81 FR 52388 - Approval and Promulgation of Air Quality Implementation Plans; South Dakota; Revisions to the Permitting Rules

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 81, Issue 152 (August 8, 2016)

The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of South Dakota on October 23, 2015 and July 29, 2013 related to South Dakota's Air Pollution Control Program. The October 23, 2015 submittal revises certain definitions and dates of incorporation by reference and contains new, amended and renumbered rules. In this rulemaking, we are taking final action on all portions of the October 23, 2015 submittal, except for those portions of the submittal which do not belong in the SIP. This action is being taken under section 110 of the Clean Air Act (CAA).

[Federal Register Volume 81, Number 152 (Monday, August 8, 2016)]
[Proposed Rules]
[Pages 52388-52393]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-18759]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2016-0424; FRL-9950-38-Region 8]


Approval and Promulgation of Air Quality Implementation Plans; 
South Dakota; Revisions to the Permitting Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve State Implementation Plan (SIP) revisions submitted by the 
State of South Dakota on October 23, 2015 and July 29, 2013 related to 
South Dakota's Air Pollution Control Program. The October 23, 2015 
submittal revises certain definitions and dates of incorporation by 
reference and contains new, amended and renumbered rules. In this 
rulemaking, we are taking final action on all portions of the October 
23, 2015 submittal, except for those

[[Page 52389]]

portions of the submittal which do not belong in the SIP. This action 
is being taken under section 110 of the Clean Air Act (CAA).

DATES: Written comments must be received on or before September 7, 
2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2016-0424, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.,) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kevin Leone, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6227, 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

    What should I consider as I prepare my comments for the EPA?
    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to the EPA through http://www.regulations.gov or email. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI information on a disk or CD ROM that you mail to the 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:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register, date, and 
page number);
     Follow directions and organize your comments;
     Explain why you agree or disagree;
     Suggest alternatives and substitute language for your 
requested changes;
     Describe any assumptions and provide any technical 
information and/or data that you used;
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced;
     Provide specific examples to illustrate your concerns, and 
suggest alternatives;
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats; and
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

July 29, 2013 Submittal

    On July 29, 2013, the State of South Dakota submitted a SIP 
revision containing amendments 74:36:10:06 (Causing or contributing to 
a violation of any national ambient air quality standard). This 
revision added significant impact levels (SILs) for particulate matter 
less than 2.5 microns (PM2.5.) as required in the EPA's 
October 20, 2010, PM2.5 ``Increment Rule.'' However, on 
January 22, 2013, the United States Court of Appeals for the District 
of Columbia Circuit vacated the SILs for PM2.5. On December 
9, 2013, the EPA issued a final rule that removes the PM2.5 
SILs from the EPA's PSD regulations (78 FR 73698). As a result of this 
court decision and the EPA's rulemaking, in the October 23, 2015, 
submittal, South Dakota removed the SILs for PM2.5 from 
section 74:36:10:06. This action effectively supersedes the July 29, 
2013 action for 74:36:10:06.

