[Federal Register Volume 63, Number 201 (Monday, October 19, 1998)]
[Rules and Regulations]
[Pages 55804-55807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27838]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[SD-001-0002a; FRL-6175-4]
Clean Air Act Approval and Promulgation of State Implementation
Plan for South Dakota; Revisions to the Air Pollution Control Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving certain State implementation plan (SIP)
revisions submitted by the designee of the Governor of South Dakota on
May 2, 1997. The May 2, 1997 submittal included revisions to the
Administrative Rules of South Dakota (ARSD) pertaining to the State's
regulatory definitions, minor source operating permit regulations, open
burning rules, stack testing rules, and new source performance
standards (NSPS). This document pertains to the entire State SIP
submittal with the exception of the revisions to the NSPS regulations
and the new State provision regarding pretesting of new fuels or raw
materials: EPA will act on those two regulations separately. EPA has
found the remaining rule revisions to be consistent with the Clean Air
Act (Act) and corresponding Federal regulations. Therefore, pursuant to
section 110 of the Act, EPA is approving the SIP revisions discussed
above.
DATES: This direct final rule is effective on December 18, 1998 without
further notice, unless EPA receives adverse comment by November 18,
1998. If adverse comment is received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: Written comments may be mailed to Richard R. Long, 8P-AR, at
the EPA Region VIII Office listed. Copies of the documents relative to
this action are available for inspection during normal business hours
at the Air and Radiation Program, Environmental Protection Agency,
Region VIII, Mailcode 8P-AR, 999 18th Street, Suite 500, Denver,
Colorado 80202-2466; and the Air and Radiation Docket and Information
Center, Environmental Protection Agency, 401 M Street, SW, Washington,
D.C. 20460. Copies of the State documents relevant to this action are
available for public inspection at the Air Quality Program, Department
of Environment and Natural Resources, Joe Foss Building, 523 East
Capitol, Pierre, South Dakota 57501.
FOR FURTHER INFORMATION CONTACT: Vicki Stamper, EPA Region VIII, (303)
312-6445.
SUPPLEMENTARY INFORMATION:
I. Background
On May 2, 1997, the designee of the Governor of South Dakota
submitted, among other things, revisions to the SIP. Specifically, the
State submitted revisions to the following chapters in the ARSD:
74:36:01 Definitions, 74:36:04 Operating Permits for Minor Sources,
74:36:06 Regulated Air Pollutant Emissions, 74:36:07 New Source
Performance Standards, 74:36:11 Stack Performance Testing, and 74:36:15
Open Burning. This document evaluates the State's submittal for
conformance with the Act and corresponding Federal regulations.
However, EPA is not, at this time, acting on the revisions to the NSPS
regulations in ARSD 74:36:07 or the new provision regarding pretesting
of new fuels or raw materials in ARSD 74:36:11:04. EPA will be acting
on these two regulations in a separate action.
The State's May 2, 1997 submittal also included the State's section
111(d) plan for existing municipal solid waste (MSW) landfills and
minor revisions to its title V operating permit program, which will
also be acted on separately.
II. This Action
A. Analysis of State Submissions
1. Procedural Background
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing. Section 110(l) of the Act similarly provides that each
revision to an implementation plan submitted by a State under the Act
must be adopted by such State after reasonable notice and public
hearing.
The EPA also must determine whether a submittal is complete and
therefore warrants further EPA review and action (see section 110(k)(1)
and 57 FR 13565, April 16, 1992). The EPA's completeness criteria for
SIP submittals are set out at 40 CFR part 51, appendix V. The EPA
attempts to make completeness determinations within 60 days of
receiving a submission. However, a submittal is deemed complete by
operation of law under section 110(k)(1)(B) if a completeness
determination is not made by EPA within six months after receipt of the
submission.
