[Federal Register Volume 59, Number 81 (Thursday, April 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10110]
[Federal Register: April 28, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MN13-2-6359; FRL-4863-8]
Approval And Promulgation of Implementation Plans; Minnesota
AGENCY: U.S. Environmental Protection Agency (USEPA).
ACTION: Final rule.
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SUMMARY: USEPA is approving a revision to the Minnesota State
Implementation Plan (SIP) for new source review in nonattainment areas,
as proposed on February 23, 1994. This revision was submitted to meet
longstanding requirements as well as new requirements imposed by the
Clean Air Act Amendments of 1990. This revision consists of the State
Rules 7005.3010 through 7005.3060, which incorporate by reference the
new source review requirements specified in appendix S to 40 CFR part
51, ``Emission Offset Interpretive Ruling,'' except for the deletion of
unacceptable exemptions included in appendix S. This approval lifts the
prior ban on permitting major sources and major modifications in
Minnesota nonattainment areas.
EFFECTIVE DATE: This final rule is effective May 31, 1994.
ADDRESSES: A copy of this revision to the Minnesota SIP and other
materials relating to this rulemaking are available for inspection at
the following address: (It is recommended that you telephone John
Summerhays at (312) 886-6067 before visiting the Region 5 Office.)
United States Environmental Protection Agency, Region 5, Air and
Radiation Division, 77 West Jackson Boulevard (AE-17J), Chicago,
Illinois 60604.
A copy of this revision to the Minnesota SIP is available for
inspection at the following address:
Office of Air and Radiation (OAR), Docket and Information Center,
(Air Docket 6102), room M1500, United States Environmental Protection
Agency, 401 M Street, SW., Washington, D.C. 20460, (202) 260-7548.
FOR FURTHER INFORMATION CONTACT: John Summerhays, Regulation
Development Section, Air Enforcement Branch (AE-17J), U.S.
Environmental Protection Agency, Region 5, Chicago, Illinois 60604,
(312) 886-6067.
SUPPLEMENTARY INFORMATION:
I. Notice of Proposed Rulemaking
On February 23, 1994, at 59 FR 8578, USEPA proposed to approve
Minnesota new source review regulations submitted on August 5, 1992,
and August 26, 1993. These submittals were intended to satisfy both the
requirements predating the Clean Air Act Amendments of 1990 and the new
requirements those amendments impose. The discussion that follows
summarizes the notice of proposed rulemaking. Since no comments were
received on this proposal, USEPA is today making final its approval of
these new source review submittals and removing the ban on construction
of major new sources and major modifications in Minnesota nonattainment
areas.
The statutory requirements that apply to State regulations for new
source review in nonattainment areas are set forth at part D of title I
of the Clean Air Act, particularly in sections 172(c)(5) and 173.
Federal regulations developed prior to enactment of the Clean Air Act
Amendments of 1990 for nonattainment area new source review programs
are set forth at title 40 Code of Federal Regulations, part 51 (40 CFR
part 51), particularly 40 CFR 51.165. The Clean Air Act Amendments of
1990 also establish assorted new requirements, for which preliminary
guidance was published April 16, 1992 (57 FR 13498), and April 28, 1992
(57 FR 18070). For example, section 189(a)(1)(A) requires that permit
programs satisfying sections 172(c)(5) and 173 be submitted for fine
particulate matter nonattainment areas.
The notice of proposed rulemaking provided a summarized history of
Minnesota new source review submittals. None of these submittals
satisfied the specific requirements for permitting new and modified
major sources in nonattainment areas, and so Minnesota became subject
to a prohibition against permitting major new sources and major
modifications in the State's nonattainment areas, as promulgated by
USEPA on July 2, 1979 (44 FR 38583).
