E6-1367. Approval and Promulgation of Implementation Plans: Minnesota: Alternative Public Participation Process

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is soliciting comment on the Minnesota Pollution Control Agency's (MPCA's) use of informing the public of upcoming rulemakings and public hearings via the internet as opposed to the past practice of using the newspaper or some other widely accessible printed media. Comments received may impact EPA's approval of the following requests made by the MPCA.

The EPA is proposing to approve a revision to the Minnesota State Implementation Plan (SIP) that will establish, pursuant to regulations on public hearings, an alternative public participation process for certain SIP revisions. On December 7, 2005, the Minnesota Pollution Control Agency (MPCA) submitted a request to change certain procedures involving the public hearing and notification process as it applies to SIPs. Minnesota held a public hearing on this SIP revision request on November 17, 2005. In its request, the MPCA has identified a number of types of SIP revisions that are noncontroversial and for which the public has historically shown little or no interest. For this limited number of SIP revisions, the MPCA would, if approved, offer the opportunity for a public hearing, but would not hold a hearing if one was not requested. The EPA agrees that the SIP types that have been identified by the MPCA have historically been noncontroversial and that offering the public the opportunity to request a public hearing rather than holding one automatically does not limit or curtail the public participation process.

Also, EPA is proposing to approve, pursuant to regulations on public hearings, a revision to the Minnesota SIP that provides that SIP revisions for which a public hearing was held at the time of the MPCA rulemaking, and where such public hearing met all the criteria necessary for a SIP public hearing, including, as discussed in this proposal, effective electronic notice, and the public was notified that the rule would be submitted as a SIP revision, no separate public hearing for SIP purposes would be held. MPCA included this revision to the Minnesota SIP in its December 7, 2005 request to EPA to revise certain provisions involving the SIP public hearing and notification process, and, correspondingly, included this revision in the public hearing which MPCA held on November 17, 2005. EPA agrees that a public hearing held at the time of the MPCA rulemaking, which meets the criteria for a SIP public hearing, including notice requirements, precludes the need for a separate public hearing for SIP purposes.

DATES:

Comments must be received on or before March 3, 2006.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-0012, by one of the following methods:

• www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone].
• Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
• Hand Delivery: John M. Mooney, Chief, Criteria Pollutant Section, (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-2006-0012. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. 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. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Section I of the SUPPLEMENTARY INFORMATION section of this document.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We recommend that you telephone Douglas Aburano, Environmental Engineer, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Douglas Aburano, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we” or “us” is used, we mean EPA. This supplementary information section is arranged as follows:

I. General Information.

A. Does This Action Apply to Me?

B. What Should I Consider as I Prepare My Comments for EPA?

II. What Action Is EPA Taking Today?

A. Automatic Public Hearing Is Not Necessary Because SIP Revision Is Either Nonsubstantive or Noncontroversial

B. Equivalent Hearing to a Public Hearing

C. Table Summarizing Proposed Alternative Public Hearing Processes

D. Use of Internet Notification of Upcoming Rulemakings and Public Hearings Versus Using Newspapers

E. Summary

III. Statutory and Executive Order Reviews

I. General Information

A. Does This Action Apply to Me?

This action applies to anyone who would participate in the public rulemaking process in Minnesota. This proposal may be of particular interest to parties who prefer notification of MPCA rulemakings and hearings through printed media, such as the newspaper, versus electronic media such as postings on the internet.

This proposal does not seek to limit the public participation process; rather, it is an effort to eliminate unnecessary public hearings and save MPCA time and resources. MPCA has identified a number of different types of SIP revisions that have received little, if any, public interest in the past and, when public hearings were held, no one attended these hearings. These public hearings are, therefore, viewed as consuming both valuable time and resources that the MPCA could utilize better on other projects. For these types of revisions, the state has revised its procedures to provide that public hearings will not automatically be held. Rather, the public will be provided the opportunity to request a public hearing and a hearing will be held only if requested. This revision regarding public hearings will not affect the public's ability to submit written comments on any SIP revision.

Also, MPCA has requested that when a public hearing that meets specific requirements has already been held in the state that this would be found to be the equivalent of a SIP public hearing.

B. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, 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 claimed as CBI). In addition to one complete version of the comment that includes 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 public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
• Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.

