2010-5122. Approval and Promulgation of Air Quality Implementation Plans; Minnesota

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving a site-specific revision to the Minnesota State Implementation Plan (SIP) for particulate matter less than 10 microns (PM₁₀) for Aggregate Industries Yard A Facility in Saint Paul, Ramsey County, Minnesota. On May 19, 2009, the Minnesota Pollution Control Agency (MPCA) requested that EPA approve certain portions of a joint Title I/Title V document into the Minnesota PM₁₀ SIP for this facility. The State is also requesting in this submittal that EPA rescind the Administrative Order (AO) issued to J.L. Shiely Company which is currently included in Minnesota's SIP for PM₁₀. The emissions units previously owned by J.L. Shiely Company are now owned by Aggregate Industries. Because the PM₁₀ emission limits are being reduced, the air quality of Ramsey County will be protected.

DATES:

This direct final rule will be effective May 10, 2010, unless EPA receives adverse comments by April 12, 2010. If adverse comments are received, 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:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2009-0369, by one of the following methods:

1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail].

3. Fax: [phone].

4. Mail: Genevieve Damico, Acting Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

5. Hand Delivery: Genevieve Damico, Acting Chief, Criteria Pollutant Section, Air Programs Branch (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-2009-0369. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://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 http://www.regulations.gov or e-mail. The http://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 http://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.

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 http://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 Federal holidays. We recommend that you telephone Gilberto Alvarez, Environmental Scientist, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Gilberto Alvarez, Environmental Scientist, 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,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

I. General Information

1. What Is the Background for This Action?

2. Why Is EPA Taking This Action?

3. What Are Title I Conditions and Joint Title I/Title V Documents?

4. Has Public Notice Been Provided?

II. What Action Is EPA Taking?

III. Statutory and Executive Order Reviews

I. General Information

1. What Is the Background for This Action?

The Aggregate Industries Yard A Facility (facility) is located at 1177 Childs Road in Saint Paul, Ramsey County, Minnesota. The facility was previously owned and operated by J.L. Shiely Company and was found to be a culpable source in the Childs Road area's nonattainment of the PM₁₀ National Ambient Air Quality Standards (NAAQS). The facility is currently owned and operated by Aggregate Industries.

Minnesota originally submitted an AO for the facility as part of the PM₁₀ SIP in 1992. The AO was issued to the J.L. Shiely Company to place operating restrictions on the facility to control PM₁₀ emissions.

On April 23, 2009, the MPCA issued Air Permit no. 12300007-002 as a joint Title I/Title V document. The joint Title I/Title V document contains conditions identified as “Title I Conditions: SIP for PM_10.” These conditions contain all the applicable requirements for the source to ensure that the area will continue to maintain the NAAQS. MPCA requests that those conditions labeled “Title I Conditions: SIP for PM₁₀” in the Joint Title I/Title V document replace the AO as the SIP enforceable document.

2. Why Is EPA Taking This Action?

The SIP is being amended to reflect a change in ownership of the facility and the emissions units that are subject to SIP conditions. The facility is an aggregate distribution and storage facility. It receives aggregate by barge, uploads it, and conveys it to one of several storage piles based on size and material type. The aggregate is stored until it is loaded to trucks for off-site transport. The facility operates an aggregate heater that is used between November and April to reduce moisture content and make some materials more easily conveyed. The primary emissions from the facility are PM and PM₁₀ from the aggregate heater, as well as fugitive emissions from the stockpiles and unpaved roads. According to previous emissions calculations for this facility, the majority of PM₁₀ emissions were attributed to operation of the aggregate heater.

Aggregate Industries currently owns the emissions units that are subject to PM₁₀ emission limits or operating standards under the AO issued to J.L. Shiely Company. The AO was modified to show that the original aggregate heater, which burned fuel oil, has been replaced with a new heater, which burns natural gas. The previous emissions limits were up to 15.2 pounds/hour (lbs/hr) PM₁₀. However, with the replacement to the cleaner burning unit, those emissions are reduced by an order of magnitude to 0.119 lbs/hr, significantly lowering overall PM₁₀ emissions at this facility. Additional revisions to the SIP for units owned by Aggregate Industries include changes to requirements for storage piles to reflect actual operating conditions. Previously, the facility was not allowed to operate the product pile conveyors unless the free fall height from the conveyor to the product pile is less than 10 feet, to minimize fugitive dust, which represents a small portion of the overall PM₁₀ emissions for this facility. However, there are times when operating conditions do not allow the facility to consistently maintain the 10 foot free fall height, due to depletion of the product piles during winter months when supplies are limited by cold weather. Additional language ensures that the 10 foot fall height should be achieved as expeditiously as possible, and that the fall height cannot be greater than 10 feet for more than six hours. These requirements will ensure that the PM₁₀ NAAQS is maintained, while allowing the facility some flexibility in establishing new product piles.

