[Federal Register: January 20, 2004 (Volume 69, Number 12)]
[Rules and Regulations]
[Page 2671-2674]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20ja04-9]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[SIP NO. SD-001-0016a; FRL-7606-6]
Approval and Promulgation of Air Quality Implementation Plans;
State of South Dakota; Regulations for State Facilities in Rapid City
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action approving State
Implementation Plan (SIP) revisions submitted by the State of South
Dakota on June 27, 2002. The June 27, 2002, submittal consists of
revisions to the administrative rules of South Dakota. These revisions
add a new chapter to regulate fugitive emissions of particulate matter
from State facilities and State contractors that conduct a construction
activity or continuous operation activity in the Rapid City air quality
control zone. The intended effect of this action is to make the
revisions to the administrative rules of South Dakota federally
enforceable. This action is being taken under section 110 of the Clean
Air Act.
DATES: This rule is effective on March 22, 2004, without further
notice, unless EPA receives adverse comment by February 19, 2004. 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 submitted by mail to Richard R.
Long, Director, Air and Radiation Program, Mailcode 8P-AR,
Environmental Protection Agency, Region 8, 999 18th Street, Suite 300,
Denver, Colorado, 80202. Comments may also be submitted electronically,
or through hand delivery/courier. Please follow the detailed
instructions described in sections (I)(B)(1)(i) through (iii) of the
SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Laurel Dygowski, EPA, Region 8, 999
18th Street, Suite 300, Mailcode 8P-AR, Denver, Colorado 80202, (303)
312-6144, e-mail dygowski.laurel@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. How Can I Get Copies of This Document and Other Related Information
?
1. The Regional Office has established an official public
rulemaking file available for inspection at the Regional Office. EPA
has established an official public rulemaking file for this action
under (SD-001-0016). The official public file consists of the documents
specifically referenced in this action, any public comments received,
and other information related to this action. Although a part of the
official docket, the public rulemaking file does not include
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. The official public rulemaking
file is the collection of materials that is available for public
viewing at the Air and Radiation Program, EPA Region 8, 999 18th
Street, Suite 300, Denver, CO. EPA requests that if at all possible,
you contact the contact listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. You may view the public rulemaking
file at the Regional Office Monday through Friday, 8 a.m. to 4 p.m.,
excluding Federal holidays. Copies of the incorporation by reference
material are also available at the Air and Radiation Docket and
Information Center, U.S. Environmental Protection Agency, Room B-108
(Mail Code 6102T), 1301 Constitution Ave., NW., Washington, DC 20460.
2. Copies of the State submittal are also available for public
inspection during normal business hours, by appointment at the State
Air Agency. Copies of the State documents relevant to this action are
also 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.
3. Electronic Access. You may access this Federal Register document
electronically through the Regulations.gov Web site located at http://www.regulations.gov
where you can find, review, and submit comments on,
Federal rules that have been published in the Federal Register, the
Government's legal newspaper, and are open for comment.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing at the EPA Regional Office,
as EPA receives them and without change, unless the comment contains
copyrighted material, CBI, or other
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information whose disclosure is restricted by statute. When EPA
identifies a comment containing copyrighted material, EPA will provide
a reference to that material in the version of the comment that is
placed in the official public rulemaking file. The entire printed
comment, including the copyrighted material, will be available at the
Regional Office for public inspection.
B. How and To Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate rulemaking identification number by including the text
``Public comment on proposed rulemaking (SD-001-0016)'' in the subject
line on the first page of your comment. Please ensure that your
comments are submitted within the specified comment period. Comments
received after the close of the comment period will be marked ``late.''
