Approval And Promulgation of Implementation Plans; Minnesota

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.

-----------------------------------------------------------------------

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.

---------------------------------------------------------------------------

\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.)

---------------------------------------------------------------------------

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]

BILLING CODE 6560-50-F