02-11734. Approval and Promulgation of Implementation Plans; Minnesota

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

We are approving a revision to the Minnesota State Implementation Plan (SIP) which updates Minnesota's performance test rule in the SIP. The Minnesota Pollution Control Agency (MPCA) submitted the proposed revision to EPA on December 16, 1998. The proposed revisions set out the procedures for facilities that are required to conduct performance tests to demonstrate compliance with their emission limits and/or operating requirements. 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 July 12, 2002, unless EPA receives adverse comment by June 12, 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.)

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?

3. What is the background for this action?

II. Review of State Implementation Plan Revision

1. Why did the State submit this SIP Revision?

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

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 SIP a revision to the SIP that MPCA submitted on December 16, 1998 which updates the Minnesota performance test rule. The Minnesota performance test rule was originally approved into the SIP on May 6, 1982 (47 FR 19520). Specifically, EPA is approving into the SIP Minnesota Rules 7017.2001 through 2060, removing from the SIP Minn. R. 7017.2000, and amending in the SIP Minn. R. 7011.0010, 7011.0105, 7011.0510, 7011.0515, 7011.0610, 7011.0710, 7011.0805, 7011.1305, 7011.1405, and 7011.1410.

2. Why Is EPA Taking this Action?

EPA is taking this action because the state's submittal, which revises the performance test rule SIP, is fully approvable. The revisions made by MPCA to the performance test rule since 1976 vastly improve the performance testing requirements found in the Minnesota SIP. The 1976 rule, which is currently enforceable by EPA in the SIP (Minn. R. 70 17.2000), lacks many of the requirements now specifically set forth in the revised state rules.

EPA reviewed the SIP revision request for completeness based on the completeness requirements contained in Title 40 of the Code of Federal Regulations, Part 51, Appendix V. The EPA determined that the submittal is complete, and notified the State of Minnesota in a March 23, 1999 letter from Richard C. Karl, EPA, to Karen Studders, MPCA. The state has adequately addressed EPA's concerns, as discussed below, and the performance test SIP revision satisfies the applicable requirements of the Act. A more detailed explanation of how the state's submittal meets these requirements is in EPA's June 19, 2001 Technical Support Document (TSD).

3. What Is the Background for This Action?

A. Original Performance Test Rule SIP Submittal

Minnesota promulgated the original performance test rules in 1976 as Air Pollution Control 21 (APC 21). APC 21 was submitted to EPA in 1980 as part of Minnesota's Total Suspended Particulate Matter control plan and was incorporated into the SIP on May 6, 1982 (47 FR 19520). The state recodified APC 21 to Minn. R. 7005.1860 in 1983, and yet again to Minn. R. 7017.2000 in 1993. The state made only minor changes to the performance test rule between 1976 and 1993. MPCA initiated major additions to the performance test rule in 1993 as described below.

B. 1993 Rulemaking Changes to the Performance Test Rule

The MPCA revised the performance test rule in 1993 for the following reasons: (1) The need to clarify and consolidate the state's performance test requirements; (2) the increase in the number of regulated pollutants and the increase in available test methods for performance testing; and (3) the need to use a definition of “PM10” that is consistent with the federal definition. On December 6, 1993, the state repealed the 1976 performance test rule, Minn. R. 7017.2000, and the 1993 performance test rule, Minn. R. 7017.2001-2060, became effective.

EPA reviewed and commented on the rule during its development and had identified several issues that required resolution before the rule could be approved into the SIP. EPA and MPCA staff participated in numerous discussions subsequent to the rulemaking to resolve these issues. EPA formally provided MPCA with its final comments by letter dated May 9, 1997. EPA's primary concerns with the 1993 version of the performance test rule were that certain provisions in the regulations could unintentionally impede enforcement, and that provisions addressing malfunction, startup and shutdown were less stringent than the federal New Source Performance Standards (NSPS).

II. Review of State Implementation Plan Revision

1. Why Did the State Submit This SIP Revision?

MPCA initiated its latest revision to the performance test rule to address EPA's May 9, 1997 comments. As previously stated, in 1993 the state repealed the 1976 version of the performance test rule, which is currently in the Minnesota SIP.

In a June 25, 1997 letter to EPA, MPCA staff responded to EPA's May 9, 1997 comments with additional revisions to the rule. Due to filing errors, MPCA placed the performance test rule on public notice twice, from July 28 to August 27, 1997 and from April 20 to May 20, 1998 before rulemaking was completed on the final rule.

Because over a year had passed between MPCA's June 25, 1997 response to EPA's May 9, 1997 comments and the completion of formal rulemaking, MPCA re-responded to EPA's comments which it included in their December 16, 1998 SIP submittal.