October 23, 2015 Submittal

A. Chapter 74:36:01--Definitions
    Chapter 74:36:01 defines the terms used throughout Article 74:36--
Air Pollution Control Program. There are six definitions in Chapter 
74:36:01 that reference federal regulations. The sections in Chapter 
74:36:01 that are being updated to the version of the federal reference 
as of July 1, 2014, involve the following: 74:36:01:01(8), 
74:36:01:01(29), 74:36:01:01(67), 74:36:01:01(73), 74:36:01:05, and 
74:36:01:20. We will be acting on the revision to 74:36:01:01(73) in a 
separate rulemaking. This is addressed in more detail under section III 
of this rulemaking.
    South Dakota's October 23, 2015 submittal also added the phrase 
``insignificant increase in allowable emissions'' to the definition of 
``permit revision'' in section 74:36:01(50) and revised the definition 
of ``modification'' in section 74:36:01:10 to allow an exception for 
insignificant increases in allowable emissions. This proposed 
rulemaking also adds a new definition for ``Insignificant increases in 
allowable emissions'' in section 74:36:01:10.01. This addition to the 
definition for ``insignificant increase in allowable emissions'' is to 
account for all of the new federal standards covering small sources of 
air pollutants, to streamline the permitting actions for these small 
sources, and to be consistent with federal permitting requirements. 
This definition was derived from Table I in 40 CFR 49.153 and is 
addressed in more detail under section III of this rulemaking.
B. Chapter 74:36:02--Ambient Air Quality
    Chapter 74:36:02 established air quality goals and ambient air 
quality standards for South Dakota. The sections in Chapter 74:36:02 
that are being updated to the version of the federal reference as of 
July 1, 2014, involve the following: 74:36:02:02, 74:36:02:03, 
74:36:02:04 and 74:36:02:05.
C. Chapter 74:36:03--Air Quality Episodes
    Chapter 74:36:03 identifies the contingency plan the South Dakota 
Department of Environment and Natural Resources (DENR) will follow 
during an air pollution emergency episode. The sections in Chapter 
74:36:03 that are being updated to the version of the federal reference 
as of July 1, 2014, involve the following: 74:36:03:01 and 74:36:03:02.
D. Chapter 74:36:04--Operating Sources for Minor Sources
    Chapter 74:36:04 is South Dakota's minor source air quality 
operating permit program. The section in Chapter 74:36:04 that is being 
updated to the version of the federal reference as of July 1, 2014, 
involve the following: 74:36:04:04.
    Section 74:36:04:03 lists emission units that are exempt from 
inclusion in

[[Page 52390]]

