Approval and Promulgation of Implementation Plans; Minnesota

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MN30-1-6215a; FRL-5183-8]

Approval and Promulgation of Implementation Plans; Minnesota

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: Minnesota submitted a revision intended to simplify and update

the rules in its State Implementation Plan (SIP). These revisions

included deleting regulations that are redundant with Federal New

Source Performance Standards (NSPS) regulations, removing odor

regulations and other similar regulations from the SIP, and recodifying

the regulations. In the case of open burning, the State requested

removal of the regulations from the SIP or, in the alternative,

replacing these regulations with statutes that regulate open burning.

USEPA is replacing the open burning regulations in the SIP with the new

statutes and is approving all other revisions requested by the State.

EFFECTIVE DATE: This action will be effective July 24, 1995 unless

adverse or critical comments are received by June 23, 1995. If the

effective date is delayed, timely notice will be published in the

Federal Register.

ADDRESSES: Written comments should be addressed to: William L.

MacDowell, Chief, Regulation Development Section, Air Enforcement

Branch (AE-17J), United States Environmental Protection Agency, 77 West

Jackson Boulevard, Chicago, Illinois 60604.

Copies of the SIP revision request and U.S. EPA's analysis are

available for public inspection during normal business hours at the

following addresses: United States Environmental Protection Agency,

Region 5, Air and Radiation Division, 77 West Jackson Boulevard (AE-

17J), Chicago, Illinois 60604; and Jerry Kurtzweg (6102), United States

Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460.

FOR FURTHER INFORMATION CONTACT: John Summerhays, Air Enforcement

Branch, Regulation Development Section (AE-17J), United States

Environmental Protection, Region 5, Chicago, Illinois 60604, (312) 886-

6067.

SUPPLEMENTARY INFORMATION:

I. Review of State Submittal

On November 23, 1993, the Minnesota Pollution Control Agency (MPCA)

submitted a request to (1) eliminate a number of regulations that need

not be included in the Minnesota State Implementation Plan (SIP), (2)

recodify the remaining regulations, and (3) make miscellaneous other

changes. Each of these types of revisions are discussed in separate

sections below.

Elimination of Regulations

MPCA recommended elimination of several categories of regulations

from the SIP. The category with the most regulations recommended for

elimination are regulations that repeat the requirements for new

sources established by the United States Environmental Protection

Agency (USEPA) in various New Source Performance Standards (NSPS). Some

of these regulations also govern emissions from ``existing sources,''

i.e. sources that existed before the effective date of or otherwise not

subject to a relevant NSPS. Most of these regulations were submitted in

1981. In its 1982 rulemaking on these regulations, USEPA approved these

regulations only for ``existing sources,'' reflecting concern that

these regulations would either be unnecessary by virtue of being

redundant with Federal NSPS or be detrimental by virtue of causing

uncertainty as to which of conflicting State versus Federal provisions

apply. In this context, ``existing sources'' should be considered not

only to include sources that existed prior to the effective date of the

NSPS but also to include sources that are newer but are not subject to

the NSPS due to size or other reasons.

Minnesota's submittal refines the list of rules which, by USEPA's

approach, should be removed from the SIP or applied only to ``existing

sources.'' In the cases of regulations for portland cement plants,

asphalt concrete plants, grain elevators, sulfuric acid plants, and

nitric acid plants, the State has specified which portions of the

relevant sets of rules regulate new sources and which portions regulate

existing sources. In the cases of regulations for lead smelters and

brass and bronze plants, there are no existing brass or bronze plants

and the only existing lead smelter is subject to a separate more

stringent administrative order in the SIP. Therefore, the regulations

apply only to new sources and should be eliminated from the SIP in

their entirety. In the cases of regulations for incinerators and sewage

sludge incinerators, MPCA does not identify portions of the rules that

only apply to new sources but comments that USEPA should state that the

SIP only includes these rules as they apply to existing sources (which

again may include newly constructed sources that are not subject to

NSPS). USEPA concurs with Minnesota's list of which of these rules

should be removed from the SIP, and is modifying the SIP accordingly.

A second set of regulations recommended for elimination concern

odors and acid/base fallout. MPCA's submittal states that these

regulations were not intended for purposes of achieving air quality

standards or other Clean Air Act purposes and remain unnecessary for

such purposes. Specifically, Minnesota requests on this basis that

USEPA delete the set of regulations entitled Ambient Odor Control, the

set entitled Limits for Animal Matter Odors, and the set entitled

Limits on Acid, Base Emissions. These regulations were adopted around

1970 and were submitted and approved as part of a package that included

all extant air pollution regulations. USEPA concurs with Minnesota's

request and is removing these regulations from the SIP.

