[Federal Register Volume 62, Number 198 (Tuesday, October 14, 1997)]
[Rules and Regulations]
[Pages 53239-53242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27129]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MN40-03-6988; FRL-5906-3]
Approval and Promulgation of State Implementation Plan;
Minnesota; Evidentiary Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This final action approves the State Implementation Plan (SIP)
revision submitted by the State of Minnesota. The State's revision
clarifies the types of testing and monitoring data, including stack and
process monitoring data, that can be used directly for compliance
certifications and enforcement.
EFFECTIVE DATE: This final rule is effective November 13, 1997.
ADDRESSES: Copies of the documents relevant to this action are
available forpublic inspection during normal business hours at the
following location:U.S. Environmental Protection Agency, Region 5,
Regulation Development Branch, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Regulation
Development Section 2, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago,
Illinois 60604. Telephone: (312) 353-6960.
SUPPLEMENTARY INFORMATION:
I. Background
In 1990, section 114 of the Clean Air Act (Act) was amended to
require the Administrator of EPA to promulgate rules implementing an
enhanced monitoring and compliance program for major stationary sources
of air pollution. EPA determined that certain SIPs may preclude EPA and
the States from implementing such a program because these SIPs may be
interpreted to limit the types of testing and monitoring data
[[Page 53240]]
that may be used for determining compliance and establishing
violations. Therefore, EPA issued a SIP call to those States whose SIPs
may have limited the types of testing and monitoring data that may be
used for determining compliance and establishing violations.
On March 24, 1994, EPA issued a SIP call to the State of Minnesota
to revise its SIP. As part of the SIP call, EPA provided draft SIP
language to the State. The SIP call clarified that any monitoring
approved for the source (and included in a federally enforceable
operating permit) may form the basis of the compliance certification,
and that any credible evidence may be used for purposes of enforcement
in Federal court.
On April 9, 1997, EPA published a direct final rulemaking approving
the Minnesota Pollution Control Agency's (MPCA's) SIP revision that was
made in response to EPA's SIP call. During the 30 day public comment
period, adverse comments were received from the Minnesota Chamber of
Commerce, the American Petroleum Institute and the National
Environmental Development Association.
II. Public Comment/EPA Response
The following evaluation summarizes each comment received and EPA's
response to the comment.
Minnesota Chamber of Commerce Comments
Following is a summary of comments received from the Minnesota
Chamber of Commerce in a letter dated May 9, 1997 signed by Sherry
Munyon. After each comment is EPA's response.
Comment 1: EPA's final ``credible evidence'' rule clearly removes
any reference to ``presumptively credible'' forms of evidence and
properly leaves questions of legal admissibility and credibility to
judicial and administrative tribunals (62 FR 8316 February 24, 1997).
Therefore, it appears that EPA is set to approve a SIP revision
containing a rule based on an interpretation to which it no longer
subscribes.
Response 1: In writing its rule, the MPCA did not feel that it had
the authority to create presumptively credible evidence, since the MPCA
did not feel it had the authority to create judicial ``presumptions.''
Therefore, the MPCA simply stated that violations may be based on any
required monitoring method or any credible evidence. In doing this, the
MPCA clarifies that its own rules cannot be used to limit a court's
consideration of any credible evidence of a violation of a MPCA
standard. This does not create judicial presumptions, nor does it
conflict with EPA's final Credible Evidence rule.
Comment 2: If MPCA's rule is incorporated into the SIP, sources
would then face two different standards regarding the admissibility and
credibility of evidence.
Response 2: The EPA believes, contrary to the commentor, that
approving this SIP revision actually enhances consistency rather than
creating inconsistency. Since the rule submitted for Federal
approvability is already adopted at the State level, approving it into
the SIP would mean that both State and Federal authorities would be
enforcing the same provisions.
American Petroleum Institute Comments
Following is a summary of comments received from the American
Petroleum Institute in a letter dated May 8, 1997 signed by John E.
Reese. After each comment is EPA's response.
