21424 Federal Register / Vol. 79, No. 73 / Wednesday, April 16, 2014 / Proposed Rules 

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 CAA; and 

• Does not provide 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 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, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements. 

Dated: April 3, 2014. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2014–08638 Filed 4–15–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2014–0241; FRL–9909–49– 

Region 8] 

Partial Approval and Partial 

Disapproval and Promulgation of Air 

Quality Implementation Plans; South 

Dakota; Revisions to South Dakota 

Administrative Code; Permit: New and 

Modified Sources 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to partially 

approve and partially disapprove State 

Implementation Plan (SIP) revisions 

submitted by the State of South Dakota 

on June 14, 2010, June 20, 2011, and 

July 29, 2013. All three SIP revisions 

revise the Administrative Rules of South 

Dakota (ARSD) that pertain to the 

issuance of South Dakota air quality 

permits; in addition the June 14, 2010 

submittal revises certain definitions and 

dates of incorporation by reference. The 

June 14, 2010 revisions contain new, 

amended and renumbered rules; the 

June 20, 2011 revisions contain new 

rules, and the July 29, 2013 revisions 

contain amended rules. In this proposed 

rulemaking, we are taking action on the 

entire June 14, 2010 submittal, except 

for those portions of the submittal 

which do not belong in the SIP. We are 

also taking action on portions of the 

June 20, 2011 submittal that were not 

acted on in other rulemaking regarding 

greenhouse gases and the State’s 

Prevention of Significant Deterioration 

(PSD) program. We are taking action on 

portions of the July 29, 2013 submittal 

that supersede portions of the two 

previous submittals; the remainder of 

the July 29, 2013 submittal will be acted 

on at a later date. This action is being 

taken under section 110 of the Clean Air 

Act (CAA). 

DATES: Comments must be received on 

or before May 16, 2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2014–0241, by one of the 

following methods: 

• www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

• Email: leone.kevin@epa.gov 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Carl Daly, Director, Air 

Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. 

• Hand Delivery: Carl Daly, Director, 

Air Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. Such deliveries 

are only accepted Monday through 

Friday, 8:00 a.m. to 4:30 p.m., excluding 

federal holidays. Special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R08–OAR–2014– 

0241. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA, without going 

through www.regulations.gov, your 

email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to section I. 

General Information of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 


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Federal Register / Vol. 79, No. 73 / Wednesday, April 16, 2014 / Proposed Rules 21425 

1Under a proposed consent decree, by May 30, 

2014, EPA is required to sign a notice of final action 

to approve, disapprove, approve in part and 

disapprove in part, or conditionally approve this 

June 14, 2010 SIP submittal. WildEarth Guardians 

v. EPA, Civil Action No. 1:12–cv–03307 (D. Colo.). 

2For major sources and major modifications, the 

State already has two SIP-approved construction 

permit programs (PSD and nonattainment NSR) 

and, separately for major sources, a title V operating 

permit program that has been approved through the 

title V (not the SIP) process. 

3On February 11, 2014 (79 FR 8130) EPA 

proposed action on these provisions. EPA signed a 

final action on March 24, 2014. 

available only in hard copy. Publiclyavailable docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8:00 a.m. to 4:00 p.m., excluding 

federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Kevin Leone, Air Program, Mailcode 

8P–AR, Environmental Protection 

Agency, Region 8, 1595 Wynkoop 

Street, Denver, Colorado 80202–1129, 

(303) 312–6227, or leone.kevin@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. General Information 

II. Background 

III. What action is EPA taking? 

IV. What authorities apply to EPA’s proposed 

action? 

V. Summary 

VI. Statutory and Executive Orders Review 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

(i) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

(ii) The initials ARSD mean or refer to 

the Administrative Rules of South 

Dakota. 

(iii) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(iv) The initials NAAQS mean or refer 

to National Ambient Air Quality 

Standard. 

