[Federal Register: June 10, 2002 (Volume 67, Number 111)]
[Rules and Regulations]
[Page 39619-39621]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jn02-6]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[SIP NO. SD-001-0012a; FRL-7216-1]
Approval of an Air Quality Implementation Plan Revision; South
Dakota; Rapid City Street Sanding Regulations To Protect the National
Ambient Air Quality Standards for PM-10
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action approving a revision of the
Administrative Rules South Dakota (ARSD) Chapter 74 Section 36:17
affecting South Dakota's Air Pollution Control Program for Rapid City,
South Dakota. In particular, the revisions are regarding requirements
for street sanding and deicing. These regulations were submitted to EPA
on January 26, 1996. South Dakota submitted this revision to make the
street sanding rules federally enforceable. EPA is approving the
revision to Chapter 74 Section 36:17 of the ARSD as part of South
Dakota's State Implementation Plan (SIP) under section 110 of the Clean
Air Act (CAA).
DATES: This rule is effective on August 9, 2002, without further
notice, unless EPA receives adverse comment by July 10, 2002. If
adverse comment is received, EPA will publish a timely withdrawal of
the direct final rule in the Federal Register informing the public that
the rule will not take effect.
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 300, Denver,
Colorado, 80202. Copies of the documents relevant to this action are
available for public inspection during normal business hours at the Air
and Radiation Program, U.S. Environmental Protection Agency, Region
VIII, 999 18th Street, Suite 300, Denver, Colorado, 80202 and copies of
the Incorporation by Reference material are available at the Air and
Radiation Docket and Information Center, Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460. Copies of the State
documents relevant to this action are available for public inspection
at the South Dakota Department of Environmental and Natural Resources,
Air Quality Program, Joe Foss Building, 523 East Capitol, Pierre, South
Dakota 57501.
FOR FURTHER INFORMATION CONTACT: Mark Komp, EPA, Region VIII, (303)
312-6022 or Laurel Dygowski, EPA, Region VIII, (303) 312-6144.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' are used, means Environmental Protection Agency.
Table of Contents
I. Background Information
A. Events Leading to this Action
B. What Action is EPA Taking?
C. What is the State Process for submitting materials to EPA?
D. What Was Included in South Dakota's Submittal?
E. Why is EPA Approving This Adoption of Administrative Rule Article
74:36:17
II. Final Action
III. Administrative Requirements
I. Background Information
A. Events Leading to This Action
Air quality monitoring for particulates in the Rapid City, South
Dakota area in 1992 collected two samples that exceeded the 24-hour
National Ambient Air Quality Standard (NAAQS) for particulates less
than or equal to 10 microns in size (PM-10). The exceedances occurred
on October 13 and 25, 1992 and were later documented to be the result
of high winds blowing dust through the Rapid City, South Dakota area.
An exceedance is a particulate concentration that is higher than 150
[mu]g/m3 calculated from a filter sample exposed to ambient
air during a 24-hour period. An average of three exceedances over a 3-
year period is considered a violation. Exceedances can include those
that are expected, based on statistical analysis but not actually
measured by the State. The two exceedances from filter samples taken in
Rapid City, South Dakota were calculated to be a violation, based on
statistical analysis involving the total number of filters exposed.
In a March 25, 1994 letter, South Dakota requested that we grant
exceptional event status to these two exceedances rather than declare
the area nonattainment for the PM-10 NAAQS. The State asserted that the
exceedances were from uncontrollable natural sources, that the Rapid
City area had been in the midst of a long-term drought, and winds
during the days of the exceedance were high enough to qualify as an
``exceptional event''. EPA's exceptional event guidance, 40 CFR part
50, appendix K, describes such events leading to exceedances as rare
occurrences not likely to recur. EPA Region VIII concluded that the
data could not be excluded from calculating exceedances of the PM-10
NAAQS, and after applying 40 CFR part 50, appendix K, to the data,
determined that Rapid City violated the 24-hour PM-10 standard in 1992.
South Dakota's Department of Environment and Natural Resources
(DENR) described in the March 25, 1994 letter certain corrective
actions that had been taken by Pennington County, businesses, and
industry to reduce particulate matter levels in Rapid City. DENR
pointed out that these measures had been effective, as no further
exceedances of the PM-10 standard had occurred in two and one-half
years since the exceedances in 1992.