Section 173 of the Act identifies four essential requirements that
State new source permit regulations must impose in nonattainment areas:
(1) New source emissions must be offset by equivalent or greater
emission reductions in the area;
(2) The new source must have the lowest achievable emission rate
(LAER);
(3) Other sources in the same State owned by the owner or operator
of the new source must be in compliance or on a schedule to achieve
compliance with applicable regulations; and
(4) The area must not be subject to a finding of failure to
implement the SIP.
The submittals being addressed in this rulemaking include State
Rules 7005.3010 through 7005.3060 (``Offset Rule''). These rules
incorporate appendix S to 40 CFR part 51 into these State rules,
modified in response to recommendations by USEPA. In general, adoption
of appendix S of 40 CFR part 51 into the State's regulations serves to
impose the requirements identified in section 173. Part IV. A. of
appendix S provides multiple conditions for granting a permit,
including a requirement for lowest achievable emission rates
(requirement 2 above), a requirement for compliance of commonly owned
sources (requirement 3 above), and a requirement for offsets
(requirement 1 above). Although appendix S contains no provision
prohibiting permits in ``failure to implement'' areas, USEPA has
adequate authority under section 113(a)(5) to take any necessary action
to address permits that violate this prohibition.
The adoption of appendix S by reference as a State rule fails to
satisfy some permitting requirements under subpart I of 40 CFR part 51.
In particular, appendix S exempts certain source types and is
insufficiently clear on some issues. In accordance with a letter from
USEPA dated May 17, 1991, Minnesota made various recommended rule
revisions which provide that the relevant appendix S exemptions do not
apply in Minnesota. USEPA today finds this modified program to satisfy
the requirements of 40 CFR part 51.
As discussed in the notice of proposed rulemaking, USEPA has also
reviewed whether the requirements enacted as part of the Clean Air Act
Amendments of 1990 have been satisfied. As proposed, USEPA is today
concluding that the Offset Rule, in conjunction with previously
approved permitting rules, satisfies these new requirements.
Minnesota also adopted significant revisions to its regulations on
permit processing on August 24, 1993, which it submitted for SIP
rulemaking on November 23, 1993. The primary purposes of these
regulations were to satisfy requirements in title V of the Clean Air
Act for a State operating permit program and to amend the new source
permitting regulations to provide an integrated set of permitting
regulations. In developing these regulations, the State incorporated
language intended to address various issues USEPA had identified with
respect to the prior permitting rules. These issues are discussed in
more detail in the notice of proposed rulemaking, and include concerns
about permit expiration, variances, and outdated references in the
Memorandum of Understanding on public comment procedures.1 USEPA
is not taking rulemaking action today on the submittal of November 23,
1993. Nevertheless, USEPA finds that the issues discussed in the notice
of proposed rulemaking are no longer of concern, in general because the
revised State rules prevent the relevant problems from arising.
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\1\Upon further review, USEPA finds that a concern as to
satisfaction of 40 CFR 51.160(a) was misfounded. This provision,
which requires assurance that new sources will not interfere with
attainment or maintenance of the air quality standards, was found to
be satisfied in 1988 rulemaking on Statewide permitting regulations.
(See 53 FR 17033.)
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As noted in the proposed rulemaking, USEPA is currently developing
a rule to implement the changes under the Clean Air Act Amendments of
1990 in the new source review provisions in parts C and D of title I of
the Act. The Agency anticipates that the final rule will be promulgated
sometime during 1995. Upon promulgation of this final rule, USEPA will
review new source review SIPs to determine whether additional SIP
revisions are necessary to satisfy the requirements of the rule.
On February 15, 1994, at 59 FR 7218, USEPA concluded that
particulate matter precursors do not contribute significantly to
violations of the particulate matter standard in Minnesota. Therefore,
under section 189(e), new source review for particulate matter
precursors is not required in Minnesota's particulate matter
nonattainment areas.
II. This Action
USEPA received no comments on its proposal to approve Minnesota's
nonattainment area permitting regulations. Consequently, USEPA
continues to believe that the regulations submitted by Minnesota on
August 5, 1992, and August 26, 1993, satisfy the requirements under
part D for a new source permitting program in nonattainment areas, and
is approving this SIP revision.