(v) The initials NESHAP mean or refer 

to National Emission Standards for 

Hazardous Air Pollutant. 

(vi) The initials NSPS mean or refer 

to New Source Performance Standard. 

(vii) The initials NSR mean or refer to 

New Source Review. 

(viii) The initials PSD mean or refer 

to prevention of significant 

deterioration. 

(ix) The initials SIP mean or refer to 

State Implementation Plan. 

(x) The words State or South Dakota 

mean the State of South Dakota, unless 

the context indicates otherwise. 

I. General Information 

A. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through 

www.regulations.gov or email. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to 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: 

a. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

b. Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

c. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

d. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

e. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

f. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

g. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

h. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background 

South Dakota’s June 14, 2010, 

submittal consists of four groups of rule 

changes: (1) Revisions to the definitions 

associated with the Air Pollution 

Control Program to ensure the 

definitions are current and consistent 

with other chapters in the regulations. 

These revisions include: grammatical 

changes, renumbering, modified 

definitions, new definitions and deleted 

definitions; (2) Revisions to the date of 

federal regulations referenced 

throughout ARSD Article 74:36; (3) 

Addition of a construction permit 

program for new minor sources and 

minor modifications to existing sources, 

created by adding new Chapter 74:36:20 

(Construction Permits for New Sources 

or Modifications); and (4) Revisions to 

the minor source operating permit 

programs to incorporate the changes 

associated with the new proposed 

construction permit program.1

In South Dakota’s current regulations 

in ARSD Article 74:36, the minor source 

construction permit and operating 

permit programs are combined so, in 

practice, a source receives one permit 

from the State which serves as both a 

construction and operating permit.2 The 

revisions in the June 14, 2010 submittal 

separate the two programs into a new 

minor source construction permit 

program and a minor source operating 

permit program. Under the new 

revisions, a source would first apply for 

a construction permit before applying 

for an operating permit. A cross-walk 

table, which discusses the rule revisions 

in Article 74:36 individually, and the 

action we are proposing, is included in 

the docket for this rulemaking. 

South Dakota’s June 14, 2010, 

submittal also contains rule revisions 

that are generally not included in SIPs. 

These rules, which we are not taking 

action on here (i.e. New Source 

Performance Standards (NSPS), 

operating permits for part 70 sources, 

etc.), are outlined in the cross-walk table 

located in the docket for this 

rulemaking. 

South Dakota’s June 20, 2011, 

submittal includes the following rule 

revisions: (1) Revises Sections 

74:36:01:01, 74:36:01:08, 74:36:01:15 

and 74:36:09:02 to comply with EPA’s 

Greenhouse Gas Tailoring Rule. 

Revisions to Sections 74:36:01:08, 

74:36:01:15 and 74:36:09:02 have been 

proposed; 3 EPA is proposing action on 

74:36:01:01 in this rulemaking; (2) 

Revises Chapter 74:36:20 by revising 

Section 74:36:20:02 (Construction 

Permits Required); and (3) Adds new 

Section 74:36:20:02.01 (Initiating 

Construction Prior to Permit Issuance). 

Section 74:36:20:02.01 allows sources 

who meet certain conditions to start 

construction prior to receiving a permit 

provided they meet the requirements in 

that section. EPA is proposing action on 


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21426 Federal Register / Vol. 79, No. 73 / Wednesday, April 16, 2014 / Proposed Rules 

4Under a proposed consent decree, by May 30, 

2014, EPA is required to sign a notice of final action 

to approve, disapprove, approve in part and 

disapprove in part, or conditionally approve this 

June 20, 2011 SIP submittal. WildEarth Guardians 

v. EPA, Civil Action No. 1:12–cv–03307 (D. Colo.). 

74:36:20:02 and 74:36:20:02.01 in this 

rulemaking.4

With respect to South Dakota’s July 

29, 2013 submittal, we are only 

proposing action on the following 

revisions: (1) Section 74:36:04:03.01 

(Minor Source Operating Permit 

Variance); and (2) 74:36:10 (New Source 

Review). 