The State of South Dakota held a public hearing on November 20,
1996 on the revisions to the ARSD, at which time the rule revisions
were adopted by the State. The revised rules became effective on
December 29, 1996. These rule revisions were formally submitted to EPA
for approval on May 2, 1997. EPA did not issue a completeness or an
incompleteness finding for this revision to the SIP. Thus, pursuant to
section 110(k)(1)(B), the submittal was deemed complete by operation of
law on November 12, 1997.
2. Evaluation of State's Submittal
The following summarizes the State's SIP revisions made to the ARSD
and EPA's review of those revisions for approvability:
a. ARSD 74:36:01 Definitions. In ARSD 74:36:01:01(79), the State
updated its definition of ``VOCs'' to reflect changes made to the
Federal definition of VOCs in 40 CFR 51.100(s) on October 8, 1996 (61
FR 52850). However, EPA has revised its definition of VOCs twice since
October 8, 1996. Specifically, on August 25, 1997, EPA added sixteen
compounds to the list of negligibly reactive VOCs in 40 CFR
51.100(s)(1) (see 62 FR 44900). In addition, on April 9, 1998, EPA
added an additional compound to the list of
[[Page 55805]]
negligibly reactive VOCs in 40 CFR 51.100(s)(1) (see 63 FR 17333). EPA
has informed the State of these revisions and has requested that future
SIP revisions reflect the most recent Federal VOC definition. The
State's definition of VOCs, by not excluding the above listed compounds
from the definition of VOC, is considered to be more stringent than
EPA's definition, which is acceptable.
In ARSD 74:36:01:18 and 74:36:01:19, the State adopted definitions
of ``MSW landfill'' and ``existing MSW landfill,'' respectively. EPA
has reviewed those definitions and found the State's definitions to be
consistent with the corresponding Federal definitions in 40 CFR part
60, subpart Cc.
Thus, EPA finds the State's revision to ARSD 74:36:01:01 to be
consistent with the corresponding Federal regulations and, therefore,
approvable.
b. ARSD 74:36:04 Operating Permits for Minor Sources. In ARSD
74:36:04:03, the State revised its list of exemptions from the minor
source operating permit requirements to: (1) clarify that a source is
not exempt from the minor source operating permit requirements if the
source has requested Federally enforceable permit conditions to prevent
that source from needing a title V operating permit or a prevention of
significant deterioration (PSD) permit; (2) clarify that sources exempt
from the minor source operating permit requirements are still required
to meet the visible emissions requirements in ARSD 74:36:12:01; and (3)
revise the exemption for emergency electrical generators to clarify
that the exemption applies to emergency electrical generators fueled by
all petroleum products (the State's rule previously only applied to
diesel-fueled emergency electrical generators). EPA believes the first
two clarifications mentioned above strengthen the existing regulation
and are necessary clarifications. In addition, EPA sees no
approvability issues with the revised exemption for emergency
electrical generators in ARSD 74:36:04:03(7). If an emergency
electrical generator is considered to be a major source based on its
potential to emit, South Dakota's regulations would require the source
either to obtain a construction/title V operating permit under the
State's combined construction/title V operating permit regulations in
ARSD 74:36:05 or to obtain permit conditions to prevent the source from
needing a title V operating permit as discussed in ARSD 74:36:04:03. In
addition, the State's new provision in ARSD 74:36:04:03 discussed
above, which clarifies that exempted sources are still required to meet
the visible emissions standard (i.e., 20% opacity limit), ensures that
the emergency electrical generators will be operated adequately to
minimize emissions.
The State also repealed its provisions for general minor source
operating permits in ARSD 74:36:04:25-26 because of changes in State
legislation that provide the State with broad authority to issue
general permits under the existing minor source operating permit
requirements as well as the title V operating permit program. In
addition, the State repealed ARSD 74:36:04:30 regarding the requirement
to perform a stack performance test, as this was already required in
ARSD 74:36:06:06. These revisions are considered minor in nature and
are consistent with the corresponding Federal requirements.