EPA is not required to consider these late comments.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD ROM you submit, and in any cover letter accompanying
the disk or CD ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket. If EPA cannot
read your comment due to technical difficulties and cannot contact you
for clarification, EPA may not be able to consider your comment.
i. E-mail. Comments may be sent by electronic mail (e-mail). Please
send any comments to long.richard@epa.gov and dygowski.laurel@epa.gov
and include the text ``Public comment on proposed rulemaking (SD-001-
0016)'' in the subject line. EPA's e-mail system is not an ``anonymous
access'' system. If you send an e-mail comment directly without going
through ``Regulations.gov'' (see below), EPA's e-mail system will
automatically capture your e-mail address. E-mail addresses that are
automatically captured by EPA's e-mail system are included as part of
the comment that is placed in the official public docket.
ii. Regulations.gov. Your use of Regulations.gov is an alternative
method of submitting electronic comments to EPA. Go directly to
Regulations.gov at http://www.regulations.gov, then click on the button
``TO SEARCH FOR REGULATIONS CLICK HERE,'' and select Environmental
Protection Agency as the Agency name to search on. The list of current
EPA actions available for comment will be listed. Please follow the
online instructions for submitting comments. The system is an
``anonymous access'' system, which means EPA will not know your
identity, e-mail address, or other contact information unless you
provide it in the body of your comment.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in section 2, directly
below. These electronic submissions will be accepted in WordPerfect,
Word or ASCII file format. Avoid the use of special characters and any
form of encryption.
2. By Mail. Send your comments to: Richard R. Long, Director, Air
and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency
(EPA), Region 8, 999 18th Street, Suite 300, Denver, Colorado 80202-
2466. Please include the text ``Public comment on proposed rulemaking
(SD-001-0016)'' in the subject line on the first page of your comment.
3. By Hand Delivery or Courier. Deliver your comments to: Richard
R. Long, Director, Air and Radiation Program, Mailcode 8P-AR,
Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite
300, Denver, Colorado 80202-2466. Such deliveries are only accepted
Monday through Friday, 8 a.m. to 4:55 p.m., excluding Federal holidays.
C. How Should I Submit CBI to the Agency?
Do not submit information that you consider to be CBI
electronically to EPA. You may claim information that you submit to EPA
as CBI by marking any part or all of that information as CBI (if you
submit CBI on disk or CD ROM, 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 CBI). Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
In addition to one complete version of the comment that includes
any 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 official public regional rulemaking file. If you submit the copy
that does not contain CBI on disk or CD ROM, mark the outside of the
disk or CD ROM clearly that it does not contain CBI. Information not
marked as CBI will be included in the public file and available for
public inspection without prior notice. If you have any questions about
CBI or the procedures for claiming CBI, please consult the person
identified in the For Further Information Contact section.
II. Summary of SIP Revision
A. Background
In 1980, the Rapid City Area Air Quality Board (Air Quality Board)
was created to address non-point source air pollution in Rapid City
after Rapid City was designated nonattainment by EPA for violation of
the National Ambient Air Quality Standards (NAAQS) for total suspended
particulates (TSP). The Air Quality Board addresses non-industrial
sources of fugitive emissions through the Rapid City Municipal Code
Chapters 8:34 through 8:44 and Pennington County Ordinance No. 12,
including the application of reasonable controls and permit
requirements for dust producing activities, such as general
construction and road construction.
When EPA changed the TSP standard to the PM10 standard, Rapid City
was no longer considered nonattainment for TSP and was designated as
unclassifiable for PM10. Subsequent to this, South Dakota determined
that under South Dakota law, SDCL 34A-1-36, the Air Quality Board does
not have the authority to regulate the State or State contractors since
the area is not in violation of the PM10 standard. In addition, the
Department of Environment and Natural Resources only addresses point
source emissions and fugitive emissions from industrial sources, which
means that there are no regulations for controlling fugitive emissions
from State agencies and State contractors who conduct a construction
activity or continuous operation activity. In addition, State agencies
or State contractors who emit fugitive dust have less stringent
requirements than contractors conducting non-State business.