III. What action is EPA taking? 

EPA is proposing to approve all 

revisions as submitted by South Dakota 

on June 14, 2010, except we are not 

acting on those portions of the submittal 

which do not belong in the SIP. EPA is 

proposing to partially approve and 

partially disapprove the revisions 

submitted on June 20, 2011. We are also 

proposing to approve portions of South 

Dakota’s July 29, 2013, submittal as 

outlined in Section II of this 

rulemaking. 

June 14, 2010 SIP Submittal 

74:36:01:01 (Definitions) 

We are proposing to approve all 

changes in this section as outlined in 

the crosswalk table (see docket). 

74:36:01:02 (Ambient Air Quality) 

We are proposing to approve changes 

in this section, which updates the 

federal reference. 

74:36:01:03 (Air Quality Episodes) 

We are proposing to approve changes 

in this section, which updates the 

federal reference. 

74:36:04 (Operating Permits for Minor 

Sources) 

We are proposing to approve all 

changes in this section. The 

modifications in this section were made 

to revise the minor source operating 

permit program to incorporate the 

changes associated with the new 

proposed construction permit program. 

As outlined in the crosswalk table, these 

changes include: (1) Grammatical 

changes which do not significantly 

change the meaning of the rule; (2) 

Updates to the federal references; and 

(3) re-organization of the rules. A few 

specific issues of note are discussed 

below: 

74:36:04:03 (Emission Unit 

Exemptions) 

In 74:36:04:03(6), South Dakota added 

an emission unit exemption for ‘‘routine 

housekeeping or plant upkeep activities 

such as painting buildings, retarring 

roofs or paving parking lots.’’ EPA asked 

South Dakota to clarify that they 

consider these activities to be de 

minimis in nature. South Dakota sent a 

letter to EPA dated March 18, 2014, 

clarifying that they consider these 

activities to be de minimis in nature (see 

docket). As explained in the letter, 

before South Dakota adopted the 

requirements for an air quality 

construction permit program, the 

construction and operating permit 

programs were combined for those 

facilities not required to obtain a PSD 

preconstruction permit. When South 

Dakota decided to separate the two 

programs, the insignificant activity list 

was incorporated into both programs. 

Routine housekeeping and plant upkeep 

had not originally been listed in the 

combined construction and operating 

permit program for minor sources 

because these activities were considered 

fugitive sources which are not regulated 

under the minor source program. We 

interpret the State’s listing of these 

activities as insignificant to characterize 

these emissions as de minimis with 

respect to attainment or maintenance of 

the National Ambient Air Quality 

Standards (NAAQS) and thus 

appropriate for permitting exemptions. 

Thus, when the State decided to 

separate the construction and operating 

permit program, it was decided to 

include exemptions for routine 

housekeeping and plant upkeep in the 

minor operating permit program as well 

as for the new construction permit 

program. In particular the example 

activities of painting buildings, retarring 

roofs, or paving parking lots appear to 

be de minimis. Based on the State’s 

letter, EPA proposes to approve this 

exemption. 

74:36:04:03.01 (Minor Source 

Operating Permit Variance) 

This rule was superseded by the 

subsequent July 29, 2013, submittal and 

we are proposing action on the rule 

elsewhere in this notice. 

74:36:04:32 (General Permits) 

In 74:36:04:32, EPA asked the State to 

clarify how they can ensure that the 

issuance of a general permit does not 

interfere with the NAAQS or any other 

requirements of the CAA. South Dakota 

sent a letter to EPA clarifying how their 

regulations ensure that construction of a 

source which applied for a general 

permit will not interfere with the 

NAAQS or any other requirement of the 

CAA (see docket). When issuing a 

general permit, the State applies the 

standard in 74:36:04:04 to determine 

that the permit will not interfere with 

the NAAQS. The permits are issued for 

a five-year period. Before renewing a 

general permit, the State considers 

whether renewal will interfere with the 

NAAQS or other applicable 

requirements. Based on this 

clarification, EPA proposes to approve 

South Dakota’s general permit 

provisions. In particular, EPA notes that 

the limited lifespan of a general permit 

helps to protect the NAAQS from 

unanticipated growth in a source 

category. 