a minor air quality operating permit. Emission units may not be 
exempted if federally enforceable limits have been included in the 
permit to avoid other permits. The revisions are being proposed to 
clarify that any unit that is subject to a federal rule in Chapter 
74:36:07--New Source Performance Standards and Chapter 74:36:08--
National Emission Standards for Hazardous Air Pollutants may not be 
exempted from inclusion in the minor air quality operating permit.
    A definition for ``insignificant increase in allowable emissions'' 
is being added to Chapter 74:36:01 to account for all of the new 
federal standards covering small sources of air pollutants, to stream 
line the permitting actions for these small sources, and to be 
consistent with the federal permitting requirements. As such, the 
revisions are proposing to add section 74:36:04:21.01 which will 
identify procedures for processing an application for activities that 
are considered an ``insignificant increase in allowable emissions.'' 
This process will allow construction projects to move forward if the 
air pollution increase meets the definition of an ``insignificant 
increase in allowable emissions.''
E. Chapter 74:36:05--Operating Sources for Part 70 Sources
    We are not taking action on revisions to this chapter. Title V 
permits are not part of the SIP.
F. Chapter 74:36:07--New Source Performance Standards
    We are not taking action on revisions to this chapter. New source 
performance standards (NSPS) are not part of the SIP.
G. Chapter 74:36:08--National Emission Standards for Hazardous Air 
Pollutants
    We are not taking action on revisions to this chapter. National 
emission standards for hazardous air pollutants (NESHAPs) are not part 
of the SIP.
H. Chapter 74:36:09--Prevention of Significant Deterioration
    Chapter 74:36:09 is South Dakota's PSD preconstruction program for 
major sources located in areas of the state that attain the federal 
national ambient air quality standards (NAAQS). The sections in Chapter 
74:36:09 that are being updated to the version of the federal reference 
as of July 1, 2014, involve the following: 74:36:09:02 and 74:36:09:03. 
This chapter also adds 74:36:09:02(7), 74:36:09:02(8) and 
74:36:09:02(9). These provisions remove 40 CFR 52.21(b)(49)(v) and 
references to 40 CFR 52.21(b)(49)(v) from the SIP.
I. Chapter 74:36:10--New Source Review
    Chapter 74:36:10 is South Dakota's New Source Review (NSR) 
preconstruction permit program for major sources in areas of the state 
that are not attaining the NAAQS. All of South Dakota is in attainment 
with the federal standards; therefore, there are no facilities that 
require a preconstruction permit under this program.
    The sections in Chapter 74:36:10 that are being updated to the 
version of the federal reference as of July 1, 2014, involve the 
following: 74:36:10:02, 74:36:10:03.01, 74:36:10:05, 74:36:10:07 and 
74:36:10:08.
    On March 30, 2011, the EPA extended the stay of the ``Fugitive 
Emissions Rule'' under the new source review program. The extension 
clarified the stay and revisions of specific paragraphs in the new 
source review program affected by the ``Fugitive Emissions Rule.'' 
Changes to 74:36:10:02 are proposed revise South Dakota's SIP to remove 
these references.
    On January 22, 2013, the United States Court of Appeals for the 
District of Columbia Circuit vacated the significant impact levels for 
PM2.5 in the new source review program. The revisions to 
74:36:10:06 reflect this court decision.
J. Chapter 74:36:11--Performance Testing
    Chapter 74:36:11 identifies the performance testing requirements 
used by permitted facilities to demonstrate compliance with permit 
limits. The sections in Chapter 74:36:11 that are being updated to the 
version of the federal reference as of July 1, 2014, involve the 
following: 74:36:11:01.
K. Chapter 74:36:12--Control of Visible Emissions
    Chapter 74:36:12 identifies visible emission limits for units that 
emit air pollution. The sections in Chapter 74:36:12 that are being 
updated to the version of the federal reference as of July 1, 2014, 
involve the following: 74:36:12:01 and 74:36:12:03.
L. Chapter 74:36:13--Continuous Emission Monitoring Systems
    Continuous Emission Monitoring Systems are part of South Dakota's 
Title V program and are not part of the SIP.
M. Chapter 74:36:16--Acid Rain Program
    The Acid Rain Program is not part of the SIP.
N. Chapter 74:36:18--Regulations for State Facilities in the Rapid City 
Area
    The sections in Chapter 74:36:18 that are being updated to the 
version of the federal reference as of July 1, 2014, involve the 
following: 74:36:18:10.
O. Chapter 74:36:20--Construction Permits for New Sources or 
Modifications
    The reference date for the federal regulation is proposed to be 
updated to the most current version of the federal reference of July 1, 
2014. This revision will update any minor inconsistency between South 
Dakota's SIP and EPA's federal regulations as of July 1, 2014. These 
proposed changes involve section 74:36:20:05.
    South Dakota's October 23, 2015, submittal adds certain pre-permit 
construction activities and also adds procedures for an ``insignificant 
increase in allowable emissions.'' These revisions are discussed in 
more detail in Section III of this rulemaking.

III. What is the EPA proposing to approve?

A. What the EPA Is Not Acting On

    1. The EPA is not acting on revisions to 74:36:05 (Operating 
Permits for Part 70 Sources), 74:36:07 (New Source Performance 
Standards) and 74:36:08 (National Emission Standards for Hazardous Air 
Pollutants) and 74:36:16 (Acid Rain) because these sections are not 
part of the SIP.
    2. The EPA will act on revisions to 74:36:01(73) (definition for 
Subject to Regulation), and 74:36:09:02(10) in a separate rulemaking. 
These revisions revise the definition of ``Subject to Regulation'' in 
the SIP. The definition of ``Subject to Regulation'' is located in 40 
CFR 51.166(a)(48)(i)-(v) and 40 CFR 52.21(b)(49)(i)-(v).
    On June 23, 2014, the U.S. Supreme Court (Utility Air Regulatory 
Group (UARG) v. EPA) held that the EPA may not treat greenhouse gases 
(GHGs) as an air pollutant for the specific purposes of determining 
whether a source is a major source and thus required to obtain a PSD or 
title V permit. On April 10, 2015, the D.C. Circuit issued a Coalition 
Amended Judgement, which reflects the UARG v. EPA Supreme Court 
Decision. The EPA issued a final rulemaking addressing the court 
decision on August 19, 2015 (80 FR 50199).
    The Coalition Amended Judgement only specifically ordered that the 
EPA regulations under review (including 40 CFR 51.166(b)(48)(v) and 
52.21(b)(49)(v)) be vacated. In the EPA's final rulemaking titled 
``Prevention of Significant Deterioration and Title V