Comment 1: Because sections 7007.0800 Subpart 6.C.(5) and 7017.0100
Subparts 1 and 2 of the Minnesota regulations were based on EPA's
premature March 24, 1994 SIP call, the Minnesota regulations are not
consistent with the current status of EPA's Enhanced Monitoring
rulemaking. For example, section 7007.0800 Subpart 6.C.(5) makes
reference to ``an enhanced monitoring protocol'' even though in 1995
EPA abandoned the Enhanced Monitoring approach in favor of the
Compliance Assurance Monitoring (CAM) approach. Thus, the reference to
``Enhanced Monitoring'' in the Minnesota regulations is likely to cause
confusion, and should be revised.
Response 1: By stating that the Minnesota rule, made in response to
EPA's March 24, 1994 SIP call, is inconsistent with the current status
of EPA's Enhanced Monitoring Rule, the commentor makes the argument
that EPA's SIP call is inconsistent with the current status of EPA's
Enhanced Monitoring Rule. This is not the case. In the EPA's final
Credible Evidence Revisions rule, EPA has stated that:
EPA's decision to forego the enhanced monitoring approach in favor
of the CAM proposal has no effect on the basic goals of the SIP
call, which are to clarify that non-reference test data can be used
in enforcement actions, and to remove any potential ambiguity
regarding this data's use for Title V compliance certifications (62
FR 8314, p. 8327).
While the commentor is correct in pointing out that MPCA's SIP
revision does include language in section 7007.0800 Subpart 6.C.5 that
makes reference to ``an enhanced monitoring protocol,'' EPA does not
believe that any confusion will arise from the language found in
Minnesota's rule. The section that contains the reference to the
enhanced monitoring protocol does not limit the additional methods that
can be used to demonstrate compliance with, or violation of, a standard
to only an enhanced monitoring protocol. Also included are, ``any other
monitoring method incorporated into a permit issued under this
chapter.'' If only the language pertaining to ``an enhanced monitoring
protocol'' were included as a revision to the language found in MPCA's,
a SIP revision might be warranted. However, because there is additional
language that does not limit using other methods as well, no conflict
or confusion will arise from mentioning an enhanced monitoring
protocol.
Comment 2: EPA's SIP call is invalid. Neither section 110 or any
other provision of the Clean Air Act requires States to include
credible evidence provisions in their SIPs. Even if one accepts EPA's
assertion in the recently promulgated Credible Evidence Rule, 62 FR
8314 (February 24, 1997), that sections 113(a), 113(e), and 114 of the
Clean Air Act authorize EPA to use any Credible Evidence to establish
violations of emissions standards and limitations, those provisions
speak only to the Administrator, and the courts, not to the States.
Response 2: EPA's SIP call is valid. The purpose of the SIP call is
to clarify that non-reference test data can be used in enforcement
actions, and to remove any potential ambiguity regarding this data's
use for Title V compliance certifications. In responding to the SIP
call the MPCA submitted to EPA rule revisions that ensured that the
Minnesota SIP does not preclude the use, including the exclusive use,
of any credible evidence or information, relevant to whether a source
would have been in compliance with applicable requirements if the
appropriate performance or compliance test or procedures had been
performed. This is all that is required to be consistent with EPA's
final Credible Evidence rule.
Comment 3: The reference to ``Minnesota Statutes'' is incorrect,
the correct reference is to ``Minnesota Rules.''
Response 3: EPA recognizes that the codification from the direct
final Federal Register rule published on April 9, 1997 did incorrectly
reference ``Minnesota Statutes.'' The new codification correctly
references ``Minnesota Rules.''
[[Page 53241]]
National Environmental Development Association Comments
Following is a summary of comments received from the National
Environmental Development Association in a letter dated May 9, 1997
signed by Leslie Sue Ritts. After each comment is EPA's response.
Comment 1: EPA cannot and should not approve State SIP revisions
during the pendency of judicial review of EPA's credible evidence rule.
