02-17241. Designation of Areas for Air Quality Planning Purposes; Deletion of Total Suspended Particulate Designations in Minnesota

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

In this action EPA is deleting Minnesota attainment status designations (attainment, unclassifiable and nonattainment) affected by the original national ambient air quality standards (NAAQS) for particulate matter measured as total suspended particulate (TSP). On June 3, 1993 EPA published a final rulemaking action revising the prevention of significant deterioration (PSD) particulate matter increments, so that the increments are measured in terms of particulate matter with an aerodynamic diameter less than 10 microns (PM). Section 107(d)(4)(B) of the Clean Air Act (Act) authorizes EPA to eliminate all area TSP designations once the increments for PM become effective. The June 3, 1993 document, which became effective on June 3, 1994, also established the method by which EPA deletes such TSP designations.

DATES:

This “direct final” rule is effective September 9, 2002, unless EPA receives written adverse or critical comments by August 9, 2002. If adverse comments are received, EPA will publish a timely withdrawl of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Send written comments to Carlton T. Nash, Chief, Regulation Development Section, Air Programs Branch (AR-18J), United Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. (We recommend that you telephone Christos Panos, at [phone], before visiting the Region 5 Office.)

A copy of this redesignation is available for inspection at the Office of Air and Radiation (OAR) Docket and Information Center (Air Docket 6102), United States Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, N.W., Washington, D.C. 20460, [phone].

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

This Supplementary Information section is organized as follows:

A. What Action Is EPA Taking?

B. What Is the Background for This Action?

C. Why Is This Action Approvable?

A. What Action Is EPA Taking?

We are deleting from the list of area designations in 40 CFR part 81, all of the designations for TSP in the state of Minnesota (§ 81.324). Area designations which indicate the attainment status of each affected area with respect to the PM NAAQS already exist, and the TSP area designations are no longer needed.

B. What Is the Background for This Action?

In 1971, EPA promulgated primary and secondary NAAQS for particulate matter to be measured as TSP. Section 107(d) of the 1977 Amendments to the Act authorized each State to submit to the Administrator a list identifying the attainment status designations (attainment, unclassifiable and nonattainment) for TSP areas in the state. In 1978, EPA published the original list of all area designations pursuant to section 107(d)(2) (commonly referred to as “section 107 areas”), including those designations for TSP, in 40 CFR part 81.

One of the purposes stated in the Act for the section 107 areas is for implementation of the statutory requirements of air quality PSD. The PSD provisions of part C of the Act generally apply in all section 107 areas that are designated attainment or unclassifiable (40 CFR 52.21(i)(3)). Under the PSD program, States must ensure that emissions from major stationary sources are controlled sufficiently by applying the best available control technology. Also, it must be shown that such controlled emissions from the new or modified source will not cause or contribute to air pollution that violates the NAAQS. Moreover, the air quality in an attainment or unclassifiable area is not allowed to deteriorate beyond prescribed maximum allowable increases in pollutant concentrations, referred to as “increments.”

On July 1, 1987 (52 FR 242634), EPA revised the particulate matter NAAQS, replacing the TSP indicator with the PM indicator. On the same date, EPA promulgated final regulations under 40 CFR part 51 for State implementation of the revised NAAQS (52 FR 24672). In the preamble to that action, EPA announced that, because of the importance of the section 107 area designations to the applicability of the TSP increments, it would retain the TSP designations beyond the date on which EPA approves a State's revised PM State Implementation Plan (SIP). This would protect the applicability of the TSP increments until a PM increment system could be established.

The 1990 Amendments to the Act contained several pertinent provisions relating to or affecting the TSP area designations. Under section 107(d)(4)(B) of the amended Act, Congress established by operation of law the first nonattainment area designations for PM, and mandated that areas not initially defined as nonattainment are considered to be unclassifiable. Moreover, section 107(d)(4)(B) provided that any designation for particulate matter (measured in terms of TSP) that the Administrator promulgated prior to the date of enactment of the 1990 Amendments shall remain in effect for purposes of implementing the maximum allowable concentrations of particulate matter (measured in terms of TSP) increments until the Administrator determines that such designation is no longer necessary for that purpose.

C. Why Is This Action Approvable?

On June 3, 1993 (58 FR 31622), under the authority of section 166(f) of the Act, EPA published the final rulemaking replacing the TSP increments with equivalent PM increments. As a result, the PSD increments and NAAQS will be measured by the same indicator. As stated at 58 FR 31635, for States already having delegated authority to implement the Federal PSD regulations “EPA will eliminate the TSP designations when the PM increments become effective under § 52.21 on June 3, 1994.” The EPA has delegated to the state of Minnesota the authority to implement the PSD program. The delegation agreement provides for automatic adoption of the revised PM increments once the increments become effective.

Final Action

Because TSP designations are no longer necessary, as described above, and the PSD regulations contained in 40 CFR 52.21 (the Federal PSD program) govern the review and approval of permits to construct and operate major stationary sources in Minnesota, EPA is taking action to delete all TSP area designations in the state of Minnesota.

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 September 9, 2002 without further notice unless we receive relevant adverse written comments by August 9, 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. We will then address all public comments received 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 September 9, 2002.

Administrative Requirements

Under Executive Order 12866, “Regulatory Planning and Review” (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 nor does it 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, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it will 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, “Federalism” (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 a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTA), 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 impracticable. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the 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 SIP submission that otherwise satisfies the provisions of the Act. Therefore, the requirements of section 12(d) of the NTTA do not apply.

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order, and has determined that the rule's requirements do not constitute a taking. 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 September 9, 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 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

Dated: June 26, 2002.

Norman Niedergang,

Acting Regional Administrator, Region 5.

Accordingly, 40 CFR part 81 is amended as follows:

PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

1. The authority citation for part 81 continues to read as follows:

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

§ 81.324

[Amended]

2. In § 81.324 Minnesota, delete the table (including the title line) entitled “Minnesota—TSP”.