[Federal Register Volume 62, Number 68 (Wednesday, April 9, 1997)]
[Rules and Regulations]
[Pages 17081-17083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8969]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MN40-01-6988a; FRL-5694-4]
Approval and Promulgation of State Implementation Plan;
Minnesota; Enhanced Monitoring
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This final action approves the State Implementation Plan (SIP)
submitted by the State of Minnesota. The State's revision expands the
types of testing and monitoring data, including stack and process
monitoring, which can be used directly for compliance certifications
and enforcement.
DATES: This ``direct final'' rule is effective June 9, 1997 unless
Environmental Protection Agency (EPA) receives adverse or critical
comments by May 9, 1997. If the effective date is delayed, timely
notice will be published in the Federal Register.
ADDRESSES: Copies of the documents relevant to this action are
available at the above address for public inspection during normal
business hours.
Comments may be mailed to: Carlton T. Nash, United States
Environmental Protection Agency, Region 5, Air and Radiation Division,
Air Programs Branch (AR-18J), 77 West Jackson Boulevard, Chicago,
Illinois, 60604.
FOR FURTHER INFORMATION CONTACT: Brad J. Beeson at (312) 353-4779.
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 the SIPs may be
interpeted to limit the types of testing and monitoring data 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.
II. State Submittal
On March 14, 1995, the Minnesota Pollution Control Agency (MPCA)
made an official plan submission in response to the EPA's SIP call. The
submittal included the State's public notice requesting comments or a
public hearing on the proposed rule changes. No public comments were
received nor was there a request for a public hearing.
The submittal also included Minnesota Statute Secs. 7007.0800
Subpart 6 and 7017.0100 Subpart 1 and 2. These rules were amended to
comply with the new enhanced monitoring requirements.
III. Analysis of State Submittal
The model rule provided by the EPA consisted of two parts. The
first part of the model rule concerned compliance certification, while
the second part concerns enforcement.
[[Page 17082]]
A. Compliance Certifications
EPA's model rule concerning compliance certification provides that
for the purpose of submission of compliance certifications the owner or
operator is not prohibited from using an enhanced monitoring protocol
approved for the source pursuant to 40 CFR Part 64, or any other
monitoring method approved for the source pursuant to 40 CFR 70.6(a)(3)
and incorporated into a federally enforceable operating permit.
The amended rules submitted by MPCA clearly meet the requirements
established in EPA's model rule. Subpart 6 of Sec. 7007.0800 refers not
only to the Federal SIP, but to all ``applicable requirements,'' which
would include all MPCA rules that regulate emission permit sources. All
Federal SIP provisions are by definition included with ``applicable
requirements,'' in Subpart 7, Sec. 7007.0100.
Similarily Subpart 6 of Sec. 7007.0800 will cover not only all
Federally enforceable permits, but also any monitoring method issued as
part of a State permit even if it is not federally enforceable.
B. Enforcement
EPA's suggested language concerning enforcement provides that ``any
credible evidence'' may be used for the purpose of establishing whether
a person has violated the applicable sections of the SIP. In addition,
EPA's model rule lists methods that are to be considered presumptively
credible evidence of whether a violation occurred at a source, as well
as which testing, monitoring or information gathering methods are
presumptively credible.
The amended rules submitted by MPCA clearly meet the requirements
established in EPA's model rule. The language added to Sec. 7017,
Subparts 1 and 2, gives evidentiary standing to essentially any
monitoring method which a source is required to use by either an
applicable requirement or a compliance document, and to any other
credible evidence. The definitions of applicable requirement and
compliance document are so broad as to include all the sources of
monitoring requirements listed in EPA's model rule.
C. Concluding Statement
In large part the State's rule follows the EPA's model rule. In
fact, the State only deviates from EPA's model rule by expanding its
coverage. Minnesota's amendments go beyond the scope of the model rule
to not just the specific situations that the EPA expressed concern
about, but also similar situations coming under the MPCA's
jurisdiction. Therefore, EPA believes this revision will enhance the
State's capability for determining compliance with, and for
establishing violations of, the underlying emission limitations.
IV. Action
The EPA is approving a revision to Minnesota's SIP. The revision
expands the types of testing and monitoring data, including stack and
process monitoring, which can be used directly for compliance
certifications and enforcement.
V. Administrative Requirements
A. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The EPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
B. 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 Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from E.O. 12866 review.
C. Regulatory Flexibility
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. Therefore, I
certify that this action 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 the regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The Act forbids EPA to base its
actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (1976).
D. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany 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. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated today
does not include a Federal mandate that may result in estimated costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector.
This Federal action approves pre-existing requirements under State
or local law, and imposes no new Federal requirements. Accordingly, no
additional costs to State, local, or tribal governments, or the private
sector, result from this action.
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 June 9, 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)).
F. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) of the APA amended 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
the Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2) of the APA as amended.
[[Page 17083]]
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: February 7, 1997.
Michelle D. Jordan,
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 Statutes, sections 7007.0800 Subpart 6.C.(5),
7017.0100 Subparts 1 and 2, both effective February 28, 1995.
[FR Doc. 97-8969 Filed 4-8-97; 8:45 am]
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