74:36:05 (Operating Permits for Part 70 

Sources) 

We are not taking action on this 

section because part 70 provisions are 

not a required component under section 

110 of the CAA. Instead, we approve 

operating permit regulations under our 

operating permit regulations at 40 CFR 

part 70. 

74:36:07 (New Source Performance 

Standards) 

We are not taking action on this 

section because NSPS are not a required 

component under section 110 of the 

CAA. 

74:36:08 (National Emission Standards 

for Hazardous Air Pollutants) 

We are not taking action on this 

section because National Emission 

Standards for Hazardous Air Pollutants 

(NESHAPs) are not a required 

component under section 110 of the 

CAA. 

74:36:09 (Prevention of Significant 

Deterioration) 

The proposed changes were acted on 

in 76 FR 43912 (July 22, 2011). 

74:36:10 (New Source Review) 

The proposed changes are superseded 

by the July 29, 2013 submittal. We are 

acting on the proposed changes to 

74:36:10 as submitted on July 29, 2013. 

74:36:11 (Performance Testing) 

We are proposing to approve changes 

in this section, which updates the 

federal reference. 

74:36:12 (Control of Visible Emissions) 

We are proposing to approve changes 

in this section, which updates the 

federal reference. 

74:36:13 (Continuous Emissions 

Monitoring) 

We are proposing to approve changes 

in this section, which updates the 

federal reference. 

74:36:16 (Acid Rain Program) 

We are not taking action on this 

section because the Acid Rain Program 


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is not a required component under 

section 110 of the CAA. 

74:36:18 (Regulations for State 

Facilities in the Rapid City Area) 

We are proposing to approve changes 

in this section, which updates the 

visible emission test method to EPA 

Method 9 in 40 CFR part 60, Appendix 

A (July 1, 2009). 

74:36:19 (Mercury Budget Trading 

Program) 

We are not taking action on this 

section because it is not a required SIP 

component under section 110 of the 

CAA. 

74:36:20 (Construction Permits for 

New Sources or Modifications) 

We are proposing to approve this new 

section because it meets the 

requirements of the CAA and 40 CFR 

51.160 and 161. In particular: 

(1) 74:36:20:02 (Construction Permit 

Required) requires a construction permit 

before a source can construct, install, 

modify or operate a source or unit. Note 

that, as discussed separately below, this 

requirement was modified in the June 

20, 2011 SIP submittal. 

(2) 74:36:20:05 (Standard for issuance 

of construction permit) states that a 

construction permit will be issued only 

if it has been shown that the operation 

of the new source or modification to an 

existing source will not prevent or 

interfere with the attainment or 

maintenance of an applicable NAAQS. 

(3) 74:36:20:06 (Timely and complete 

application for a construction permit 

required) allows the State or local 

agency to determine whether or not the 

construction or modification of a facility 

will interfere with the NAAQS or 

control strategy. 

(4) 74:36:20:10 (Time period for 

department’s recommendation) allows 

the State or local agency to prevent the 

construction or modification of a facility 

if it will interfere with the NAAQS or 

control strategy. 

(5) 74:36:20:11 (Public participation 

in permitting process) allows for a 30- 

day period for submittal of public 

comment. 

June 20, 2011 SIP Submittal 

74:36:01:01(73) (Subject to Regulation) 

We are proposing to approve the 

definition of ‘‘Subject to Regulation’’ to 

comply with EPA’s Greenhouse Gas 

Tailoring Rule revisions published on 

June 3, 2010. 