To address this, the State of South Dakota developed new State air
quality rules for the Rapid City area that establish a State permitting
process for State facilities and State contractors that conduct a
construction activity or continuous operation activity in the Rapid
City air quality control zone. This would address the concern that
State
[[Page 2673]]
contractors and State agencies would be contributing excessive amounts
of fugitive dust that could lead to violations of the PM-10 NAAQS.
B. June 27, 2002, Submittal
On June 27, 2002, the State of South Dakota submitted a revision to
the State Implementation Plan (SIP). The June 27, 2002, submittal
consists of a revision to the Administrative Rules of South Dakota
(ARSD). This revision adds chapter 74:36:18. Chapter 74:36:18, titled
Regulations for State Facilities, applies to State contractors and
State agencies that conduct a construction activity or continuous
operation activity in the Rapid City air quality control zone. The
Rapid City air quality control zone is defined as a 10-mile by 14-mile
area within the following boundaries: (a) Commencing at the northwest
corner of Section 15, Township 2 north, Range 6 east; (b) east to the
northeast corner of Section 14, Township 2 north, Range 8 east; (c)
south to the southeast corner of Section 35, Township 1 north, Range 8
east; (d) west to the southwest corner of Section 34, Township 1 north,
Range 6 east; and (e) north to the point of beginning.
Chapter 74:36:18 was written to closely follow the existing Air
Quality Board permitting requirements. Chapter 74:36:18 requires State
contractors and State agencies that conduct a construction activity or
continuous operation activity in the Rapid City air quality control
zone that may cause fugitive emissions of particulate matter (PM) to be
released into the ambient air to obtain a permit issued by the State
prior to beginning the activity and to apply reasonably available
control technology (RACT). RACT must be implemented to prevent fugitive
emissions of PM from exceeding the visible emission limit of 20 percent
opacity. The opacity limit of 20 percent does not apply if the
following three meteorological conditions exist: (a) Five consecutive
days of 0.02 inches or less of precipitation each day excluding dry
snow; (b) forecasted peak wind gusts greater than 40 miles per hour;
and (c) forecasted average hourly wind speed greater than 20 miles per
hour.
III. Final Action
EPA is taking direct final action approving a State Implementation
Plan (SIP) revision submitted by the State of South Dakota on June 27,
2002. The June 27, 2002, submittal consists of a revision to the
administrative rules of South Dakota. This revision adds a new chapter
that regulates fugitive emissions of PM from State facilities and State
contractors that conduct a construction activity or continuous
operation activity in the Rapid City air quality control zone. The
intended effect of this action is to make the revision to the
administrative rules of South Dakota federally enforceable.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in the ``proposed rules'' section of today's
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision if adverse
comments are filed. This rule will be effective March 22, 2004, without
further notice unless the Agency receives adverse comments by February
19, 2004. 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. 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.
IV. Statutory and Executive Order Review
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 (Pub. L. 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
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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 March 22, 2004. 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: December 19, 2003.
Kerrigan G. Clough,
Acting Regional Administrator, Region 8.
0
40 CFR part 52, subpart QQ is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart QQ--South Dakota
0
2. Section 52.2170 is amended by adding paragraph (c)(22) to read as
follows:
Sec. 52.2170 Identification of plan.
* * * * *
(c) * * *
(22) On June 27, 2002, the designee of the Governor of South Dakota
submitted revisions to the State Implementation Plan. The June 27, 2002
submittal consists of revisions to the Administrative Rules of South
Dakota. These revisions add a new chapter 74:36:18, ``Regulations for
State Facilities in the Rapid City Area''. Chapter 74:36:18 regulates
fugitive emissions of particulate matter from state facilities and
state contractors that conduct a construction activity or continuous
operation activity within the Rapid City air quality control zone.
(i) Incorporation by reference.
(A) Chapter 74:36:18 of the Administrative Rules of South Dakota,
effective July 1, 2002.
[FR Doc. 04-1035 Filed 1-16-04; 8:45 am]
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