[Federal Register Volume 61, Number 19 (Monday, January 29, 1996)]
[Rules and Regulations]
[Pages 2720-2722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1545]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[SD-001; FRL-5406-1]


Clean Air Act Final Full Approval of Operating Permits Program; 
State of South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final full approval.

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SUMMARY: The EPA is promulgating final full approval of the Operating 
Permits Program submitted by the State of South Dakota for the purpose 
of complying with Federal requirements for an approvable State Program 
to issue operating permits to all major stationary sources, and to 
certain other sources.

EFFECTIVE DATE: February 28, 1996.

ADDRESSES: Copies of the State's submittal and other supporting 

[[Page 2721]]
information used in developing the final full approval are available 
for inspection during normal business hours at the following location: 
U.S. Environmental Protection Agency, Region 8, 999 18th Street, suite 
500, Denver, Colorado 80202.

FOR FURTHER INFORMATION CONTACT: Patricia Reisbeck, 8ART-AP, U.S. 
Environmental Protection Agency, Region 8, 999 18th Street, suite 500, 
Denver, Colorado 80202, (303) 312-6441.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    Title V of the 1990 Clean Air Act Amendments (sections 501-507 of 
the Clean Air Act (``the Act'')), and implementing regulations at 40 
Code of Federal Regulations (CFR) part 70 (part 70) require that States 
develop and submit operating permits programs to EPA by November 15, 
1993, and that EPA act to approve or disapprove each program within one 
year after receiving the submittal. The EPA's program review occurs 
pursuant to section 502 of the Act and the part 70 regulations, which 
together outline criteria for approval or disapproval. Where a program 
substantially, but not fully, meets the requirements of part 70, EPA 
may grant the program interim approval for a period of up to two years. 
If EPA has not fully approved a program by two years after the November 
15, 1993 date, or by the end of an interim program, it must establish 
and implement a Federal program.
    On September 21, 1995, EPA published a Federal Register notice 
proposing full approval of the Operating Permits Program (PROGRAM) for 
the State of South Dakota. See 60 FR 48942. EPA received one public 
comment on the proposal, which is addressed below, and is taking final 
action to promulgate full approval of the South Dakota PROGRAM.

II. Final Action and Implications

A. Analysis of State Submission

    The Governor of South Dakota's designee, Robert E. Roberts, 
Secretary of the Department of Environment and Natural Resources, 
submitted the State of South Dakota Title V Operating Permit Program 
(PROGRAM) to EPA on November 12, 1993. On March 22, 1995, EPA published 
a Federal Register document promulgating final interim approval of the 
South Dakota PROGRAM. See 60 FR 15066. Full approval of the South 
Dakota PROGRAM was not possible at that time due to the following issue 
identified during EPA's PROGRAM review: The State's criminal 
enforcement statute only allowed for a maximum penalty of $1,000 for 
failure to obtain a permit and $500 for violation of a permit 
condition. The State was required to adopt legislation consistent with 
Sec. 70.11, prior to receiving full PROGRAM approval, to allow for a 
maximum criminal fine of not less than $10,000 per day per violation 
for knowing violation of operating permit requirements, including 
making a false statement and tampering with a monitoring device. In a 
letter dated April 21, 1995, the State submitted evidence that this 
corrective action had been completed, which EPA has reviewed and has 
determined to be adequate to allow for full PROGRAM approval. This 
corrective action included the adoption of Senate Bill 36 by the South 
Dakota Legislature which contains the necessary language to allow for 
criminal penalties consistent with Sec. 70.11.
    Requirements for approval, specified in 40 CFR 70.4(b), encompass 
section 112(l)(5) requirements for approval of a program for delegation 
of the provisions of 40 CFR part 63, Subpart A, and section 112 
standards promulgated by EPA. Section 112(l)(5) requires that the 
State's program contain adequate authorities, adequate resources for 
implementation, and an expeditious compliance schedule, which are also 
requirements under part 70. EPA granted approval of the State's 
PROGRAM, under section 112(l)(5) and 40 CFR 63.91, for receiving 
delegation of section 112 standards that are unchanged from the Federal 
standards as promulgated for part 70 sources in the Federal Register 
document promulgating final interim approval of the South Dakota 
PROGRAM. See 60 FR 15066. Based on a State request, EPA is granting the 
expansion of this approval to include non-part 70 sources. EPA believes 
this is warranted because State law does not differentiate between part 
70 and non-part 70 sources for purposes of implementation and 
enforcement of section 112 standards that the State adopts. This 
approval does not delegate authority to the State to enforce specific 
section 112 standards, but instead establishes a basis for the State to 
request and receive future delegation of authority to implement and 
enforce, for non-part 70 sources, section 112 standards that the State 
adopts without change.
    The scope of the PROGRAM and all of the clarifications made in the 
Federal Register document proposing interim approval of the South 
Dakota PROGRAM still apply. See 60 FR 2917.