Therefore, because the revisions to ARSD 74:36:04 are consistent
with the Act and corresponding regulations and guidance, EPA finds the
revisions to be approvable.
c. ARSD 74:36:06 Regulated Air Pollutant Emissions and Repeal of
ARSD 74:36:15. The State repealed the open burning provisions of ARSD
74:36:15 and transferred ARSD 74:36:15:01, which contained the list of
materials that cannot be open-burned because of the excessive and
potentially dangerous pollutants that can be generated from these
materials, to ARSD 74:36:06:07. The State also added a statement to
ARSD 74:36:06:07 clarifying that all open burning needed to be
conducted in accordance with local and State ordinances, laws, and
rules. The intent of these revisions was to consolidate similar rules
into ARSD 74:36:06, as well as to clarify that other State agencies
(i.e., the waste management program) and local governments are the
primary authority for approving open burning. Because the State
retained the list of items which could not be disposed of by open
burning, EPA believes the transfer of open burning approval authority
from the State Air Quality Program to other State agencies and local
governments is acceptable and will not result in any less stringent
application of the open burning requirements. Consequently, EPA is
approving the revisions to ARSD 74:36:06:07 and 74:36:06:15.
d. ARSD 74:36:11 Stack Performance Testing. The State revised the
title of this chapter and revised ARSD 74:36:11:01 to incorporate
Federal test methods for hazardous air pollutants. The State also made
minor wording and clarifying changes to ARSD 74:36:11:01-03. EPA has
reviewed the revisions to ARSD 74:36:11:01-03 and had found they are
consistent with the Act and corresponding Federal regulations.
III. Final Action
EPA is approving South Dakota's SIP revisions, as submitted by the
designee of the Governor with a letter dated May 2, 1997, with the
exception of the revisions to ARSD 74:36:07 (NSPS) and ARSD 74:36:11:04
(regarding pretesting of new fuels or raw materials). EPA will be
acting on ARSD 74:36:07 and 74:36:11:04 separately from this action.
The State's SIP submittal requested that EPA replace the previous
version of the ARSD approved into the SIP with the following chapters
of the ARSD as in effect on December 29, 1996: 74:36:01 through
74:36:03, 74:36:04 (with the exception of section 74:36:04:03.01),
74:36:06, 74:36:07, 74:36:10-13, and 74:36:17. In this approval, EPA is
specifically replacing all of the existing State regulations previously
approved into the SIP (except for the NSPS rules in ARSD 74:36:07) with
the following State regulations as in effect on December 29, 1996: ARSD
74:36:01-03, 74:36:04 (with the exception of section 74:36:04:03.01),
74:36:06, 74:36:10, 74:36:11 (with the exception of ARSD 74:36:11:04),
74:36:12, and 74:36:13. ARSD 74:36:07 (NSPS rules), as in effect on
January 5, 1995 and as approved by EPA at 40 CFR 52.2170(c)(16)(i)(A),
will remain part of the SIP until EPA acts on the revised ARSD 74:36:07
which will be done in a separate action. [Note that EPA is not
incorporating ARSD 74:36:17, which includes the Rapid City street
sanding and deicing provisions, into the approved SIP at this time
because EPA has not yet acted on the original January 22, 1996
submittal of ARSD 74:36:17. That chapter will be acted on separately in
the near future.]
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to a SIP shall be
considered separately in light of specific technical, economic, and
environmental factors and in relation to relevant statutory and
regulatory requirements.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
adverse comments be filed. This rule will be effective December 18,
1998 without further notice unless the Agency receives adverse comments
by November 18, 1998.
[[Page 55806]]
If EPA receives such comments, then EPA will publish a timely
withdrawal of the final rule informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. EPA will not
institute a second comment period on this rule. Any parties interested
in commenting on this rule should do so at this time. If no such
comments are received, the public is advised that this rule will be
effective on December 18, 1998 and no further action will be taken on
the proposed rule.
IV. Administrative Requirements
A. Executive Order 12866 and 13045
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review,'' review.