In our February 11, 2014 action (79 

FR 8130), EPA proposed approval of 

revisions to the State’s PSD program to 

incorporate the provisions of the federal 

PSD and Title V Greenhouse Gas 

Tailoring Rule (Tailoring Rule). The SIP 

revisions incorporate by reference the 

federal Tailoring Rule’s emission 

thresholds for determining which new 

stationary sources and modifications to 

existing stationary sources become 

subject to South Dakota’s PSD 

permitting requirements for their 

greenhouse gas emissions. 

Outside of the PSD program, the June 

20, 2011 SIP submittal proposed in 

Section 74:36:01:01, Definitions, to add 

‘‘(73) ‘‘Subject to regulation’’ as defined 

in 40 CFR 70.2 (July 1, 2009), as revised 

in publication 75 FR 31607 (June 3, 

2010), in accordance with EPA 

requirements.’’ We did not propose 

action on that part of the submittal as 

part of our February 11, 2014 proposal 

because it applies to the title V 

operating permit program, which is not 

part of the SIP. However, in reviewing 

the June 20, 2011 submittal for this 

proposed action, we realized that South 

Dakota intended for the definition of 

‘‘subject to regulation’’ to be applied 

throughout its rules. In fact, the 

language ‘‘subject to regulation’’ is 

included in the updated definition of 

major sources that we proposed to 

approve in our February 11, 2014 

action, so for consistency we propose to 

approve the definition at this time. 

74:36:04:20:01 (Initiating Construction 

Prior to Permit Issuance) 

Does the new rule that allows for 

Initiating Construction Prior to Permit 

Issuance meet the CAA and regulatory 

requirements? 

The new South Dakota rule 

74:36:20:02.01 ‘‘Initiating Construction 

Prior to Permit Issuance’’ allows certain 

projects to begin construction prior to 

receiving approval from the State, and 

contains some safeguards. Under new 

rule 74:36:20:02.01 an owner or operator 

may initiate construction without 

receiving a permit from the State as long 

as they have submitted a construction 

permit application and notified the 

Department of ‘‘its intentions to initiate 

construction prior to issuance of the 

construction permit five working days 

before initiating construction.’’ 

74:36:20:2.01 (1)–(2). Only ‘‘true minor’’ 

sources and modifications can construct 

prior to receiving a permit. 

74:36:20:2.01 (3)–(4). The source is not 

allowed to operate equipment ‘‘in any 

way that may emit any air pollutant 

prior to receiving a construction 

permit.’’ 74:36:20:2.01(5). The rule 

provides that the owner or operator 

must assume liability for construction 

conducted before the permit is issued, 

and must cease construction if the 

department demonstrates that 

construction of the new source or 

modification will interfere with the 

attainment or maintenance of a NAAQS 

or increment. 74:36:20:2.01 (5)–(6). 

Finally, the owner or operator is 

required to make any change to the 

source that may be imposed in the 

issued construction permit. 

74:36:20:2.01(7). 

We are proposing to disapprove this 

section in its entirety because it allows 

complete construction of a true minor 

source before any type of State review, 

which is inconsistent with the 

requirements in 40 CFR 51.160(a) and 

(b) and Section 110(a)(2)(C) of the Act; 

because it would also create ‘‘equity in 

the ground’’ issues that might 

compromise compliance with 40 CFR 

51.160(a) and (b); and because it is 

inconsistent with the public comment 

requirements in 40 CFR 51.161. 

Summary of the Federal Clean Air Act 

and Regulatory Requirements 

Section 110(a)(2)(C) of the Act 

contains the requirements for 

preconstruction review programs for 

minor sources and requires that each 

SIP include a program to regulate the 

construction and modification of 

stationary sources as necessary to assure 

that the NAAQS are achieved. 