3. Additional Instructions for Specific Comments. EPA is soliciting specific comments on MPCA's use of the internet to inform the public of upcoming rulemakings and public hearings. In the past, before computer usage was as widespread as it is today, states would inform the public of upcoming public hearings by placing advertisements in the newspaper. Now that the use of computers and the internet is considered commonplace, we would like feedback on whether it is appropriate to no longer advertise upcoming rulemakings and public hearings in a printed format and to shift to an all electronic notification through use of internet publication. Additional information regarding these practices will follow in this notice. It is important we receive comments on this aspect of proposal because it may impact our proposed approval of the alternative public hearing processes submitted by MPCA.

II. What Action Is EPA Taking Today?

EPA is proposing to, under 40 CFR 51.102(g), approve an alternative public participation process that would apply to certain SIP revisions in the state of Minnesota. The goal of this new process is to preserve time and resources of the MPCA by eliminating automatic public hearings for the types of SIP revisions that have historically generated little, if any, public interest. This process, however, preserves the opportunity for the public to request a SIP public hearing.

Currently, 40 CFR 51.102 and Clean Air Act section 110(a)(2) and 110(l) require the state to hold public hearings for all SIP revisions prior to submitting such revisions to EPA for approval. This is true for all SIPs regardless of how minor the action or how little public interest has been expressed on the SIP revision under consideration. Under federal regulations found at 40 CFR 51.102(g)(2), alternative procedures may be approved provided they still ensure adequate public notification and public participation.

On December 7, 2005, the MPCA requested that its SIP be amended to incorporate alternative public participation procedures into the Minnesota SIP. The MPCA has identified limited types of SIP revisions that, historically, have received little, if any, public interest and when public hearings have been held for these SIP revisions, no one attended. For these types of SIP revisions, MPCA would instead offer the opportunity for a public hearing. Under this alternative method of public participation, only one request would be necessary and a public hearing would be held.

MPCA has also requested that when a state public hearing has been held on an MPCA rulemaking, that can be considered the equivalent of a SIP public hearing, when measured against the criteria for a SIP public hearing as provided at 40 CFR 51.102(d)-(f) [see the discussion on the use of electronic notification of rulmakings and public hearing in section II. C. of this notice], and where the public was notified that such rule would be submitted as a SIP revision, then a public hearing for SIP purposes only need not be held.

Included in MPCA's SIP amendment request were two exhibits. Exhibit 1 is a table describing the various types of SIP submittals that are made by the state. In the table, each SIP revision category is described and a reason is given why a public hearing should automatically be held or why an automatic public hearing is not necessary but the opportunity to request a public hearing still exists. The phrase “Administrative Permit Amendments” is used in Exhibit 1 and Exhibit 2 identifies how that phrase is defined by Minnesota Rules.

While Exhibit 1 describes all of the various SIP revisions that MPCA might make, for the purposes of this rulemaking we will discuss only: (1) the categories for which MPCA is requesting that public hearings would be held only if requested and (2) the category for which MPCA believes the equivalent of a SIP public hearing has already been held which obviates the need for a public hearing for SIP purposes only.

A. Automatic Public Hearing Is Not Necessary Because SIP Revision Is Either Nonsubstantive or Noncontroversial

In these instances, MPCA indicates that the public will have the opportunity to request a public hearing. The MPCA will schedule a tentative hearing, but stating in the public notice document (which is published in the Minnesota State Register in an online format only) that the hearing will not be held if there are no affirmative requests for it to be held.

1. Purely Administrative Changes—MPCA gives the examples of correcting typographical or grammatical errors. There is a presumption that this is not a change that would be of public concern as it is not substantive.

2. De minimis change to a “secondary” compliance requirement—Here, MPCA defines “secondary” requirement as a requirement that supports a “primary” requirement for a National Ambient Air Quality Standard (NAAQS). “Primary” requirements include, but are not limited to, restrictions such as an emission limit or fuel usage limit. An example of de minimis change to a “secondary” requirement could include, a change to a monitoring or testing method that is within the scope of the method and does not adversely impact the accuracy or precision of the method (e.g., increasing sample volume above the minimum required by the method in order to ensure an adequate detection limit is achieved.) There is a presumption of no public interest in these types of SIP revisions because the changes described here are “de minimis” and should not adversely affect compliance with the primary NAAQS.