B. Response to Comments

    The comment received on the September 21, 1995 Federal Register 
notice proposing full approval of the South Dakota PROGRAM, and EPA's 
response to that comment, is as follows:
    Comment: The commenter noted that EPA had indicated in its proposal 
that approval of South Dakota's PROGRAM would not extend to any lands 
within Indian Country. The commenter, apparently referring to South 
Dakota's submission to EPA asserting jurisdiction to enforce a part 70 
PROGRAM within Indian reservations, expressed ``opposition to South 
Dakota's proposal, insofar as it claims authority over lands within the 
boundaries of the Standing Rock Sioux Reservation.'' The commenter 
asserted that South Dakota's jurisdictional arguments ignore the 
express language of the Act and the territorial component of Tribal 
sovereignty. The commenter cited various Supreme Court cases and 
provisions of the Act. The commenter urged EPA to reject South Dakota's 
effort to assert jurisdiction on Indian reservation lands.
    EPA Response: The commenter correctly noted that EPA's proposal to 
fully approve the State's part 70 PROGRAM does not extend to ``Indian 
Country,'' as defined in 18 U.S.C. 1151. EPA does not believe the 
commenter was making an adverse comment on this aspect of EPA's 
proposed action, and this final action makes no changes to this aspect 
of the proposal. As noted in the proposal and in this action, the State 
has asserted it has jurisdiction to enforce a PROGRAM within Indian 
reservations and has provided an analysis of such jurisdiction. 
However, EPA is not acting on the State's analysis in this action. 
Thus, EPA does not believe the commenter's objections to the State's 
jurisdictional assertions are directly pertinent to this action and 
will not respond to them here. The commenter may wish to re-submit such 
comments at the time EPA proposes action on the State's jurisdictional 
analysis.

C. Final Action

    The EPA is promulgating full approval of the Operating Permits 
Program submitted by the State of South Dakota on November 12, 1993. 
Among other things, South Dakota has demonstrated that the PROGRAM will 
be adequate to meet the minimum elements of a State operating permits 
program as specified in 40 CFR part 70. EPA is also approving the 
expansion of South Dakota's PROGRAM for receiving 

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delegation of section 112 standards to include non-part 70 sources.
    The scope of South Dakota's PROGRAM that EPA is approving in this 
notice does not extend to ``Indian Country,'' as defined in 18 U.S.C. 
1151, including the following ``existing or former'' Indian 
reservations in the State: 1. Cheyenne River; 2. Crow Creek; 3. 
Flandreau; 4. Lower Brule; 5. Pine Ridge; 6. Rosebud; 7. Sisseton; 8. 
Standing Rock; and 9. Yankton.
    The State has asserted it has jurisdiction to enforce a PROGRAM 
within some or all of these ``existing or former'' Indian reservations 
and has provided an analysis of such jurisdiction. EPA is in the 
process of evaluating the State's analysis and will issue a 
supplemental notice regarding this issue in the future. Before EPA 
would approve the State's PROGRAM for any portion of ``Indian 
Country,'' EPA would have to be satisfied that the State has authority, 
either pursuant to explicit Congressional authorization or applicable 
principles of Federal Indian law, to enforce its laws against existing 
and potential pollution sources within any geographical area for which 
it seeks program approval and that such approval would constitute sound 
administrative practice. This is a complex and controversial issue and 
EPA does not wish to delay full approval of the State's PROGRAM with 
respect to undisputed sources while EPA resolves this question.
    In deferring final action on PROGRAM approval for sources located 
in ``Indian Country,'' EPA is not making a determination that the State 
either has adequate jurisdiction or lacks such jurisdiction. Instead, 
EPA is deferring judgment regarding this issue pending EPA's evaluation 
of the State's analysis.

III. Administrative Requirements

A. Docket

    Copies of the State's submittal and other information relied upon 
for the final full approval, including public comments received and 
reviewed by EPA on the proposal, are maintained in a docket at the EPA 
Regional Office. The docket is an organized and complete file of all 
the information submitted to, or otherwise considered by, EPA in the 
development of this final full approval. The docket is available for 
public inspection at the location listed under the ADDRESSES section of 
this document.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

C. Regulatory Flexibility Act

    The EPA's actions under section 502 of the Act do not create any 
new requirements, but simply address operating permits programs 
submitted to satisfy the requirements of 40 CFR part 70. Because this 
action does not impose any new requirements, it does not have a 
significant impact on a substantial number of small entities.

D. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(Unfunded Mandates Act), signed into law on March 22, 1995, EPA must 
prepare a budgetary impact statement to accompany any proposed or final 
rule that includes a Federal mandate that may result in estimated costs 
to state, local, or tribal governments in the aggregate; or to the 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that this proposed approval does not include a 
Federal mandate that may result in estimated costs of $100 million or 
more to either state, local, or tribal governments in the aggregate, or 
to the private sector. This Federal action approves pre-existing 
requirements under state or local law, and imposes no new Federal 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: December 14, 1995.
Jack W. McGraw,
Acting Regional Administrator.

    Part 70, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

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

    2. Appendix A to part 70 is amended by adding the entry for South 
Dakota in alphabetical order to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

South Dakota

    (a) South Dakota Department of Environment and Natural 
Resources--Division of Environmental Regulations: submitted on 
November 12, 1993; effective on February 28, 1996.
    (b) (reserved)

[FR Doc. 96-1545 Filed 1-26-96; 8:45 am]
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