Response 1: The commentor assumes that if EPA's Credible Evidence
rule is found to be illegal, it follows that Minnesota's rule is also
illegal and cannot be approved. This is not necessarily the case. If
EPA's rule is found to be illegal, EPA may not be able to require
Minnesota to follow the requirements of the SIP call but EPA can still
approve Minnesota's SIP revision. States can submit, and EPA can
approve, SIP revisions that exceed Federal requirements at any point in
time. If it is found that EPA's Credible Evidence rule is found to be
illegal, this does not prevent EPA from approving MPCA's SIP revision.
Comment 2: The National Environmental Development Association
believes that the current rule should be withdrawn because Minnesota's
rule is clearly based on a version of the enhanced monitoring proposal
and an EPA ``model rule'' that were withdrawn by EPA in April 1995.
References to ``presumptive'' credible evidence in the Federal Register
notice, while also not clear on the face of the Minnesota regulations,
are also plainly inconsistent with the notion in the final Federal
credible evidence rule that all monitoring evidence, whatever its
origin, would be weighed by a trier of fact and to provisions in the
EPA credible rule that condition the use of credible evidence as
``relevant to whether a source would have been in compliance with
applicable requirements if the appropriate performance or compliance
test or procedure had been performed.'' In addition, references in the
Federal Register notice to Federal ``enhanced monitoring protocols''
and ``model rules'' are obsolete. These will eventually be replaced by
Federal requirements for ``compliance assurance monitoring'' plans
under the pending CAM rule which the Federal agency is about to
finalize.
Response 2: The MPCA did not base its rule on EPA's model rule. In
writing its rule, the MPCA did not feel that it had the authority to
create presumptively credible evidence, since the MPCA did not feel it
had the authority to create judicial ``presumptions.'' Therefore, the
MPCA simply stated that violations may be based on any required
monitoring method or any credible evidence. In doing this, the MPCA
clarifies that its own rules cannot be used to limit a court's
consideration of any credible evidence of a violation of a MPCA
standard. This does not create judicial presumptions, nor does it
conflict with EPA's final Credible Evidence rule.
III. Final Action
The comments received were found to warrant no changes from
proposed to final action on the approval of Minnesota's Evidentiary
Rule. Therefore, EPA is approving the Evidentiary Rule submitted by the
MPCA for inclusion in the State's SIP. The approval of this submittal
into the SIP clarifies the types of testing and monitoring data that
can be used for compliance demonstrations and enforcement.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. Each request for revision to the SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
IV. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary D. Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
This approval does not create any new requirements, but simply
approves requirements that the State is already imposing. Therefore,
because the Federal SIP approval does not impose any new requirements,
the Administrator certifies that it does not have a significant impact
on any small entities affected. Moreover, due to the nature of the
Federal-State relationship under the Act, preparation of a flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The Act forbids EPA to base its
actions concerning state plans on such grounds. Union Electric Co. v.
EPA., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates Act
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must undertake various actions
in association with 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 the private sector, of $100 million
or more. This Federal action approves pre-existing requirements under
State or local law. No new Federal requirements are imposed.
Accordingly, no additional costs to state, local, or tribal
governments, or the private sector, result from this action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a major rule as defined by 5 U.S.C.
804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 15, 1997. 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)).
[[Page 53242]]
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Dated: September 16, 1997.
David A. Ullrich,
Acting Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart Y--Minnesota
2. Section 52.1220 is amended by adding paragraph (c)(44) to read
as follows:
Sec. 52.1220 Identification of plan.
* * * * *
(c) * * *
(44) This revision provides for data which have been collected
under the enhanced monitoring and operating permit programs to be used
for compliance certifications and enforcement actions.
(i) Incorporation by reference.
(A) Minnesota Rules, sections 7007.0800 Subpart 6.C.(5), 7017.0100
Subparts 1 and 2, both effective February 28, 1995.
* * * * *
[FR Doc. 97-27129 Filed 10-10-97; 8:45 am]
BILLING CODE 6560-50-F
