using the following: (1) The statutory 

requirements under CAA section 

110(a)(2)(c), which requires states to 

include a minor NSR program in their 

SIP to regulate modifications and new 

construction of stationary sources 

within the area as necessary to assure 

the NAAQS are achieved; (2) the 

regulatory requirements under 40 CFR 

51.160, including section 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 attainment or 

maintenance of the NAAQS; and (3) the 

statutory requirements under CAA 

section 110(l), which provides that the 

EPA cannot approve a SIP revision if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress, or any other applicable 

requirement of the CAA. Therefore, the 

EPA will approve a SIP revision only 

after it is demonstrated that such a 

revision will not interfere 

(‘‘noninterference’’) with attainment of 

the NAAQS, Rate of Progress (ROP), 

RFP or any other applicable requirement 

of the CAA. 

We are proposing to approve the 

addition of ‘‘insignificant increase in 

allowable emissions.’’ These revisions 

are expected to be inconsequential to 

attainment and maintenance of the 

NAAQS because: (1) Section 74:36 has 

safeguards which prevent 

circumvention of NSR requirements; (2) 

Sources are still regulated by other rules 

within 74:36 and underlying statewide 

area source rules in the Administrative 

Rules of South Dakota (ARSD); (3) The 

insignificant thresholds in 

74:36:01:10.01 are the same as the de 

minimis level threshold in the Tribal 


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Federal Register / Vol. 81, No. 152 / Monday, August 8, 2016 / Proposed Rules 52393 

NSR rule and similar to many of the 

federally enforceable minor NSR 

programs in surrounding states and 

around the country; (4) South Dakota 

contains areas of Indian country that are 

subject to the permitting thresholds in 

the tribal NSR rule; and (5) The last 5 

years of monitoring data for criteria 

pollutants (see docket) show that all 

pollutants are below NAAQS levels. 

Removal of 40 CFR 52.21(b)(49)(v) From 

74:36:09 (PSD) 

We are approving the removal of 40 

CFR 52.21(b)(49)(v) from 74:36:09 to 

reflect the Coalition Amended 

Judgement, which only specifically 

ordered that the EPA regulations under 

review (including 40 CFR 

51.166(b)(48)(v) and 52.21(b)(49)(v)) be 

vacated. The EPA’s final rulemaking 

titled ‘‘Prevention of Significant 

Deterioration and Title V Permitting for 

Greenhouse Gases: Removal of Certain 

Vacated Element,’’ which was published 

on August 19, 2015 (80 FR 50199) 

removed 40 CFR 52.21(b)(49)(v) from 

the CFR. 

Proposed Correction to IBR Material in 

Previous Rulemaking 

In our final rule published in the 

Federal Register on February 16, 2016 

(81 FR 7706) we inadvertently used an 

incorrect approval date in the updates to 

the South Dakota regulatory table. The 

EPA is proposing to correct this error 

with today’s action. The IBR material for 

our February 16, 2016 action is 

contained within this docket. 

IV. What action is the EPA taking? 

For the reasons described in section 

III of this proposed rulemaking, the EPA 

is proposing to approve South Dakota’s 

October 23, 2015 submittal, with the 

exceptions noted in section III. Our 

action is based on an evaluation of 

South Dakota’s revisions against the 

requirements of CAA section 

110(a)(2)(c) and regulatory requirements 

under 40 CFR 51.160–164 and 40 CFR 

51.166. The EPA is also proposing to 

approve a correction to our final rule 

published in the Federal Register on 

February 16, 2016 (81 FR 7706). 

IV. Incorporation by Reference 

In this rule, the EPA is proposing to 

include in a final EPA rule regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, the EPA is 

proposing to incorporate by reference 

the Administrative Rules of South 

Dakota pertaining to section 74:36 as 

outlined in this preamble. The EPA has 

made, and will continue to make, these 

documents generally available 

electronically through 

www.regulations.gov and/or in hard 

copy at the appropriate EPA office (see 

the ADDRESSES section of this preamble 

for more information). 

V. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, 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, the EPA’s role is to 

approve state choices, provided that 

they meet the criteria of the Clean Air 

Act. Accordingly, this proposed action 

merely approves state law as meeting 

federal requirements and 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, 

October 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, August 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 Clean Air Act; 

and 

• does not provide the 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, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and the 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, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds, Incorporation by 

reference. 

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

Dated: July 26, 2016. 

Shaun L. McGrath, 

Regional Administrator, Region 8. 

[FR Doc. 2016–18759 Filed 8–5–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 745 

[EPA–HQ–OPPT–2016–0126; FRL–9950–27– 

OA] 

Section 610 Review of the 2008 Lead; 

Renovation, Repair, and Painting 

Program (RRP); Extension of Comment 

Period 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Extension of public comment 

period. 

SUMMARY: On June 9, 2016 the 

Environmental Protection Agency (EPA) 

published a request for comments on a 

Regulatory Flexibility Act section 610 

review titled, Section 610 Review of 

Lead-Based Paint Activities; Training 

and Certification for Renovation and 

Remodeling Section 402(C)(3) (Section 

610 Review). As initially published in 

the Federal Register, written comments 

were to be submitted to the EPA on or 

before August 8, 2016 (a 60-day public 

comment period). Since publication, the 

EPA has received a request for 

additional time to submit comments. 

Therefore, the EPA is extending the 

public comment period for 30 days until 

September 7, 2016. 

DATES: The public comment period for 

the review published June 9, 2016 (81 

FR 37373) is being extended for 30 days 

to September 7, 2016 in order to provide 

the public additional time to submit 

comments and supporting information. 

ADDRESSES: Comments: Submit your 

comments, identified by Docket ID No. 


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