[Federal Register Volume 64, Number 182 (Tuesday, September 21, 1999)]
[Proposed Rules]
[Pages 51088-51091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24508]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 60
[SD-001-0005 & SD-001-0006; FRL-6441-5]
Clean Air Act Approval and Promulgation of State Implementation
Plan; South Dakota; New Source Performance Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to approve revisions to the South Dakota State
Implementation Plan (SIP) which update the State's incorporation by
reference of the Federal New Source Performance Standards (NSPS). The
SIP revisions were submitted by the designee of the Governor of South
Dakota on May 2, 1997 and on May 6, 1999. The State adopted the Federal
NSPS by reference in subchapter
[[Page 51089]]
74:36:07 of the Administrative Rules of South Dakota (ARSD). The State
also repealed a rule that required stack tests for asphalt batch
plants, other than the initial stack test required by the NSPS, to be
performed if certain conditions existed. EPA proposes to approve the
revisions to the ARSD 74:36:07 because the revisions are consistent
with Federal regulations.
This proposed approval action does not extend to sources in Indian
country. In this document, EPA proposes to clarify the interpretation
of Indian country in South Dakota.
DATES: Written comments must be received on or before October 21, 1999.
ADDRESSES: Written comments may be mailed to Richard R. Long, Director,
Air and Radiation Program, Mailcode 8P-AR, Environmental Protection
Agency (EPA), Region VIII, 999 18th Street, Suite 500, Denver,
Colorado, 80202. 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, 999
18th Street, Suite 500, Denver, Colorado 80202-2466. 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. What Action is EPA Proposing Today?
EPA proposes to approve two revisions to the South Dakota's NSPS
regulations in subchapter 74:36:07 of the ARSD, except for those
sources located in Indian country. These revisions were submitted for
approval as part of the SIP on May 2, 1997 and on May 6, 1999.
The State's May 2, 1997 and May 6, 1999 SIP submittals included
revisions to other subchapters of the ARSD. We acted on most of those
revisions submitted on May 2, 1997 in an October 19, 1998 rulemaking
(see 63 FR 55804-55807). In this document, we only propose to act on
the revisions to ARSD 74:36:07. We will act on the revisions to the
other subchapters of the ARSD included in these two submittals in
separate rulemakings.
II. What Changes Were Made to South Dakota's NSPS regulation?
In South Dakota's May 2, 1995 SIP submittal, the State adopted four
new NSPS categories in subchapter 74:36:07 of the ARSD. Specifically,
the State incorporated by reference the following subparts of the
Federal NSPS in 40 CFR part 60 as in effect on July 1, 1995 unless
otherwise stated: subpart Eb (pertaining to large municipal waste
combustors) as promulgated by EPA on December 19, 1995 (59 FR 65419-
65436); 40 CFR part 60, subpart RRR (pertaining to the synthetic
organic chemical manufacturing industry reactor processes); 40 CFR part
60, subpart UUU (pertaining to calciners and dryers in mineral
industries); and 40 CFR part 60, subpart WWW (pertaining to municipal
solid waste (MSW) landfills) as promulgated by EPA on March 12, 1996
(61 FR 9918-9929). The State also updated its existing NSPS to
incorporate by reference the July 1, 1995 version of the Federal NSPS.
In South Dakota's May 6, 1999 SIP submittal, the State adopted one
new NSPS subpart in subchapter 74:36:07 of the ARSD: 40 CFR part 60,
subpart Ec (pertaining to hospital/medical/infectious waste
incinerators) as promulgated by EPA on September 15, 1997 (62 FR 48383-
48390). The State also updated its incorporated by reference of 40 CFR
part 60, subpart Eb (pertaining to municipal waste combustors) to
reflect the version in effect as of July 1, 1997 and of 40 CFR part 60,
subpart WWW (pertaining to MSW landfills) to reflect the version in
effect as of July 1, 1997 as revised on June 16, 1998 (63 FR 32750-
32753). Last, the State repealed its additional provisions for asphalt
batch plants in section 74:36:07:11 of the ARSD. This section
previously required stack tests at asphalt batch plants, aside from the
initial stack test required by the NSPS, if certain conditions existed.