EPA’s minor source implementing 

regulations are in 40 CFR 51.160– 

51.164. The regulations require that a 

SIP include ‘‘legally enforceable 

procedures that enable’’ the permitting 

agency to determine whether 

construction ‘‘will result in’’ 

interference with the NAAQS, 40 CFR 

51.160(a). The SIP must also include the 

means by which a state or local agency 

can ‘‘prevent’’ construction that ‘‘will 

interfere with the attainment or 

maintenance of a national standard.’’ 40 

CFR 51.160(b). 40 CFR 51.161(a) 

requires that the legally enforceable 

procedures in 40 CFR 51.160 must also 

require the state or local agency to 

provide opportunity for public comment 

on information submitted by owners or 

operators. The public information must 

include the agency’s analysis of the 

effect of construction or modification on 

ambient air quality, including the 

agency’s proposed approval or 

disapproval. 40 CFR 51.161(b) requires 

a minimum 30-day public comment 

period. 

What Is EPA’s evaluation? 

We propose to find that the State’s 

new rule that allows construction of 

certain projects subject to the minor 

source program prior to permit issuance 

is inconsistent with the requirements of 

the CAA and implementing regulations. 

EPA expressed concern about the State’s 

proposed approach in our comments on 


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21428 Federal Register / Vol. 79, No. 73 / Wednesday, April 16, 2014 / Proposed Rules 

5The State also received public comments from 

13 individuals on this issue and related concerns. 

State of South Dakota SIP Submittal, these 

comments appear in the SIP starting at PDF page 

80. (June 14, 2011, part 2 of 2). 

6State of South Dakota SIP Submittal, at PDF 

pages 170–171 (June 14, 2011, part 1 of 2). 7State of South Dakota SIP Submittal, at PDF 

page 105 (June 14, 2011, part 2 of 2) (Board of 

Minerals and Environment Minutes, February 17, 

2011). 

8One option for South Dakota, which is 

consistent with its stated goals, is to amend its prepermit construction regulations to allow certain 

limited, seasonal, pre-permit construction activities 

and specify which activities are allowed, and 

exclude construction of any emitting unit. An 

example of this type of pre-permit construction 

language can be found in the Administrative Rules 

of Montana (ARM) 17.8.743(2), which EPA 

approved on August 8, 2011 (76 FR 40237). 

South Dakota’s proposed rule in January 

2011 because as proposed the rules were 

inconsistent with 40 CFR 51.160(b), 

explaining that 5: 

‘‘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 

permitting 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 

attainment or maintenance of the NAAQS.’’ 

The final rule as adopted by the State 

was not revised to address these 

concerns and allows complete 

construction of a true minor source 

before any type of State review. The rule 

does not require the permitting 

authority to take affirmative action and 

approve construction before 

construction permit approval. 

Therefore, neither the State, public, nor 

EPA can determine whether the project 

will be in compliance with the CAA and 

implementing regulations before 

construction. 

In addition to being inconsistent with 

the requirements of 40 CFR 51.160(a), 

the rule is inconsistent with Section 

110(a)(2)(C) of the Act because the rule 

lacks provisions to protect the NAAQS 

and prohibit any source from emitting 

air pollutants which will interfere with 

the NAAQS. Notwithstanding the fact 

that the owner or operator is required to 

provide a five day notice to the State 

before commencing construction, there 

is no procedure in the State’s rule to 

determine prior to construction, if the 

construction or modification will violate 

a control strategy or interfere with 

attainment and maintenance of the 

NAAQS, which is required under 40 

CFR 51.160(a). 

The State rule also does not satisfy the 

public participation requirements in 40 

CFR 51.161, which require a minimum 

30-day period for public comment on 

the information submitted by the owner 

or operator prior to construction, as well 

as an opportunity for the public to 

review the State’s analysis and 

recommendations regarding 

construction approval or disapproval. 

74:36:20:02.01 also allows for 

complete construction of a true minor 

source, which would create equity in 

the ground issues. Allowing for 

complete construction could 

compromise compliance with 40 CFR 

51.160(a) and (b) because, although 

74:36:20:02.01 requires that the owner 

or operator must assume any liability for 

construction conducted on a source 

before a permit is issued, the economic 

impact of denying a permit after 

complete construction of a source could 

influence the decision to approve or 

deny a permit. Additionally, once fully 

constructed, there may be fundamental 

design issues that cannot be overcome 

should the State seek required 

modifications from the owner or 

operator. 

