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Clean Air Act Final Interim Approval of Operating Permits Program; State of South Dakota
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: March 22, 1995]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[SD-001; FRL-5176-7]
Clean Air Act Final Interim Approval of Operating Permits
Program; State of South Dakota
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
SUMMARY: The EPA is promulgating interim approval of the Operating
Permits Program submitted by the State of South Dakota for the purpose
of [[Page 15067]] 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: April 21, 1995.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the final interim 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: Laura Farris, 8ART-AP, U.S.
Environmental Protection Agency, Region 8, 999 18th Street, suite 500,
Denver, Colorado 80202, (303) 294-7539.
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 January 12, 1995 EPA published a Federal Register notice
proposing interim approval of the Operating Permits Program for the
State of South Dakota (PROGRAM). See 60 FR 2917. The EPA received
adverse comments on this proposed interim approval, which are
summarized and addressed below. In this rulemaking EPA is taking final
action to promulgate interim approval of the South Dakota PROGRAM.
II. Final Action and Implications
A. Analysis of State Submission
Robert E. Roberts, Secretary of the Department of Environment and
Natural Resources, as designee of the Governor of South Dakota,
submitted the State of South Dakota Title V Operating Permit Program
(PROGRAM) to EPA on November 12, 1993. Amendments to the PROGRAM
requested by EPA were received on January 11, 1994 and December 15,
1994. The South Dakota PROGRAM, including the operating permit
regulations (Administrative Rules of South Dakota (ARSD), Article
74:36, Air Pollution Control Program), substantially meets the
requirements of 40 CFR 70.2 and 70.3 with respect to applicability; 40
CFR 70.4, 70.5, and 70.6 with respect to permit content including
operational flexibility; 40 CFR 70.5 with respect to complete
application forms and criteria which define insignificant activities;
40 CFR 70.7 with respect to public participation and minor permit
modifications; and 40 CFR 70.11 with respect to requirements for
enforcement authority.
Comments noting deficiencies in the South Dakota PROGRAM were sent
to the State in a letter dated July 8, 1994. The deficiencies were
segregated into those that require corrective action prior to interim
PROGRAM approval, and those that require corrective action prior to
full PROGRAM approval. In a letter dated August 18, 1994, the State
committed to complete the regulatory process to correct both interim
and full PROGRAM approval deficiencies related to its PROGRAM
regulations, and submit these changes to EPA by approximately December
15, 1994. EPA responded in a letter dated October 3, 1994 that they
would review all of the State's corrective actions. However, these
corrective actions would be considered a material change to the PROGRAM
and the date for final interim approval would be extended. The State
adopted the regulatory changes on November 17, 1994, which EPA has
reviewed and has determined to be adequate to allow for interim
approval. One remaining issue noted in EPA's July 8, 1994 letter that
requires corrective action prior to full PROGRAM approval is discussed
below in section C Final Action.
B. Response to Comments
The comments received on the January 12, 1995 Federal Register
notice proposing interim approval of the South Dakota PROGRAM, and
EPA's response to those comments, are as follows:
Comment #1: Two commenters objected to EPA's proposed approval of
South Dakota's preconstruction permitting program for purpose of
implementing section 112(g) of the Act during the transition period
between PROGRAM approval and adoption of a State rule implementing
EPA's section 112(g) regulations. The commenters argued that there is
no legal basis for delegating to South Dakota the section 112(g)
program until EPA has promulgated a section 112(g) regulation and the
State has a section 112(g) program in place. In addition, the
commenters argued that the South Dakota PROGRAM fails to address
critical threshold questions of when an emission increase is greater
than de minimis and when, if it is, it has been offset satisfactorily.
EPA Response: In its proposed approval of South Dakota's PROGRAM,
EPA also proposed to approve South Dakota's preconstruction permitting
program for the purpose of implementing section 112(g) of the Act
during the transition period before a Federal rule had been promulgated
implementing section 112(g). This proposal was based in part on an
interpretation of the Act that would require sources to comply with
section 112(g) beginning on the date of approval of the title V
program, regardless of whether EPA had completed its section 112(g)
rulemaking. The EPA has since revised this interpretation of the Act.
See 60 FR 8333 (dated February 14, 1995). This revised interpretation
postpones the effective date of section 112(g) until after EPA has
promulgated a rule addressing that provision. Questions regarding the
threshold for determining when an emission increase is greater than de
minimis and when it has been offset satisfactorily will be addressed in
the final section 112(g) rule. The 112(g) interpretive notice explains
that EPA is still considering whether the effective date of section
112(g) should be delayed beyond the date of promulgation of the Federal
rule so as to allow States time to adopt rules implementing the Federal
rule, and that EPA will provide for any such additional delay in the
final section 112(g) rulemaking. Unless and until EPA provides for such
an additional postponement of section 112(g), South Dakota must be able
to implement section 112(g) during the period between promulgation of
the Federal section 112(g) rule and adoption of implementing State
regulations. EPA believes that South Dakota can utilize its
preconstruction review program to serve as a procedural vehicle for
implementing section 112(g) and making these requirements Federally
enforceable between promulgation of the Federal section 112(g) rule and
adoption of implementing State regulations. The EPA approval of South
Dakota's preconstruction review program clarifies that it may be used
for this purpose during any transition period to meet the requirements
of [[Page 15068]] section 112(g). South Dakota's preconstruction
permitting program allows permit requirements to be established for all
regulated air pollutants (which is defined at ASRD 70:36:01:15 and
includes all of the hazardous air pollutants (HAPs) listed in section
112(b) of the Act).