3. Changes categorized as “administrative amendments” under MPCA's operating permit rules—MPCA included, as Exhibit 2, the portion of the Minnesota Rules that define “administrative amendments.” Minn. R. 7077.1400, subp. 1, as reproduced below, defines the term “administrative amendments” as including the following actions:

• An amendment to correct a typographical error;
• An amendment to change the name, mailing address, or telephone number of any person identified in the permit, or that reflects a similar minor administrative change at the permitted facility. A change in the stationary source's location of operation is not covered by this item;
• An amendment requiring the permittee to comply with additional, more frequent, or expanded, testing, monitoring, recordkeeping, or reporting requirements;
• An amendment to eliminate monitoring, recordkeeping, or reporting requirements if: (1) The requirements are rendered meaningless because the only emissions to which the requirements apply will no longer occur; (2) the change is to eliminate one validated reference test method for a pollutant and source category in order to add another; (3) the requirements are redundant to or less strict than other existing requirements; (4) the requirements are technically incorrect and their elimination does not affect the accuracy of the data generated or of the monitoring information recorded or reported; or, (5) the piece of equipment to which the monitoring, record keeping, or reporting requirement applies no longer exists or has been permanently disabled from use at the stationary source.
• An amendment reflecting a change in ownership or operational control of a stationary source where the agency determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the agency;
• An amendment to incorporate into a permit the requirements from preconstruction review permits issued by the agency, incorporate into a permit the requirements from standards adopted under Code of Federal Regulations, title 40, part 63, as amended (National Emission Standards for Hazardous Air Pollutants for Source Categories), or to lower the plantwide emission limits in permits with Plantwide Applicability Limits to reflect the impact of standards adopted under Code of Federal Regulations, title 40, part 63, as amended;
• An amendment to clarify the meaning of a permit term;
• An amendment to extend a deadline in a permit by no more than 120 days, provided that the agency may only extend a deadline established by an applicable requirement described in part 7007.0100, subpart 7, items A to K, if the agency has been delegated authority to make such extensions by the administrator. Notwithstanding the previous sentence, the agency may do an administrative amendment to extend a testing deadline in a permit up to 365 days if the agency finds that the extension is needed to allow the permittee to test at worst case conditions as required by part 7017.2025, subpart 2;
• An amendment to remove any condition from a permit which was based on an applicable requirement that has been repealed, but only if the permit condition: (1) Is neither required nor replaced by another applicable requirement; and, (2) was not established for a specific facility to protect human health and the environment, to prevent pollution, as a mitigation measure in an environmental impact statement, or to obtain a negative declaration in an environmental assessment worksheet;
• An amendment to correct or update a citation to an applicable requirement where the corresponding permit condition is not changed; and,
• An amendment to include operating conditions that ensure that waste combustors emit mercury at less than 50 percent of the applicable standard.

These “administrative amendments” either do not substantively change the SIP or they actually strengthen the SIP (e.g., require more frequent testing, reporting or recordkeeping) and are not expected to generate public interest.

4. Unit or plant permanently shut down—In this case, all SIP conditions have become obsolete because the unit or facility no longer exists and these SIP conditions no longer apply. We agree that if the unit or facility no longer exists, an automatic public hearing is not necessary to remove those SIP conditions that no longer apply.

5. Non-controversial update to an existing maintenance plan—This would be a “technical change” (e.g., 10-year update to a maintenance plan) with no substantive compliance or inventory changes.

6. Incorporation of federal rule by reference into state rule—In these cases, the federal rules have already been through public notice and comment. Also, the state's incorporation by reference is likely to be in response to a Federal Register noticed delegation or a memorandum of agreement that dictates that MPCA must incorporate the rule in order to administer the federal program.

7. Rulemaking where a state public hearing has been offered but no one was interested—For some rulemakings, MPCA will hold non-mandatory meetings to discuss the merits of the rulemaking and to invite comment on draft or proposed rule language when ready. At the commencement of every rulemaking, state law requires MPCA to publish a Notice of Request for Comments (the State Register is currently published online only). This occurs before a rule has been drafted and is intended to inform potentially interested persons of the likely subject matter of the rule that the MPCA is considering. The Notice is published in the State Register (which is available only via the Internet), posted on the MPCA's website and physically mailed to all persons that have previously requested to be kept informed of such proposals. The Notice does not specify meeting dates but invites public participation generally.

During the public participation process, requests for a state public hearing (different than a SIP public hearing) can be made. If any request for a state public hearing is made, then MPCA has committed to hold a public hearing on the SIP because public interest has been expressed. However, if no requests for a state public hearing are made or if such requests are withdrawn, then a SIP public hearing will only be held if requested.