Under the approved rules, permits for nonattainment area sources
that satisfy the substantive requirements of the Offset Rule (Rules
7005.3010 through 7005.3060) would be processed in accordance with
permit processing provisions in the Consolidated Permit Rules (Rules
7001.0010 through 7001.0210 and Rules 7001.1200 through 7001.1220). On
May 13, 1988 (53 FR 17033), USEPA approved the Consolidated Permit Rule
as satisfying attainment area permitting requirements but noted that
nonattainment area permitting requirements were not met. Today's action
finds the nonattainment area permitting requirements met, removes the
ban on construction of major new sources and major modifications in
Minnesota nonattainment areas, and imposes Minnesota's Consolidated
Permit Rule and Offset Rule as federally enforceable requirements for
such new sources and modifications. Subsequent rulemaking will address
the approvability of the State permitting regulations submitted
November 23, 1993.
The rules submitted by Minnesota were intended to address
nonattainment area new source review requirements and did not address
visibility-related permitting requirements specified in 40 CFR 51.307.
Therefore, USEPA is retaining the provisions of 40 CFR 52.1236, which
note the absence of approvable State regulations for visibility
protection and impose the federally promulgated regulations of 40 CFR
52.26 and 52.28.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
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, USEPA 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.
SIP approvals under section 110 and subchapter I, part D of the Act
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, I certify 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 regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Act forbids USEPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (1976); 42 U.S.C.
7410(a)(2).
Nothing in this action should be construed as permitting or
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.
This action makes final the action proposed at 59 FR 8578. As noted
elsewhere in this document, USEPA received no adverse public comment on
the proposed action. As a result, the Regional Administrator has
classified this action as a Table Three action under the processing
procedures established at 54 FR 2214, January 19, 1989, based on
revised SIP processing review tables approved by the Acting Assistant
Administrator for Air and Radiation on October 4, 1993 (Michael
Shapiro's memorandum to Regional Administrators). On January 6, 1989,
the Office of Management and Budget (OMB) waived Table Two and Three
SIP revisions (54 FR 2222) from the requirements of section 6 of
Executive Order 12866 for a period of 2 years. OMB has agreed to
continue the temporary waiver until such time as it rules on USEPA's
request. This request continued in effect under Executive Order 12866,
which superseded Executive Order 12291 on September 30, 1993.
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 June 27, 1994. 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
dioxide.
Note: Incorporation by reference of the State Implementation
Plan for the State of Minnesota was approved by the Director of the
Federal Register on July 1, 1982.
Dated: April 5, 1994.
Valdas V. Adamkus,
Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations, is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart Y--[Amended]
2. Section 52.1220 is amended by adding paragraph (c)(33) to read
as follows:
Sec. 52.1220 Identification of plan.
* * * * *
(c) * * *
(33) On August 5, 1992, and August 26, 1993, the State of Minnesota
submitted its ``Offset Rules'' as revisions to its State Implementation
Plan (SIP) for new source review in nonattainment areas.
(i) Incorporation by reference.
(A) Rules 7005.3020, 7005.3030, and 7005.3040, and 7005.3050, with
amendments effective August 24, 1992.
(B) Amendments to Rule 7005.3040, effective June 28, 1993.
(ii) Additional materials.
(A) A letter from Charles Williams to Valdas Adamkus dated August
5, 1992, with attachments.
(B) A letter from Charles Williams to Valdas Adamkus dated August
26, 1993, with attachments.
3. Section 52.1225 is amended by adding paragraph (a) to read as
follows:
Sec. 52.1225 Review of new sources and modifications.
(a) Part D--Approval. The State of Minnesota has satisfied the
requirements of sections 173 and 189(a)(1)(A) for permitting of major
new sources and modifications in nonattainment areas.
* * * * *
[FR Doc. 94-10110 Filed 4-26-94; 8:45 am]
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