[[Page 52391]]

Permitting for Greenhouse Gases: Removal of Certain Vacated Element,'' 
which was published on August 19, 2015 (80 FR 50199), we state:

    This final action removes from the CFR several provisions of the 
PSD and title V permitting regulations that were originally 
promulgated as part of the Tailoring Rule and that the D.C. Circuit 
specifically identified as vacated in the Coalition Amended 
Judgement. Because the D.C. Circuit specifically identified the 
Tailoring Rule Step 2 PSD permitting requirements in 40 CFR 
51.166(b)(48)(v) and 52.21(b)(49)(v) and the regulations that 
require the EPA to consider further phasing-in the GHG permitting 
requirements at lower GHG emission thresholds in 40 CFR 52.22, 70.12 
and 71.13 as vacated, the EPA is taking the ministerial action of 
removing these provisions from the CFR.

EPA further states:

    The EPA intends to further revise the PSD and title V 
regulations to fully implement the Coalition Amended Judgement in a 
separate rulemaking. This future rulemaking will include revisions 
to additional definitions in the PSD regulations.

    We are acting on 74:36:01(73) in a separate rulemaking because 
South Dakota added the sentence ``Greenhouse gases are not subject to 
regulation unless a PSD preconstruction permit is issued regulating 
greenhouse gases in accordance with chapter 74:39:09.'' This sentence 
is not in compliance with the current definition of ``Subject to 
Regulation'' in 40 CFR 51.166(b)(48) and 52.21(b)(49). As mentioned 
previously in this rulemaking, the EPA intends to publish a future 
rulemaking which will revise additional definitions in the PSD 
regulations. However, the EPA's rulemaking in 80 FR 50199 only removes 
40 CFR 51.166(b)(48)(v).
    We are acting on 74:36:09(02)(10) in a separate rulemaking because 
74:36:09(02)(10) revises the definition of 40 CFR 52.21(b)(49)(iv)(b). 
The revision is not in compliance with the current definition of 
``Subject to Regulation'' in 40 CFR 51.166(b)(48) and 
52.21(b)(49)(iv)(b). Section 52.21(b)(49)(iv)(b) was not addressed in 
80 FR 50199.
    The EPA intends to act on these revisions after a future EPA 
rulemaking is published to include revisions to additional definitions 
in the PSD regulations.