B. Equivalent Hearing to a Public Hearing

In these instances, a public hearing that would meet the criteria in 40 CFR 51.102(d)-(f) for a SIP public hearing [see the discussion on the use of electronic notification of rulmakings and public hearing in section II.C. of this notice] has already been held as part of the procedure for some other MPCA action. Minnesota has requested that we approve this process under 40 CFR 51.102(g) as equivalent to the public hearing requirement in 40 CFR 51.102. In the past, the state has held separate SIP public hearings to satisfy the requirements of the Clean Air Act, specifically noting that the materials available for the public to comment on would be submitted for inclusion in the SIP. MPCA has noted that in the future if a state public hearing will be held, MPCA will include language in rule proposal notices that specifies which rule changes will be submitted to EPA as a SIP revision. If this is done, the state public hearing would also serve as the SIP public hearing.

C. Table Summarizing Proposed Alternative Public Hearing Processes

Below is a table summarizing the hearing procedures for SIP submittals for the state of Minnesota under this new process.

Summary Table of SIP Types

Category	Public participation on process
(1) Purely administrative—e.g., correction of typographical or grammatical error	Opportunity to request hearing.
(2) De minimis change to a “secondary” compliance requirement. “Secondary” means that the requirement supports a primary requirement NAAQS related restriction such as an emission limit or fuel usage limit	Opportunity to request hearing.
(3) Changes categorized as “administrative amendments” under MPCA's operating permit rules (see Exhibit 2; Minn. R. 7007.1400) and see 40 CFR § 70.7(d)(3))	Opportunity to request hearing.
(4) Unit or plant permanently shut down—all SIP conditions have become obsolete (e.g., Continental Nitrogen—no longer operates the boilers that were the only regulated units in its Admin Order)	Opportunity to request hearing.
(5) Addition or modification of emission unit to facility with SIP conditions with no overall increase in emissions. [Amendment of a Permit or Administrative Order that is part of SIP]	Mandatory SIP hearing.
(6) Addition or modification of emission unit to facility with SIP conditions with overall increase in emissions. [Involves amendment of a Permit or Administrative Order that is part of SIP]	Mandatory SIP hearing.
(7a) Non-controversial update to an existing maintenance plan that is a “technical change;” or 10-year update to maintenance plan with no substantive compliance or inventory changes	Opportunity to request hearing.
(7b) Update to an existing maintenance plan that changes the compliance scheme, including 10-year update with compliance or inventory changes. Also any update that involves a known controversy	Mandatory SIP hearing.
(8) Redesignation requests	Mandatory SIP hearing.
(9) New Plans (e.g., PM2.5, Ozone, Regional Haze)	Mandatory SIP hearing.
(10a) Rulemaking that has been the subject of a formal state public hearing. Minnesota will include language in rule proposal notices that specifies which rule changes will be submitted to EPA as a SIP revision. [Formal public hearing before an ALJ—Minn. Stat. § 14.14]	State hearing would serve as the SIP public hearing.
(10b) Rulemaking where non-mandatory stakeholder meetings are convened and the MPCA receives no requests for a formal public hearing on the proposed rule (or receives requests but all requests are withdrawn in a timely manner)	Opportunity to request hearing.
(10c) Rulemaking where non-mandatory stakeholder meetings are convened and the MPCA receives one or more requests for a formal public hearing on the proposed rule (and if requests withdrawn, not done so in time for cancellation of the public hearing)	Mandatory SIP hearing.
(10d) Rulemaking where stakeholder meetings were not held or where meetings were too informal or selective. If the rule is potentially of interest in the SIP context but for some reason the type of meeting in 11(b) was not held, a SIP-specific meeting should be held. This might occur if response to the rulemaking was minimal but the rule is part of a larger SIP plan and in that context may have special significance to a specific state action	Mandatory SIP hearing.
(11) Incorporation of federal rule by reference into state rule	Opportunity to request hearing.

D. Use of Internet Notification of Upcoming Rulemakings and Public Hearings Versus Using Newspapers

EPA is particularly interested in your opinion on the use of electronic notification, via the internet, of rulemakings and public hearings. 40 CFR 51.102(d)-(f) describe the specific requirements states must meet in conducting public hearings for SIP submittals. However, 40 CFR 51.102(g) provides that alternative procedures may be approved provided they still ensure adequate public notification and public participation. The following provisions of 40 CFR 51.102(d) may be impacted by the use of electronic notice:

(d) Any hearing required by paragraph (a) of this section will be held only after reasonable notice, which will be considered to include, at least 30 days prior to the date of such hearing(s):

(1) Notice given to the public by prominent advertisement in the area affected announcing the date(s), time(s), and place(s) of such hearing(s);

(2) Availability of each proposed plan or revision for public inspection in at least one location in each region to which it will apply, and the availability of each compliance schedule for public inspection in at least one location in the region in which the affected source is located.