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

In order to resolve those issues that EPA identified as impediments to SIP approval, MPCA made the following revisions to its performance test rule. MPCA revised language in the performance test rule to reference the use of credible evidence where a test does not meet the administrative and technical requirements of the rule, and incorporated NSPS language to make the revised rule's provisions regarding malfunction, startup and shutdown equally stringent to the federal requirements. MPCA also incorporated a number of relatively minor language changes to help clarify the intent of the rule. Additional changes to the performance test rule were based on MPCA's review and experience since the state adopted the rule in December 1993, and the streamlining of certain administrative procedures. EPA has reviewed both the 1997 and 1998 response documents submitted by MPCA and has found that the state has adequately addressed EPA's concerns.

The State has requested that EPA approve the following: (1) The removal of Minn. R. 7017.2000 from the SIP, since this rule was repealed by the state in 1993; (2) the inclusion of the revised performance test rule, Minn. R. 7019.2001-2060, into the SIP; and (3) the inclusion into the SIP of updates to small portions of the opacity rules and other related rules identified while amending the performance test rule. Listed below are some of the changes made by the state to strengthen the performance test rule since it was incorporated into the SIP in 1976.

Definitions (7017.2005). A detailed set of definitions for the terms used in the performance test provisions was added to enhance the clarity and enforceability of the requirements.

Federal Testing Requirements and Test Methods (7017.2010, 7017.2015, and 7017.2050). The amended rule requires compliance with current EPA test methods. Because the rule incorporates by reference federal test methods and any future amendments or versions of those methods, the SIP will automatically require compliance with the latest EPA requirements (including testing requirements set forth in NSPS and NESHAPS).

Pretest Requirements (7017.2030). Substantial pretest requirements have been added, including a requirement to submit a detailed test plan and to meet with MPCA personnel prior to testing.

Testing Procedures and Quality Assurance (7017.2045 7017.2060). Incorporates new language regarding testing procedures and quality assurance.

Operational Requirements and Limitations (7017.2025). Establishes enforceable operating limitations based on tested conditions to better ensure that the compliance shown during testing is actually maintained during day-to-day operations.

Reporting and Certification Requirements (7017.2035, 7017.2040). Prescribes detailed reporting requirements, including what information must be in the test report, and specific requirements for responsible persons to certify the sampling, analysis, and reporting of the test results.

Consequences for Failing a Test (7017.2025, subparts 4 and 5). Lays out specific retesting requirements and a standard requirement to shut down units failing a retest except in certain circumstances.

Credible Evidence (7017.2020, subpart 6). Ensures that no person can mistakenly assume that the performance test requirements in any way undermine the ability to use any credible evidence to establish a violation.

Changes to Opacity Averaging Times in Performance Standards (7011). Changes the averaging times of all opacity limit excursion levels to six-minute intervals, and proportionately lowers the excursion limit. This results in an opacity standard that is essentially equivalent and consistent with EPA Method 9 and therefore makes the excursion limits more enforceable.

III. Final Rulemaking Action

EPA is approving into the Minnesota SIP revisions to the Minnesota performance test rule. The Minnesota performance test rule was originally approved into the SIP on May 6, 1982 (47 FR 19520). Specifically, EPA is approving into the SIP Minnesota Rules 7017.2001 through 2060, and amending the following rules currently in the SIP with amendments adopted by the state on July 13, 1998: Minn. R. 7011.0010, 7011.0105, 7011.0510, 7011.0515, 7011.0610, 7011.0710, 7011.0805, 7011.1305, 7011.1405, and 7011.1410. In addition, EPA is removing Minn. R. 7017.2000 from the SIP, since this rule was repealed by the state in 1993. As described above, MPCA has addressed the issues identified by EPA and the performance test rule revision is therefore fully approvable.

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 July 12, 2002 without further notice unless we receive relevant adverse comments by June 12, 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 July 12, 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 (Public Law 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. EPA will submit 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 United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 July 12, 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
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

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)(58) to read as follows:

§ 52.1220

Identification of plan.

* * * * *

(c) * * *

(58) On December 16, 1998, the State submitted an update to the Minnesota performance test rule, which sets out the procedures for facilities that are required to conduct performance tests to demonstrate compliance with their emission limits and/or operating requirements. In addition, EPA is removing from the state SIP Minnesota Rule 7017.2000 previously approved as APC 21 in paragraph (c)(20) and amended in paragraph (c)(40) of this section.

(i) Incorporation by reference.

(A) Amendments to Minnesota Rules 7011.0010, 7011.0105, 7011.0510, 7011.0515, 7011.0610, 7011.0710, 7011.0805, 7011.1305, 7011.1405, 7011.1410, 7017.2001, 7017.2005, 7017.2015, 7017.2018, 7017.2020, 7017.2025, 7017.2030, 7017.2035, 7017.2045, 7017.2050 and 2060, published in the Minnesota State Register April 20, 1998, and adopted by the state on July 13, 1998.