B. What the EPA Is Acting On

    The EPA is proposing to approve all revisions as submitted by the 
State of South Dakota on October 23, 2015, with the exception of the 
revisions mentioned in section III. A. of this rulemaking. This 
includes the following revisions:
The Removal of PM2.5 SILs
    We are proposing to approve the removal of PM2.5 SILs 
from 74:36:10:06.
    On January 22, 2013, the U.S. Court of Appeals for the District of 
Columbia Circuit ruled on a challenge brought by the Sierra Club to the 
SILs and significant monitoring concentration (SMC) established for 
PM2.5 in the EPA's October 20, 2010 rule for implementing 
the PM2.5 NAAQS. The court found there was no authority for 
the SMC established for PM2.5 and, as a result, vacated the 
SMC. With respect to the PM2.5 SIL, the court vacated and 
remanded the SIL to the EPA at the agency's request. SILs and SMCs have 
been important screening tools that have been used to prevent 
unnecessary PSD permitting delays when the impact of the emission 
increases are considered de minimis. On December 9, 2013, the EPA 
issued a final rule that removes the PM2.5 SIL from the 
EPA's PSD regulations. The final rule also sets the SMC in the EPA's 
PSD regulations at 0 [mu]g/l, thus triggering the preconstruction 
monitoring requirement for any increase in ambient concentrations of 
PM2.5 from a major project.
Pre-Permit Construction Activities
    Chapter 74:36:20 requires an air quality construction permit for 
new businesses/facilities and existing businesses/facilities that 
modify their operations that do not meet the requirements for obtaining 
a preconstruction permit in Chapters 74:36:09 and 74:36:10. DENR 
submitted Chapter 74:36:20 to the EPA for inclusion in South Dakota's 
SIP. The EPA approved Chapter 74:36:20 in South Dakota's SIP on June 
27, 2014, except for the phrase, ``unless it meets the requirements in 
section 74:36:20:02.01,'' and all of section 74:36:20:02.01 (79 FR 
36419). This section was disapproved because construction was not 
limited to construction of concrete foundations, below ground plumbing, 
ductwork, or other infrastructure and/or excavation work prior to the 
issuance of the construction permit and there was no requirement for 
the source to receive a completeness determination (or some type of 
administrative approval) from the reviewing authority prior to 
construction. In this submittal, Section 74:36:20:02.01 allows small 
projects to start construction, which is limited to construction of 
concrete foundations, below ground plumbing, ductwork, or other 
infrastructure and/or excavation work, after they receive a 
completeness determination and prior to receiving a construction permit 
but does not allow them to start operation until the construction 
permit has been issued. The intention of the language was to allow 
construction of small sources that would not impact South Dakota's 
ability to achieve and/or maintain the NAAQS because of South Dakota's 
relative short construction season due to ground freezing during the 
winter season or other inclement weather that could potentially and 
unnecessarily delay the construction project. These changes were made 
to resolve the issue with the EPA's prior disapproval of section 
74:36:20:02.01 in South Dakota's SIP.
    South Dakota's proposed language sets specific conditions that must 
be met prior to a source commencing construction (but before a 
construction permit has been issued): (1) The owner/operator has 
submitted a construction permit application; (2) The owner/operator 
provided five days notice of their intention to initiate construction; 
(3) The new source or modification to an existing source is not subject 
to PSD or NSR (it has to be a true minor source); (4) The new source or 
modification is not subject to case-by-case MACT; (5) The owner/
operator is liable for all construction conducted before the permit is 
issued, and the applicant may not operate any source equipment that may 
emit any air pollutant prior to receiving a permit; (6) The owner/
operator must cease construction if the DENR demonstrates that the 
construction will interfere with the attainment or maintenance of a 
NAAQS or increment; and (7) The owner/operator must make any changes to 
the new source or modification of an existing source that may be 
imposed in the issued construction permit.
    This revision is in compliance with federal requirements, 
including: (1) CAA section 110(a)(2)(c), which requires states to 
include a minor NSR program in their SIP to regulate modifications and 
new construction of stationary sources within the area as necessary to 
assure the NAAQS are achieved; (2) The regulatory requirements under 40 
CFR 51.160, including section 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; and (3) the statutory 
requirements under CAA section 110(l), which provides that the EPA 
cannot approve a SIP revision if the revision would interfere with any 
applicable requirement concerning attainment and reasonable further 
progress, or any other applicable requirement of the CAA.

[[Page 52392]]