Currently, the MPCA does not use printed media to inform the general public of upcoming rulemakings or public hearings. This is different from the more common and accepted practice of states publishing notices in newspapers, or other widely available printed media, in the area affected by the rulemaking. In the past, the MPCA would use the newspaper and the State Register as a means of publishing such public notices. MPCA has discontinued using newspaper notices and, as of July 1, 2004, the Minnesota State Register is no longer printed in a hardcopy format and can only be accessed on the internet. The Minnesota State Register does offer an additional tailored subscription service but there is a $180 annual fee associated with this service. Access to the Minnesota State Register is otherwise free assuming a person already has access to the internet.

At the beginning of the rulemaking process, MPCA will publish a Notice of Request for Comments in the Minnesota State Register which is only available online. At this point in time, a rule or rule language has not yet been drafted and the Notice of Request for Comments serves to inform potentially interested parties of the likely subject matter of the rule that MPCA is considering. This notice also appears on the MPCA's website and notification is also mailed to those parties that have expressed interest in rulemakings of this type. This initial notice helps generate a more extensive list of interested parties than the MPCA may already have. In many cases the MPCA will invite these parties to meetings to discuss the merits of MPCA's rulemaking and to comment on draft or proposed rule language when ready.

In past practice, the MPCA would have published these notices in the Minnesota State Register when it was in print and the Minnesota State Register was available at any public library. Copies of draft or proposed rule language would be available at MPCA offices.

It is MPCA's current practice to then publish a Notice of Intent to Adopt online in the State Register. It is at this point the rule, as well as a detailed statement of basis, is now made available on the MPCA's Web site for public review and comment.

The argument can be made that, because our society is now highly computerized, making all of these documents available electronically is as accessible to the public, if not more so, than it was in the past when these documents were actually printed. For example, in the past if someone was interested in environmental rules he or she could go to the library to read the State Register. Now that same person can go to the same library and access the State Register online to view the same type of information once carried in the printed version of the Minnesota State Register. Since the use of home computers and access to the internet is widespread, a person can now access the Minnesota State Register from home whether they live in Minnesota or not.

We would like your comments on whether electronic notification of upcoming rulemakings and public hearings is an acceptable alternative to printed notice which ensures public notice and participation. It is important for us to hear your comments now as we will consider all of them before rendering a final decision on this matter and we will not be reproposing on this in the future.

E. Summary

In summary, we are proposing to approve under 40 CFR 51.102(g) MPCA's request to allow the above-identified types of SIP revisions to forego automatic public hearings. Instead the public would be offered the opportunity to request a public hearing on these SIP revisions. Approval of this alternative public participation process is allowed under the Code of Federal Regulations Title 40 Part 51 at 51.102(g). We believe that the requirements found in 40 CFR 51.102(g) have been met. Sections 110(a)(2) and 110(l) of the Clean Air Act require public hearings on all SIP revisions before they are submitted to the EPA. We believe that the process that MPCA has submitted for approval preserves the opportunity for the public to request the same public hearing and does not curtail the public participation process. Additionally, where MPCA provides a state public hearing that meets the requirements of 51.102(d)-(f), including effective electronic notice [see the discussion on the use of electronic notification of rulemakings and public hearing in section II. C. of this notice], and notifies the public that the rule changes will be submitted as a SIP revision, then such process is consistent with 40 CFR 51.102 and can be approved under 40 CFR 51.102(g). We are also soliciting specific comments on the use of electronic notice of MPCA rulemakings and hearings. Public comments on the use of electronic notice of hearings and rulemakings may impact the EPA's approval of the proposed alternative public hearing processes.

III. Statutory and Executive Order Reviews.

Executive Order 12866; Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, September 30, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.

Paperwork Reduction Act

This proposed 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.).

Regulatory Flexibility Act

This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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.).

Unfunded Mandates Reform Act

Because this rule proposes to approve 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).

Executive Order 13132 Federalism

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 proposes to approve 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.

Executive Order 13175 Consultation and Coordination With Indian Tribal Governments

This proposed 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).

Executive Order 13045 Protection of Children From Environmental Health and Safety Risks

This proposed 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.

Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” 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).

National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impractical. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Clean Air Act. Therefore, the requirements of section 12(d) of the NTTA do not apply.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Intergovernmental relations

Dated: January 19, 2006.

Bharat Mathur,

Acting Regional Administrator, Region 5.