EPA’s review of other states, which 

have EPA approved pre-permit 

construction regulations found that 

most of the other state SIPs require some 

type of permitting agency review and 

preauthorization/administrative 

approval prior to construction. 

We understand South Dakota’s goals 

in promulgating rule 74:36:20:02.01, as 

expressed during the State’s rulemaking, 

were to ‘‘expedite the construction of 

specific facilities that will have minimal 

impact to the ambient air and for those 

projects that may be impacted by 

inclement weather (i.e. winter 

months),’’ 6 ‘‘and to ensure that new 

businesses and existing businesses 

looking to expand are permitted in an 

expedited manner.’’ 7 If requested by 

South Dakota, EPA will work with the 

State to develop revised rules that are 

consistent with the State goals and also 

consistent with the CAA and 

implementing regulations.8 We 

acknowledge that EPA may have 

approved some state minor source 

programs with approaches/requirements 

similar to those proposed by South 

Dakota, which may warrant EPA 

evaluation in the future. 

In conclusion, although 

74:36:20:02.01 has some safeguards as 

noted above, it is not in compliance 

with Section 110(a)(2)(C) of the Act, 40 

CFR 51.160(a) and (b), and 40 CFR 

51.161. Therefore, for the reasons 

outlined above, we are proposing to 

disapprove 74:36:20:02.01. 

74:36:04:20:02 (Construction Permit 

Required) 

Because EPA is disapproving 

74:36:20:02.01, we are also disapproving 

the phrase: ‘‘unless it meets the 

requirements in 74:36:20:02.01’’ in 

74:36:04:20:02. 

July 29, 2013 SIP Submittal 

74:36:04:03.01 (Minor Source 

Operating Permit Variance) 

We are proposing to approve the 

deletion of this section. 

74:36:10 (New Source Review) 

We are proposing to approve changes 

in this section, which updates the 

federal references and deletes obsolete 

provisions regarding clean units and 

pollution control projects. We note that 

the State clarified that it is not adopting 

any provisions in 40 CFR 51.165 that 

were marked as stayed as of the date of 

incorporation by reference. We also note 

that, as mentioned in the State’s letter, 

that there are currently not any 

nonattainment areas designated in 

South Dakota. If in the future any are 

designated for a particular pollutant, the 

State will then be obliged to review and 

if necessary revise its nonattainment 

NSR program to meet all applicable 

requirements for that pollutant, 

including proper treatment of relevant 

precursors. 

IV. What authorities apply to EPA’s 

proposed action? 

In determining whether SIP revisions 

submitted by the State of South Dakota 

on June 14, 2010, June 20, 2011 and July 

29, 2013, are approvable or not 

approvable, EPA applied the following 

authorities: 

The CAA at Section 110(a)(2)(C) 

requires states to include a minor NSR 

program or alternative measures in their 

SIP to regulate modifications and new 

construction of stationary sources 

within the area as necessary to assure 

the NAAQS are achieved. In particular, 

section 110(a)(2)(C) was applied to 

determine approvability of all three 

submittals we are proposing action on 

in this rulemaking. 

EPA’s implementing regulations at 40 

CFR 51.160–164 are intended to ensure 

that new source growth is consistent 


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Federal Register / Vol. 79, No. 73 / Wednesday, April 16, 2014 / Proposed Rules 21429 

with maintenance of the NAAQS. The 

authorities in EPA’s implementing 

regulations which we are applying in 

this rulemaking are: (1) 40 CFR 

51.160(a), which requires that the SIP 

include legally enforceable procedures 

that enable a state or local agency to 

determine whether construction or 

modification of a facility, building, 

structure or installation, or combination 

of these will result in a violation of 

applicable portions of the control 

strategy or interference with attainment 

or maintenance of a national standard in 

the state in which the proposed source 

(or modification) is located or in a 

neighboring state; (2) 40 CFR 51.160(b) 

requires these procedures must include 

a means by which the state or local 

agency can prevent a construction or 

modification if the construction or 

modification will result in a violation of 

applicable portions of the control 

strategy or interference with attainment 

or maintenance of a national standard. 