The State repealed this section because it was repetitive with recent
changes to the ARSD. The State still has the ability to require stack
performance tests at any time to determine compliance with emission
limits.
III. Why is EPA Proposing To Approve the South Dakota Revisions to
the NSPS?
EPA proposes to approve these revisions to South Dakota's NSPS in
ARSD 74:36:07 because the revisions ensure that the State's NSPS are up
to date with the Federal NSPS.
We also believe that the State met EPA's completeness criteria,
including the public participation requirements of sections 110(a)(2)
and 110(l) of the Clean Air Act, for the adoption of these revisions to
ARSD 74:36:07. Specifically, the State of South Dakota held a public
hearing on November 20, 1996, after providing notice to the public, for
the revisions to the ARSD submitted to EPA on May 2, 1997. For the SIP
revisions submitted on May 6, 1999, the State held a public hearing on
February 18, 1999 after providing notice to the public.
IV. How Does This Proposed Action Affect Sources in Indian Country
as Interpreted in South Dakota?
EPA has been consulting with the affected Tribes and has had
discussions with the State regarding the extent of Indian country in
South Dakota. Based on these discussions, we propose the following
language. Recognizing that the affected parties may have differing
opinions, we invite comment from the Tribes, the State and others.
EPA's decision to approve these revisions to the South Dakota SIP
regarding NSPS does not include any land that is, or becomes after the
date of this authorization, ``Indian country,'' as defined in 18 U.S.C.
1151, including:
A. Land within formal Indian reservations located within or
abutting the State of South Dakota, including the:
1. Cheyenne River Indian Reservation,
2. Crow Creek Indian Reservation,
3. Flandreau Indian Reservation,
4. Lower Brule Indian Reservation,
5. Pine Ridge Indian Reservation,
6. Rosebud Indian Reservation,
7. Standing Rock Indian Reservation, and
8. Yankton Indian Reservation.
B. Any land held in trust by the United States for an Indian tribe,
and
C. Any other land, whether on or off a reservation, that qualifies
as Indian country.
Moreover, in the context of these principles, a more detailed
discussion for three reservations follows.
Rosebud Sioux Reservation
In a September 16, 1996, Federal Register notice regarding EPA's
final determination of adequacy of South Dakota's municipal solid waste
permit program over non-Indian lands, EPA noted that the U.S. Supreme
Court in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977), determined
that three Congressional acts diminished the Rosebud Sioux Reservation
and that it no longer includes Gregory, Tripp, Lyman and Mellette
Counties. See 61 FR 48683. Accordingly, EPA proposes to approve these
revisions to the South Dakota SIP regarding NSPS for all land in
Gregory, Tripp, Lyman and Mellette Counties that was formerly within
the 1889 Rosebud Sioux Reservation boundaries and does not otherwise
qualify as Indian country under 18 U.S.C. 1151. This proposed approval
[[Page 51090]]
does not include any trust or other land in Gregory, Tripp, Lyman and
Mellette Counties that qualifies as Indian country.
Lake Traverse (Sisseton-Wahpeton) Reservation
In the September 16, 1996, Federal Register document, EPA noted
that the U.S. Supreme Court in DeCoteau v. District County Court, 420
U.S. 425 (1975), determined that an Act of Congress disestablished the
Lake Traverse (Sisseton-Wahpeton) Reservation. Therefore, EPA proposes
to approve these revisions to the South Dakota SIP regarding NSPS for
all land that was formerly within the 1867 Lake Traverse Reservation
boundaries and does not otherwise qualify as Indian country under 18
U.S.C. 1151. This proposed approval does not include any trust or other
land within the former Lake Traverse Reservation that qualifies as
Indian country.
Yankton Sioux Reservation
The U.S. Supreme Court's ruling in South Dakota v. Yankton Sioux
Tribe, 522 U.S. 329 (1998), found that the Yankton Sioux Reservation
has been diminished by the unallotted, ``ceded'' lands, that is, those
lands that were not allotted to Tribal members and that were sold by
the Yankton Sioux Tribe to the United States pursuant to an Agreement
executed in 1892 and ratified by the United States Congress in 1894.
