02-4400. Approval and Promulgation of Implementation Plans; Minnesota

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency is approving a site-specific revision to the Minnesota Sulfur Dioxide (SO₂) State Implementation Plan (SIP) for the Northern States Power Company (NSP) Riverside Plant. By its submittal dated September 1, 1999, the Minnesota Pollution Control Agency (MPCA) requested that EPA approve NSP Riverside's Title V Operating Permit into the Minnesota SO₂ SIP and remove the NSP Riverside Administrative Order from the state SO₂ SIP. The request is approvable because it satisfies the requirements of the Clean Air Act (Act). The rationale for the approval and other information are provided in this notice.

DATES:

This direct final rule will be effective April 29, 2002, unless EPA receives adverse comment by March 28, 2002. If EPA receives adverse comments, 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: Carlton Nash, Chief, Regulation Development Section, Air Programs Branch (AR-18J), United States Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Copies of the documents relevant to this action are available for inspection during normal business hours at the above address. (Please telephone Christos Panos at [phone], before visiting the Region 5 office.)

A copy of the SIP revision is available for inspection at the Office of Air and Radiation (OAR) Docket and Information Center (Air Docket 6102), Room M1500, United States Environmental Protection Agency, 401 M Street S.W., Washington, DC 20460, [phone].

FOR FURTHER INFORMATION CONTACT:

Christos Panos, Regulation Development Section, Air Programs Branch (AR-18J), Air and Radiation Division, United States Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone].

SUPPLEMENTARY INFORMATION:

This supplemental information section is organized as follows:

I. General Information

1. What action is EPA taking today?

2. Why is EPA taking This action?

II. Background on Minnesota Submittal

1. What is the background for this action?

2. What information did Minnesota submit, and what were its requests?

3. What is a “Title I Condition?”

III. Final Rulemaking Action

IV. Administrative Requirements

I. General Information

1. What Action Is EPA Taking Today?

In this action, EPA is approving into the Minnesota SO₂ SIP certain portions of the Title V permit for NSP's Riverside plant, located in Minneapolis, Hennepin County, Minnesota. Specifically, EPA is only approving into the SIP those portions of the permit cited as “Title I condition: State Implementation Plan for SO₂.” In this same action, EPA is removing the NSP Riverside Plant Administrative Order from the state SO₂ SIP.

2. Why Is EPA Taking This Action?

EPA is taking this action because the state's request does not change any of the emission limitations currently in the SIP or their accompanying supportive documents, such as the SO₂ air dispersion modeling. The revision to the SIP does not approve any new construction or allow an increase in emissions, thereby providing for attainment and maintenance of the SO₂ National Ambient Air Quality Standards (NAAQS) and satisfying the applicable SO₂ requirements of the Act. The only change to the SO₂ SIP is the enforceable document for the NSP Riverside Plant, from the Administrative Order to the federal Title V permit.

II. Background on Minnesota Submittal

1. What Is the Background for This Action?

NSP's Riverside Plant is located in Minneapolis, Hennepin County, Minnesota. Monitored violations of the primary SO₂ NAAQS from 1975 through 1977 led MPCA to recommend that EPA designate Air Quality Control Region (AQCR) 131 as nonattainment for SO₂. AQCR 131 includes Anoka, Carver, Dakota, Hennepin, Ramsey, Scott, and Washington Counties in the State of Minnesota. EPA designated AQCR 131 as a primary SO₂ nonattainment area on March 3, 1978 (43 FR 8962). In response to Part D requirements of the Clean Air Act, MPCA submitted a final SO₂ plan on August 4, 1980. EPA approved the Minnesota Part D SO₂ SIP for AQCR 131 on April 8, 1981 (46 FR 20996).

Subsequent monitored violations of the SO₂ NAAQS prompted a 1982 notice of SIP inadequacy for the Dakota County area of AQCR 131. Also, as a result of the promulgation of the Good Engineering stack height rule in 1985, the MPCA identified modeled attainment problems in other areas of AQCR 131. The submittal of a revised plan for the area was further delayed by the passage of the CAA Amendments in 1990. MPCA submitted the final SO₂ SIP revisions to EPA in three parts. On May 29, 1992 MPCA submitted the plan for the majority of the AQCR 131 area, which included Hennepin County. EPA first approved the Administrative Order for the NSP Riverside Plant into the Minnesota SO₂ SIP on April 14, 1994 (59 FR 17703) and amended the order in the SIP on October 13, 1998 (63 FR 54585).