40 CFR 51.162–164 are not applicable to 

the SIP revisions we are proposing 

action on in this rulemaking. We 

applied 40 CFR 51.160(a), 40 CFR 

51.160(b) and 40 CFR 51.161 to 

determine the approvability of 

74:36:04:20:02. 

Section 110(i) of the CAA specifically 

precludes states from changing the 

requirements of the SIP except through 

SIP revisions approved by EPA. SIP 

revisions will be approved by EPA only 

if they meet all requirements of section 

110 of the CAA and the implementing 

regulations at 40 CFR part 51. See CAA 

section 110(l); and 40 CFR 51.104. 

V. Summary 

In this proposed rulemaking, we are 

proposing partial approval and partial 

disapproval of the new and revised 

rules and renumbering of rules as 

outlined in section III above and in the 

crosswalk table located in the docket. In 

particular, we are proposing the 

following actions: 

June 14, 2010 Submittal 

We are proposing to approve the 

following: 74:36:01:01 (Definitions); 

74:36:01:02 (Ambient Air Quality); 

74:36:01:03 (Air Quality Episodes); 

74:36:04 (Operating Permits for Minor 

Sources); 74:36:11 (Performance 

Testing); 74:36:12 (Control of Visible 

Emissions); 74:36:13 (Continuous 

Emissions Monitoring); 74:36:18 

(Regulations for State Facilities in the 

Rapid City Area); and 74:36:20 

(Construction Permits for New Sources 

or Modifications). 

We are not taking action on the 

following: 74:36:05 (Operating Permits 

for Part 70 Sources); 74:36:07 (New 

Source Performance Standards); 

74:36:08 (National Emission Standards 

for Hazardous Air Pollutants); 74:36:09 

(Prevention of Significant 

Deterioration); 74:36:16 (Acid Rain 

Program); and 74:36:19 (Mercury Budget 

Trading Program). 

June 20, 2011 Submittal 

We are proposing to approve the 

following: 74:36:01:01(73) (Subject to 

Regulation). 

We are proposing to disapprove the 

following: 74:36:04:20:01 (Initiating 

Construction Prior to Permit Issuance), 

the phrase: ‘‘unless it meets the 

requirements in 74:36:20:02.01’’ in 

74:36:04:20:02 (Construction Permit 

Required). 

July 29, 2013 Submittal 

We are proposing to approve deletion 

of the following: 74:36:04:03.01 (Minor 

Source Operating Permit Variance). 

We are proposing to approve the 

following: 74:36:10 (New Source 

Review). 

We are proposing partial approval and 

partial disapproval based on the 

authorities as outlined in section IV of 

this rulemaking. As explained in this 

rulemaking, the South Dakota rules we 

are proposing to approve meet the 

statutory requirements of CAA section 

110(a)(2)(C), the regulatory requirements 

of 40 CFR 51.160 and 40 CFR 51.161. 

We are proposing to disapprove the 

revisions which do not meet the 

statutory requirements of CAA section 

110(a)(2)(C) and the regulatory 

requirements of 40 CFR 51.160 and 40 

CFR 51.161. For additional information, 

see the cross-walk table and South 

Dakota’s letter of clarification located in 

the docket. 

VI. Statutory and Executive Orders 

Review 

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, 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 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 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 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, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: April 3, 2014. 

Shaun L. McGrath, 

Regional Administrator, Region 8. 

[FR Doc. 2014–08500 Filed 4–15–14; 8:45 am] 

BILLING CODE 6560–50–P 


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