Insignificant Increase in Allowable Emissions
    On July 1, 2011, the EPA promulgated a federal minor source review 
program in Indian country (Tribal NSR Rule) (76 FR 38748). The Tribal 
NSR Rule does not require a construction permit for new sources or 
modifications to existing sources if emissions are below the minor NSR 
threshold in Table 1 of 40 CFR 49.153.
    In this rulemaking, the EPA established de minimis thresholds at 
which sources are to be exempt from permitting requirements for each 
regulated NSR pollutant (see 40 CFR 49.153--Table 1) utilizing an 
allowable-to-allowable applicability test. The EPA stated in this 
rulemaking that these threshold levels represent a reasonable balance 
between environmental protection and economic growth (76 FR 38758). The 
EPA further recognized in designing the tribal NSR rule, that the 
overarching requirement is ensuring NAAQS protection (76 FR 38756) as 
described in CAA section 110(a)(2)(C). In order to determine that the 
sources below minor NSR permit thresholds in 40 CFR 49.153--Table 1 
would be inconsequential to attainment or maintenance of the NAAQS, the 
EPA performed a national source distribution analysis (see 71 FR 
48702). In this analysis, the EPA looked at size distribution of 
existing sources across the country. Using the National Emissions 
Inventory (NEI), which includes the most comprehensive inventory of 
existing U.S. stationary point sources that is available, the EPA 
determined how many of these sources fall below the proposed minor NSR 
thresholds (see 71 FR 48702, Table 2). For each pollutant, the EPA 
found that only around 1 percent (or less) of total emissions would be 
exempt from review under the minor NSR program. At the same time, the 
thresholds would promote an effective balance between environmental 
protection and source burden because anywhere from 42 percent to 76 
percent of sources (depending on the pollutant) would be too small to 
be subject to preconstruction review (76 FR 38758). South Dakota, which 
contains areas of Indian country that are subject to the permitting 
thresholds in the tribal NSR rule, has established the same exemption 
levels as those in the tribal NSR rule. In addition, as the EPA 
explained in the tribal NSR rule, this will ``allow us to begin 
leveling the playing field with the surrounding state programs and will 
result in a more cost-effective program by reducing the burden on 
sources and reviewing authorities.'' (see 76 FR 38758)
    In order to be consistent with the EPA and to streamline the 
process for insignificant increases in air emissions, DENR is proposing 
to add ``insignificant increase in allowable emissions'' to the 
definition of ``permit revision'' in section 74:36:01(50) and an 
exemption to the definition of ``modification'' in section 74:36:01:10, 
which will allow construction if the air emission increases meet the 
definition of an ``insignificant increase in allowable emissions.'' 
This can also be referred to as a ``de minimus exemption.'' DENR is 
proposing to add a definition for ``insignificant increase in allowable 
emissions,'' which is derived from Table 1 in 40 CFR 49.153, in 
74:36:01:10.01. This process would still require the project to be 
covered by a permit but would use a process similar to the EPA's 
administrative amendment process.
    We have also reviewed South Dakota's air monitoring data over the 
last 5 years (see docket). This data shows South Dakota is below the 
NAAQS for all criteria pollutants.
    The EPA notes that we have approved several similar de minimis 
exemption provisions in other states as follows:
    1. On January 16, 2003, the EPA approved a minor NSR program for 
the State of Idaho (68 FR 2217). This rule allows changes to be 
considered exempt from permitting if the source's uncontrolled 
potential emissions are less than ten percent (10%) of the NSR 
significant emissions rate. For example: 1.5 tons per year for 
PM10, 4 tons per year for volatile organic compounds (VOCs), 
nitrogen dioxide (NO2), and sulfur dioxide (SO2), 
and 10 tons per year for carbon monoxide (CO). The EPA determined in 
this instance that states may exempt from minor NSR certain categories 
of changes based on de minimis or administrative necessity grounds in 
accordance with the criteria set out in Alabama Power Co. v. Costle, 
636 F.2d 323 (D.C. Cir. 1979). De minimis sources are presumed to not 
have an impact and the state has determined that their emissions would 
not prevent or interfere with attainment of the NAAQS, even within 
nonattainment areas.
    2. On February 13, 2012, the EPA approved a five tons per year 
potential emissions level as a de minimis threshold to be exempt from 
permitting requirements in the State of Montana (77 FR 7531). In this 
final rulemaking, the EPA determined this de minimis threshold met the 
requirements of CAA section 110(a)(2)(C), 40 CFR part 51.160 and CAA 
section 110(l).
    3. On May 27, 2008, the EPA approved a 25 tons per year actual 
emissions level as a de minimis threshold for fossil fuel burning 
equipment to be exempt from permitting requirements in the State of 
North Dakota, and a 5 ton per year actual emissions level as a de 
minimis threshold for any internal combustion engine, or multiple 
engines to be exempt from permitting requirements. The EPA determined 
the revision will not adversely impact the NAAQS or PSD increments (73 
FR 30308).
    4. On February 1, 2006, the EPA approved a 5 tons per year actual 
emissions level as a de minimis threshold to be exempt from permitting 
requirements in the State of North Carolina (see 61 FR 3584).
    We evaluated the addition of ``insignificant increase in allowable 
emissions'' to the South Dakota SIP using the following: (1) The 
statutory requirements under CAA section 110(a)(2)(c), which requires 
states to include a minor NSR program in their SIP to regulate 
modifications and new construction of stationary sources within the 
area as necessary to assure the NAAQS are achieved; (2) the regulatory 
requirements under 40 CFR 51.160, including section 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; and (3) the statutory requirements under CAA section 110(l), 
which provides that the EPA cannot approve a SIP revision if the 
revision would interfere with any applicable requirement concerning 
attainment and reasonable further progress, or any other applicable 
requirement of the CAA. Therefore, the EPA will approve a SIP revision 
only after it is demonstrated that such a revision will not interfere 
(``noninterference'') with attainment of the NAAQS, Rate of Progress 
(ROP), RFP or any other applicable requirement of the CAA.
    We are proposing to approve the addition of ``insignificant 
increase in allowable emissions.'' These revisions are expected to be 
inconsequential to attainment and maintenance of the NAAQS because: (1) 
Section 74:36 has safeguards which prevent circumvention of NSR 
requirements; (2) Sources are still regulated by other rules within 
74:36 and underlying statewide area source rules in the Administrative 
Rules of South Dakota (ARSD); (3) The insignificant thresholds in 
74:36:01:10.01 are the same as the de minimis level threshold in the 
Tribal