In recognition of DENR's position, EPA requested, in a letter from
William Yellowtail, Regional Administrator, dated July 19, 1995, that
the State outline a course of action that would serve as justification
for EPA to suspend any further consideration of a nonattainment
designation for the area. The course of action was to provide assurance
that the State would maintain an adequate air monitoring network in
Rapid City and would fulfill a commitment to incorporate into the SIP
enforceable regulations that would embody the control strategies
currently being implemented in Rapid City for both point and fugitive
dust sources.
The State responded by adopting street sanding and deicing
regulations for Rapid City and adding fugitive dust control
requirements to industrial air quality permits. These permits were
later incorporated into operating permits issued by the State under the
CAA Title V permit program. South Dakota also expressed its continuing
commitment to operate the Rapid City particulate matter monitoring
network.
In 1996, a change in our policy related to exceptional events
broadened EPA's interpretation of high PM-10 concentrations that are
not considered exceedances. The new policy, called the Natural Events
Policy, was expressed in a May 30, 1996 memorandum from EPA's former
Assistant Administrator for Air and Radiation, Mary Nichols. The
Natural Events Policy identified high wind events as one of three
categories that affect the PM-10 NAAQS. The policy provides that EPA
will exercise its discretion under section 107 (d)(3) of the CAA not to
redesignate areas as nonattainment if the State develops and implements
a plan to
[[Page 39620]]
respond to the health impacts of natural events.
Specifically the guiding principles followed in this policy are:
1. The protection of public health has the highest priority;
2. The public must be informed whenever the air quality in the area
is unhealthy;
3. All valid ambient air quality data should be submitted to EPA
and made available for public review;
4. State and local agencies must take appropriate and reasonable
measures to safeguard public health regardless of the source of
emisssions;
5. Emission controls should be applied to sources that contribute
to exceedances of the PM-10 NAAQS when those controls will result in
fewer violations of the standards.
Despite the adoption of street sweeping and deicing regulations and
controls on fugitive dust from industrial sources, the Rapid City area
monitored PM-10 exceedances in 1996 and 1997. On July 14, 1997, the
State sent information to EPA to support a finding that these
exceedances were covered by the Natural Events Policy. We reviewed the
data and agreed with the State's interpretation.
The State of South Dakota responded to the guiding principles set
forth in the Natural Events Policy by developing a Natural Events
Action Plan (NEAP). In the plan, the State committed to a public
education program, developed Best Available Control Measures (BACM) for
sources in the industrial complex in west Rapid City and committed to
document all high wind events that occur and send the information to
EPA. BACM measures were required to be implemented prior to the end of
May 2000, with one exception. Fisher Sand and Gravel had been granted
an extension until September 30, 2000, to implement emission controls
for the rock crusher. All BACM measures are now in place in the Rapid
City area.
Natural events in the future that lead to exceedances must be
documented according to the State's NEAP. Sanding and deicing
regulations and fugitive dust control measures will become federally
enforceable upon EPA approval of the SIP revision and through permits
issued under the State's Title V operating permit program respectively.
B. What Action Is EPA Taking?
EPA is approving South Dakota's revision to its SIP regarding the
application and removal of street sanding and the application of
deicing materials within the city limits of Rapid City. The revision
was submitted on January 22, 1996 and appears in South Dakota's
Administrative Rule Chapter 74:36:17.
C. What Is the State Process for Submitting These Materials to EPA?
The Act requires States to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the Act provides that each implementation
plan admitted by a State must be adopted after reasonable notice and
public hearing. Section 110(1) of the Act similarly provides that each
revision to an implementation plan submitted by a State under the Act
must be adopted by such State after reasonable notice and public
hearing.
EPA also must determine whether a submittal is complete and
therefore warrants further EPA review and action (see section 110(k)(1)
and 57 FR 13565). EPA's completeness criteria are set out at 40 CFR
part 51, appendix V. EPA attempts to make completeness determinations
within 60 days of receiving a submission. However, a submittal is
deemed complete by operation of law if a completeness determination is
not made by EPA six months after receipt of submission. This submittal
became complete by operation of law on July 22, 1996 in accordance with
section 110(k)(1)(B) of the Act.
The South Dakota Board of Minerals and Environments held a public
hearing and adopted the Rapid City sanding and deicing regulations on
December 21, 1995. The rules became effective at the State level on
February 12, 1996.