Modeling performed in support of the original SIP for the facility attributed the majority of PM₁₀ emissions to the burning of residual fuel oil in the original heater. Since this type of fuel will no longer be burned, overall ambient concentrations of PM₁₀ will decrease, especially considering that the fugitive emissions from the conveyor operations contributed a much smaller proportion of PM₁₀ emissions.

3. What Are Title I Conditions and Joint Title I/Title V Documents?

SIP control measures were contained in permits issued to culpable sources in Minnesota until 1990 when EPA determined that limits in state-issued permits are not Federally-enforceable because the permits expire. MPCA then issued permanent AOs to culpable sources in nonattainment areas from 1991 to February of 1996.

MPCA's consolidated permitting regulations, which EPA approved into the SIP on May 2, 1995 (60 FR 21447), include the term “Title I condition” which was written, in part, to satisfy EPA's requirements that SIP control measures remain permanent. A “Title I condition” is defined as “any condition based on source-specific determination of ambient impacts imposed for the purposes of achieving or maintaining attainment with the national ambient air quality standard and which was part of the state implementation plan approved by EPA or submitted to the EPA pending approval under section 110 of the act * * *” The rule also states that “Title I conditions and the permittee's obligation to comply with them, shall not expire, regardless of the expiration of the other conditions of the permit.” Further, “any Title I condition shall remain in effect without regard to permit expiration or reissuance, and shall be restated in the reissued permit.”

MPCA has initiated using joint Title I/Title V documents as the enforceable document for imposing emission limitations and compliance requirements in SIPs. The SIP requirements in joint Title I/Title V documents submitted by MPCA are cited as “Title I conditions,” therefore ensuring that SIP requirements remain permanent and enforceable. EPA reviewed the State's procedure for using joint Title I/Title V documents to implement site-specific SIP requirements and found it to be acceptable under both Titles I and V of the Clean Air Act (CAA) (July 3, 1997 letter from David Kee, EPA, to Michael J. Sandusky, MPCA). Further, a June 15, 2006, letter from EPA to MPCA clarifies procedures to transfer requirements from AOs to joint Title I/Title V documents.

4. Has Public Notice Been Provided?

MPCA published a public notice on March 12, 2009, regarding the SIP revision and the Joint Title I/Title V document. No comments were received during the comment period which ended on April 20, 2009. In the public notice, MPCA stated it would hold a public hearing if one were requested during the comment period. This follows the alternative public participation process EPA approved on June 5, 2006 (71 FR 32274). For limited types of SIP revisions that the public has shown little interest in, a public hearing is not automatically required. If anyone requests a public hearing during the comment period, MPCA will hold a public hearing. Because no one requested a public hearing, MPCA did not hold a public hearing for these SIP revisions.

II. What Action Is EPA Taking?

EPA is approving a site-specific revision to the Minnesota PM₁₀ SIP for the Aggregate Industries Yard A Facility, located in the city of Saint Paul, Ramsey County, Minnesota. The SIP revision also rescinds the AO issued to J.L. Shiely Company and replaces it with Title I SIP Conditions included in the Air Emission Permit No. 12300007-002, for Aggregate Industries, which serves as a joint Title I/Title V document.

We are 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 written comments are filed. This rule will be effective May 10, 2010 without further notice unless we receive relevant adverse written comments by April 12, 2010. 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. 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 May 10, 2010.

III. Statutory and Executive Order Reviews.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 10, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements
• Sulfur oxides

Dated: February 25, 2010.

Walter W. Kovalick, Jr.,

Acting Regional Administrator, Region 5.

40 CFR 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 et seq.

Subpart Y—Minnesota

2. In § 52.1220 the table in paragraph (d) is amended by removing the entry for “J.L. Shiely Company” and adding an entry, in alphabetical order, for “Aggregate Industries” to read as follows:

§ 52.1220

Identification of plan.

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(d) * * *

EPA-Approved Minnesota Source-Specific Permits

Name of source	Permit No.	State effective date	EPA approval date	Comments
Aggregate Industries	12300007-002	04/03/09	03/11/10, [Insert page number where the document begins]	Only conditions cited as “Title I condition: SIP for PM10 NAAQS.”
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