Comment #2: Two commenters stated that they did not have a problem
with the way ``prompt'' is defined for deviation reporting in the South
Dakota PROGRAM but added that they did have a problem with the way the
definition has been handled in other interim approval notices.
EPA Response: The South Dakota PROGRAM allows the State to define
``prompt'' for deviation reporting in each individual permit. Since the
commenters did not have a problem with the way ``prompt'' reporting of
deviations is handled in South Dakota, EPA will not respond to that
comment. In addition, it would be inappropriate in this notice to
comment on how the definition of ``prompt'' was handled in notices for
other states' part 70 approvals.
C. Final Action
The EPA is promulgating interim approval of the Operating Permits
Program submitted by the State of South Dakota on November 12, 1993.
The State must complete the following corrective action to receive full
PROGRAM approval: 1) The State must adopt legislation consistent with
40 CFR 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 violations of operating permit requirements, including
making a false statement and tampering with a monitoring device.
Refer to the technical support document accompanying this
rulemaking for a detailed explanation of this PROGRAM deficiency and
the required corrective action.
The scope of South Dakota's final interim PROGRAM approval 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:
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 part 70
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 interim 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.
This interim PROGRAM approval, which may not be renewed, extends
until April 22, 1997. During this interim approval period, the State of
South Dakota is protected from sanctions, and EPA is not obligated to
promulgate, administer and enforce a Federal operating permits program
in the State of South Dakota. Permits issued under a program with
interim approval have full standing with respect to part 70, and the
one year time period for submittal of permit applications by subject
sources begins upon the effective date of this interim approval, as
does the three year time period for processing the initial permit
applications.
If the State of South Dakota fails to submit a complete corrective
PROGRAM for full approval by October 22, 1996, EPA will start an 18-
month clock for mandatory sanctions. If the State of South Dakota then
fails to submit a corrective PROGRAM that EPA finds complete before the
expiration of that 18-month period, EPA will be required to apply one
of the sanctions in section 179(b) of the Act, which will remain in
effect until EPA determines that the State of South Dakota has
corrected the deficiency by submitting a complete corrective PROGRAM.
Moreover, if the Administrator finds a lack of good faith on the part
of the State of South Dakota, both sanctions under section 179(b) will
apply after the expiration of the 18-month period until the
Administrator determines that the State of South Dakota has come into
compliance. In any case, if, six months after application of the first
sanction, the State of South Dakota still has not submitted a
corrective PROGRAM that EPA has found complete, a second sanction will
be required.
If EPA disapproves the State of South Dakota's complete corrective
PROGRAM, EPA will be required to apply one of the section 179(b)
sanctions on the date 18 months after the effective date of the
disapproval, unless prior to that date the State of South Dakota has
submitted a revised PROGRAM and EPA has determined that it corrected
the deficiencies that prompted the disapproval. Moreover, if the
Administrator finds a lack of good faith on the part of the State of
South Dakota, both sanctions under section 179(b) shall apply after the
expiration of the 18-month period until the Administrator determines
that the State of South Dakota has come into compliance. In all cases,
if, six months after EPA applies the first sanction, the State of South
Dakota has not submitted a revised PROGRAM that EPA has determined
corrects the deficiencies, a second sanction is required.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if the
State of South Dakota has not timely submitted a complete corrective
PROGRAM or EPA has disapproved its submitted corrective PROGRAM.
Moreover, if EPA has not granted full approval to the South Dakota
PROGRAM by the expiration of this interim approval and that expiration
occurs after November 15, 1995, EPA must promulgate, administer and
enforce a Federal permits program for the State of South Dakota upon
interim approval expiration.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards as promulgated by EPA as they apply to part 70
sources. 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
Therefore, the EPA is promulgating approval under section 112(l)(5)
and 40 CFR 63.91 of the State's PROGRAM for receiving delegation of
section 112 standards that are unchanged from Federal standards as
promulgated. This program for delegations only applies to sources
covered by the part 70 program.
EPA is also finalizing its approval of South Dakota's combined
preconstruction/operating permit program found in section 74:36:05 of
the State's regulations under the authority [[Page 15069]] of title V
and part 70 solely for the purpose of providing a mechanism to
implement section 112(g) during any transition period between EPA's
promulgation of a section 112(g) rule and adoption by the State of
rules to implement section 112(g). However, since this approval is for
the single purpose of providing a mechanism to implement section 112(g)
during any transition period, the approval itself will be without
effect if EPA decides in the final section 112(g) rule that sources are
not subject to the requirements of the rule until State regulations are
adopted. The EPA is limiting the duration of this approval to 12 months
following promulgation by EPA of the final section 112(g) rule.
III. Administrative Requirements
A. Docket
Copies of the State's submittal and other information relied upon
for the final interim 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 interim 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.
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: March 14, 1995.
William P. Yellowtail,
Regional Administrator.
Part 70, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 70--[AMENDED]
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 Regulation: submitted on November 12,
1993; effective on April 21, 1995; interim approval expires April
22, 1997.
(b) Reserved.
[FR Doc. 95-7064 Filed 3-21-95; 8:45 am]
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