The final rule is not subject to Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks,'' because it is not an ``economically significant'' action under
Executive Order 12866.
B. Executive Order 12875
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local,
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the OMB a
description of the extent of EPA's prior consultation with
representatives of affected state, local, and tribal governments, the
nature of their concerns, copies of written communications from the
governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
C. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments. If the mandate is
unfunded, EPA must provide to the OMB, in a separately identified
section of the preamble to the rule, a description of the extent of
EPA's prior consultation with representatives of affected tribal
governments, a summary of the nature of their concerns, and a statement
supporting the need to issue the regulation. In addition,
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
impose any new requirements, I certify that it does not have a
significant impact on a substantial number of small entities. Moreover,
due to the nature of the Federal-State relationship under the Clean Air
Act, preparation of a flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The Clean Air
Act forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. EPA, 427 U.S. 246, 256-66 (1976); 42 U.S.C.
7410(a)(2).
E. 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 the approval action promulgated 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.
F. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that, before a rule may take effect, the
agency promulgating the rule must submit a rule report, which includes
a copy of the rule, to each House of Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. section 804(2).
G. Audit Privilege and Immunity Law
Nothing in this action should be construed as making any
determination or expressing any position regarding South Dakota's audit
privilege and penalty immunity law (sections 1-40-33 through 1-40-37 of
Chapter 1-40 of the South Dakota Codified Laws, effective July 1, 1996)
or its impact upon any approved provision in the SIP,
[[Page 55807]]
including the revisions at issue here. The action taken herein does not
express or imply any viewpoint on the question of whether there are
legal deficiencies in this or any other Clean Air Act program resulting
from the effect of South Dakota's audit privilege and immunity law. A
State audit privilege and immunity law can affect only State
enforcement and cannot have any impact on Federal enforcement
authorities. EPA may at any time invoke its authority under the Clean
Air Act, including, for example, sections 113, 114, 167, 205, 211 or
213, to enforce the requirements or prohibitions of the SIP,
independently of any State enforcement effort. In addition, citizen
enforcement under section 304 of the Clean Air Act is likewise
unaffected by a State audit privilege or immunity law.
H. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 18, 1998. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides, Volatile organic
compounds.
Dated: September 29, 1998.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.
Part 52, Chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart QQ--South Dakota
2. Section 52.2170 is amended by adding paragraph (c)(17) to read
as follows:
Sec. 52.2170 Identification of plan.
* * * * *
(c) * * *
(17) On May 2, 1997, the designee of the Governor of South Dakota
submitted revisions to the plan. The revisions pertain to revised
regulations for definitions, minor source operating permits, open
burning, and performance testing. The State's SIP submittal requested
that EPA replace the previous version of the ARSD approved into the SIP
with the following chapters of the ARSD as in effect on December 29,
1996: 74:36:01 through 74:36:03, 74:36:04 (with the exception of
section 74:36:04:03.01), 74:36:06, 74:36:07, 74:36:10-13, and 74:36:17.
EPA is replacing all of the previously approved State regulations,
except the NSPS rules in ARSD 74:36:07, with those regulations listed
in paragraph (c)(17)(i)(A). ARSD 74:36:07, as in effect on January 5,
1995 and as approved by EPA at 40 CFR 52.2170(c)(16)(i)(A), will remain
part of the SIP. [Note that EPA is not incorporating the revised ARSD
74:36:07, new ARSD 74:36:11:04, or new ARSD 74:36:17 in this action, as
these chapters will be acted on separately by EPA.]
(i) Incorporation by reference.
(A) Revisions to the Administrative Rules of South Dakota, Air
Pollution Control Program, Chapters 74:36:01-03; 74:36:04 (except
section 74:36:04:03.1); 74:36:06; 74:36:10, 74:36:11 (with the
exception of ARSD 74:36:11:04), 74:36:12, and 74:36:13, effective
December 29, 1996.
[FR Doc. 98-27838 Filed 10-16-98; 8:45 am]
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