Accordingly, EPA proposes to approve these revisions to the South
Dakota SIP regarding NSPS for unallotted, ceded lands that were ceded
as a result of the Act of 1894, 28 Stat. 286 and do not otherwise
qualify as Indian country under 18 U.S.C. 1151. This proposed approval
does not include any trust or other land within the original boundaries
of the Yankton Sioux Reservation that qualifies as Indian country under
18 U.S.C. 1151. EPA acknowledges that there may be further
interpretation of land status by the final federal court decision in
Yankton Sioux Tribe v. Gaffey, Nos. 98-3893, 3894, 3986, 3900. If
Indian country status changes as a result of Gaffey, EPA will act to
modify this SIP approval as appropriate.
V. EPA Requests Public Comment on this Proposal
For the reasons discussed above, EPA is proposing to approve South
Dakota's May 2, 1997 and May 6, 1999 SIP revisions regarding the
State's NSPS regulations in subchapter 74:36:07 of the ARSD, except for
those sources located in Indian country. EPA also proposes to clarify
the interpretation of Indian country in South Dakota. We solicit public
comments on the issues discussed in this document or on other relevant
matters. These comments will be considered before taking final action.
Interested parties may participate in the Federal rulemaking procedure
by submitting written comments to the EPA Regional office listed in the
Addresses section of this document.
VI. What Are the Administrative Requirements Associated With This
Action?
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Orders on Federalism
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 Office
of Management and Budget 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 proposed rule would
not create a mandate on state, local, or tribal governments. The
proposed rule would not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this proposed rule.
On August 4, 1999, President Clinton issued a new executive order
on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999)),
which will take effect on November 2, 1999. In the interim, the current
Executive Order 12612, (52 FR 41685 (October 30, 1987)), on federalism
still applies. This proposed rule will not have a substantial direct
effect on States, on the relationship between the national government
and the States, or on the distribution of power and responsibilities
among the various levels of government, as specified in Executive Order
12612. The proposed rule would affect only one State, and would not
alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act.
C. Executive Order 13045
Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to
any rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because
it does not involve decisions intended to mitigate environmental health
or safety risks.
D. 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 Office of Management and Budget, 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, Executive Order 13084 requires EPA to develop an
effective process permitting elected officials and other
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
proposed rule would not significantly or uniquely affect the
communities of Indian tribal
[[Page 51091]]
governments. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this proposed rule.
E. 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 proposed rule would not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 of the Clean Air Act do not create any new requirements but
simply approve requirements that the State is already imposing.
Therefore, because the proposed Federal SIP approval would not create
any new requirements, I certify that this action will not have a
significant economic 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 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, 255-66 (1976);
42 U.S.C. 7410(a)(2).
F. 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
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 proposed would 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 proposes to
approve pre-existing requirements under State or local law, and imposes
no new requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, would result from this
proposed action.
G. National Technology Transfer and Advancement Act
Section 12 of the National Technology and Advancement Act (NTTAA)
of 1995 requires Federal agencies to evaluate existing technical
standards when developing a new regulation. To comply with NTTAA, EPA
must consider and use ``voluntary consensus standards'' (VCS) if
available and applicable when developing programs and policies unless
doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes VCS are inapplicable to this proposed action.
Today's proposed action would not require the public to perform
activities conducive to the use of VCS.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides.
40 CFR Part 60
Environmental protection, Air pollution control, Aluminum, Ammonium
sulfate plants, Beverages, Carbon monoxide, Cement industry, Coal,
Copper, Drycleaners, Electric power plants, Fertilizers, Fluoride,
Gasoline, Glass and glass products, Grains, Graphic arts industry,
Household appliances, Insulation, Intergovernmental relations, Iron,
Lead, Lime, Metallic and nonmetallic mineral processing plants, Metals,
Motor vehicles, Natural gas, Nitric acid plants, Nitrogen dioxide,
Paper and paper products industry, Particulate matter, Paving and
roofing materials, Petroleum, Phosphate, Plastics materials and
synthetics, Reporting and recordkeeping requirements, Sewage disposal,
Steel, Sulfur oxides, Tires, Urethane, Vinyl, Waste treatment and
disposal, Wool, Zinc.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 13, 1999.
Jack W. McGraw,
Acting Regional Administrator, Region VIII.
[FR Doc. 99-24508 Filed 9-20-99; 8:45 am]
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