Air quality implementation plans; approval and promulgation; various States: South Dakota,

[Federal Register: September 21, 1999 (Volume 64, Number 182)]

[Proposed Rules]

[Page 51088-51091]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr21se99-22]

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.

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 The State also repealed a rule that required stack tests for asphalt batch plants, other than the initial stack test required by the NSPS, to be performed if certain conditions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:

1. 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.

2. 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.

3. 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.

4. 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:

   1. 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.

   2. Any land held in trust by the United States for an Indian tribe, and

   3. 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

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      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.

5. 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.

6. What Are the Administrative Requirements Associated With This Action?

   1. Executive Order 12866

      The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled ``Regulatory Planning and Review.''

   2. 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.

   3. 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.

   4. 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

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      governments. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this proposed rule.

   5. 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).

   6. 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.

   7. 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. 99-24508Filed9-20-99; 8:45 am]

      BILLING CODE 6560-50-P