[[Page 52393]]

NSR rule and similar to many of the federally enforceable minor NSR 
programs in surrounding states and around the country; (4) South Dakota 
contains areas of Indian country that are subject to the permitting 
thresholds in the tribal NSR rule; and (5) The last 5 years of 
monitoring data for criteria pollutants (see docket) show that all 
pollutants are below NAAQS levels.
Removal of 40 CFR 52.21(b)(49)(v) From 74:36:09 (PSD)
    We are approving the removal of 40 CFR 52.21(b)(49)(v) from 
74:36:09 to reflect the Coalition Amended Judgement, which only 
specifically ordered that the EPA regulations under review (including 
40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v)) be vacated. The EPA's 
final rulemaking titled ``Prevention of Significant Deterioration and 
Title V Permitting for Greenhouse Gases: Removal of Certain Vacated 
Element,'' which was published on August 19, 2015 (80 FR 50199) removed 
40 CFR 52.21(b)(49)(v) from the CFR.
Proposed Correction to IBR Material in Previous Rulemaking
    In our final rule published in the Federal Register on February 16, 
2016 (81 FR 7706) we inadvertently used an incorrect approval date in 
the updates to the South Dakota regulatory table. The EPA is proposing 
to correct this error with today's action. The IBR material for our 
February 16, 2016 action is contained within this docket.

IV. What action is the EPA taking?

    For the reasons described in section III of this proposed 
rulemaking, the EPA is proposing to approve South Dakota's October 23, 
2015 submittal, with the exceptions noted in section III. Our action is 
based on an evaluation of South Dakota's revisions against the 
requirements of CAA section 110(a)(2)(c) and regulatory requirements 
under 40 CFR 51.160-164 and 40 CFR 51.166. The EPA is also proposing to 
approve a correction to our final rule published in the Federal 
Register on February 16, 2016 (81 FR 7706).

IV. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference the Administrative Rules of South Dakota pertaining to 
section 74:36 as outlined in this preamble. The EPA has made, and will 
continue to make, these documents generally available electronically 
through www.regulations.gov and/or in hard copy at the appropriate EPA 
office (see the ADDRESSES section of this preamble for more 
information).

V. Statutory and Executive Order Reviews

    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, the 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 proposed 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 the 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 the 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, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds, Incorporation by reference.

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

    Dated: July 26, 2016.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2016-18759 Filed 8-5-16; 8:45 am]
 BILLING CODE 6560-50-P