D. What Was Included in South Dakota's Submittal?
On January 22, 1996, the State of South Dakota submitted a revision
to its SIP. The SIP revision consists of street sanding and deicing
requirements that apply within the city limits of Rapid City, South
Dakota. Sanding materials that do not break down into smaller particles
under road traffic are specified for use within Rapid City. In
addition, deicing chemicals are to be used to lessen the need for
sanding the roads and will be used to the greatest extent possible. The
January 22, 1996 submittal includes a letter from Nettie H. Myers,
Secretary of the Department of South Dakota's Environment and Natural
Resources. The letter makes commitments to requirements described in
EPA's letter dated July 19, 1995. These commitments are to maintain a
monitoring network for PM-10 in the Rapid City area, and include
fugitive dust control plans in Title V permits for major man-made
sources of dust in the Rapid City area.
E. Why Is EPA Approving This Adoption of Administrative Rule Article
74:36:17
We are approving the revision to South Dakota's SIP because the
revision is consistent with all requirements of the CAA and with EPA
guidance. Specifically, we are approving ARSD Chapter 74:36:17 as part
of the SIP section 110 (K) (3) of the CAA.
The effect of this approval is that ARSD Chapter 74:36:17 will be
federally enforceable.
II. Final Action
EPA is approving South Dakota's revision to its SIP regarding the
application and the removal of street sanding and deicing materials
within the city limits of Rapid City, submitted on January 26, 1996.
The revision appears in ARSD Chapter 74:36:17.
Section 110(l) of the Clean Air Act states that a SIP revision
cannot be approved if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress
towards attainment of the NAAQS or any other applicable requirements of
the Act. The South Dakota SIP revisions that are the subject of this
document do not interfere with the maintenance of the NAAQS or any
other applicable requirement of the Act because the State of South
Dakota's street sanding rule is more stringent than what currently
exists and this rule will enhance the State's efforts in implementing
the Clean Air Act. Therefore, section 110(l) requirements are
satisfied.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. South Dakota has had the rulemaking in place for
several years with no adverse reaction. However, in the ``Proposed
Rules'' section of today's Federal Register publication, EPA is
publishing a separate document that will serve as the proposed rule to
approve the SIP revision if adverse comments are filed. This rule will
be effective August 9, 2002, without further notice unless the Agency
receives adverse comments by July 10, 2002. If the EPA receives adverse
comments, EPA will publish a timely withdrawal in the Federal Register
informing the public that the rule will not take effect. EPA will
address all public comments in a subsequent final rule based on the
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting must do so at this
time.
[[Page 39621]]
Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment.
III. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
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 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S.
Senate, the U.S. House of Representatives, and the Comptroller
General of the United States prior to publication of the rule in the
Federal Register. A major rule cannot take effect until 60 days after
it is published in the Federal Register. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by August 9, 2002. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Dated: May 13, 2002.
Robert E. Roberts,
Regional Administrator, Region VIII.
40 CFR part 52, subpart QQ of chapter I, title 40 is amended as
follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart QQ--South Dakota
2. Section 52.2170 is amended by adding paragraph (c)(20) to read
as follows:
Sec. 52.2170 Identification of plan.
* * * * *
(c) * * *
(20) On January 22, 1996, the designee of the Governor of South
Dakota submitted provisions in Section 74:36:17 of the Administrative
rules of South Dakota. The provisions consist of street sanding
requirements that apply within the city limits of Rapid City, South
Dakota.
(i) Incorporation by reference.
(A) Administrative Rules of South Dakota, Air Pollution Control
Program, Chapter 74:36:17.
(ii) Additional materials.
(A) Letter of March 25, 1994 from South Dakota Department of
Environment and Natural Resources discussing whether EPA should
designate Rapid City as nonattainment for the PM-10 standard.
(B) Letter of July 19, 1995 from EPA Region VIII discussing with
the South Dakota Department of Environment and Natural Resources the
exceedances of the PM-10 standard measured in the Rapid City.
(C) Letter of November 16, 1995 from the South Dakota Department of
Environment and Natural Resources describing the commitment the State
of South Dakota has toward permit exceedances of the PM-10 standard in
the future.
(D) Letter of January 22, 1996 from the South Dakota Department of
Environment and Natural Resources transmitting Rapid City street
sanding requirements.
[FR Doc. 02-14366 Filed 6-7-02; 8:45 am]
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