2. What Information Did Minnesota Submit, and What Were Its Requests?

The SIP revision submitted by MPCA on September 1, 1999, consists of a Title V operating permit issued to the NSP Riverside Plant. The state has requested that EPA approve the following:

(1) The inclusion into the Minnesota SO₂ SIP only the portions of the NSP Riverside Plant Title V permit cited as “Title I condition: State Implementation Plan for SO₂”; and,

(2) The removal from the Minnesota SO₂ SIP of the Administrative Order for the NSP Riverside Plant previously approved into the SIP.

3. What Is a “Title I Condition?”

SIP control measures were contained in permits issued to culpable sources in Minnesota until 1990 when EPA determined that limits in state-issued permits are not federally enforceable because the permits expire. The state then issued permanent Administrative Orders to culpable sources in nonattainment areas from 1991 to February of 1996.

Minnesota's Title V permitting rule, approved into the state SIP on May 2, 1995 (60 FR 21447), includes the term “Title I condition” which was written, in part, to satisfy EPA requirements that SIP control measures remain permanent. A “Title I condition” is defined as “any condition based on source-specific determination of ambient impacts imposed for the purposes of achieving or maintaining attainment with the national ambient air quality standard and which was part of the state implementation plan approved by EPA or submitted to the EPA pending approval under section 110 of the act * * *.” The rule also states that “Title I conditions and the permittee's obligation to comply with them, shall not expire, regardless of the expiration of the other conditions of the permit.” Further, “any title I condition shall remain in effect without regard to permit expiration or reissuance, and shall be restated in the reissued permit.”

Minnesota has since resumed using permits as the enforceable document for imposing emission limitations and compliance requirements in SIPs. The SIP requirements in the permits submitted by MPCA are cited as “Title I condition: State Implementation Plan for SO₂,” therefore assuring that the SIP requirements will remain permanent and enforceable. In addition, EPA reviewed the state's procedure for using permits to implement site-specific SIP requirements and found it to be acceptable under both Titles I and V of the Act (July 3, 1997 letter from David Kee, EPA, to Michael J. Sandusky, MPCA). The MPCA has committed to using this procedure if the Title I SIP conditions in the permit issued to the NSP Riverside Plant and included in the SIP submittal need to be revised in the future.

III. Final Rulemaking Action

EPA is approving the site-specific SIP revision for the NSP Riverside Plant, located in Minneapolis, Hennepin County, Minnesota. Specifically, EPA is approving into the SIP only those portions of NSP Riverside's Title V permit cited as “Title I condition: State Implementation Plan for SO₂.” In this same action, EPA is also removing from the state SO₂ SIP the NSP Riverside Plant Administrative Order which had previously been approved into the SIP on April 14, 1994.

The EPA is publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse comments are filed. This rule will be effective April 29, 2002, without further notice unless we receive relevant adverse comments by March 28, 2002. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective April 29, 2002.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future implementation plan. 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

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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability.

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 April 29, 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
• Reporting and recordkeeping requirements
• Sulfur dioxide

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

Dated: January 17, 2002.

David A. Ullrich,

Acting Regional Administrator, Region 5.

Title 40 of the Code of Federal Regulations, chapter I, part 52, 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.

2. Section 52.1220 is amended by adding paragraph (c)(59) to read as follows:

§ 52.1220

Identification of plan.

* * * * *

(c) * * *

(59) On September 1, 1999, the State of Minnesota submitted a site-specific revision to the Minnesota Sulfur Dioxide (SO₂) SIP for the Northern States Power Company (NSP) Riverside Plant, located in Minneapolis, Hennepin County, Minnesota. Specifically, EPA is approving into the SO₂ SIP only those portions of the NSP Riverside Plant Title V Operating Permit cited as “Title I condition: State Implementation Plan for SO₂.” In this same action, EPA is removing from the state SO₂ SIP the NSP Riverside Plant Administrative Order previously approved and amended in paragraphs (c)(30) and (c)(46) of this section respectively.

(i) Incorporation by reference.

(A) Air Emission Permit No. 05300015-001, issued by the Minnesota Pollution Control Agency (MPCA) to Northern States Power Company—Riverside Plant on May 11, 1999, Title I conditions only.