A third set of regulations recommended for elimination concern

indirect sources. These regulations establish permitting requirements

for the facilities such as highways, shopping malls, and airports that

attract motor vehicles and thus indirectly cause mobile source

emissions. These regulations were submitted in 1981 and approved by

USEPA in 1982. [[Page 27412]] Nevertheless, section 110(a)(5)(A)(iii)

of the Clean Air Act (added in 1977) states that ``Any State may * * *

suspend or revoke any [indirect source review program], provided the

[implementation plan] meets the requirements of [section 110].''

Minnesota is maintaining these regulations as State enforceable

requirements, and will continue to implement indirect source review,

but the State is seeking to remove these regulations from the federally

enforceable SIP. The SIP has been found to meet the requirements of

Section 110, and so the criteria in section 110(a)(5)(A)(iii) for

removal of the indirect source regulations from Minnesota's SIP have

been satisfied. Consequently, USEPA is removing these regulations from

the SIP.

A final set of regulations recommended for elimination concern open

burning. MPCA explained that the Minnesota Legislature rescinded these

air pollution regulations and incorporated similar restrictions into

legislation administered by the Minnesota Department of Natural

Resources (DNR). MPCA argued that particulate matter emitted from open

burning was not found to be significant in the State's development of

plans to address the nonattainment areas, and argued that these

regulations may be considered to be nuisance regulations rather than

particulate matter regulations. Nevertheless, MPCA's submittal states

``If the EPA does not approve the MPCA's request to remove the open

burning program from the SIP, then the MPCA requests that the

applicable portions of [the current statute that addresses open

burning] be incorporated as part of Minnesota's SIP * * *.''

Minnesota's open burning regulations generally prohibit open

burning of leaves and other vegetative material, with exemptions for

campfires and cooking and exemptions for certain types of burning which

may be conducted upon receipt of a permit. Open burning causes

emissions most notably of particulate matter and also of carbon

monoxide, hydrocarbons, and air toxicants. MPCA has not attempted to

analyze the ambient impact of eliminating these restrictions. Available

evidence is limited but suggests that the impacts of open burning can

be significant. Therefore, absent evidence to the contrary, USEPA finds

that open burning should be retained as part of the Minnesota SIP.

USEPA further finds that the alternative of revising the SIP by

replacing the old regulations with the new statute is fully

appropriate. The statute provides essentially the same or better air

quality benefits insofar as it provides for more effective

administration of similar restrictions. This alternative would remove

the open burning program from ``MPCA's regulatory program,'' as

requested by MPCA. (This portion of the SIP would be administered by

the Minnesota DNR.) Although Minnesota planned in any case to continue

the open burning restrictions in force, this alternative would retain

these restrictions as part of the Federal SIP, thereby retaining

Federal authority to object should the State subsequently wish to end

the restrictions. Therefore, USEPA is approving Minnesota's alternative

of replacing MPCA regulations with State statutes.

Recodification

MPCA requested that USEPA renumber the rules in the SIP to be

consistent with the State's current numbering system. This renumbering

itself would not change any of the substance of the requirements

included in these rules. USEPA approves this renumbering, to make the

SIP consistent with current State rule numbering.

Other Revisions

The most significant other revisions requested by MPCA concern the

definitions given in Rule 7005.0100. All of the definitions requested

by MPCA are acceptable. However, rulemaking on these revisions is

complicated by the interrelationship with other rulemakings on Rule

7005.0100. In USEPA's rulemaking on a prior recodification request

(published March 23, 1993, at 58 FR 15433), USEPA chose not to approve

post-1985 revisions to Rule 7005.0100 due to their significance to

permitting rules which were still under review. Recent rulemaking on a

subsequent set of permitting rules approved selected revisions to this

rule. Consequently, this submittal includes only a small number of

definitions that differ from definitions that have already been

approved. Nevertheless, for convenience, USEPA is approving the full

set of definitions in Rule 7005.0100 as submitted by MPCA. (Note that

Subpart 25a, defining ``National Emissions Standards for Hazardous Air

Pollutant,'' was excluded from MPCA's submittal and is therefore

excluded from the approved SIP.)

A further significant revision included in MPCA's recodification

submittal is an enhancement of requirements for sources to report

emissions. (These provisions do not address the requirements in amended

section 114 of the Clean Air Act for enhanced compliance monitoring.)

USEPA approves this revision, which would replace Rule 7005.1870 (4)

with Rules 7019.3000 and 7019.3010.

Rulemaking Action

USEPA is making various revisions in accordance with Minnesota's

request. USEPA is recodifying the SIP to reflect the new Minnesota rule

numbering. In addition, this action (1) replaces the open burning

regulations with the current statutory provisions (rather than removing

the restrictions altogether), (2) modifies the delineation of new

source limits that are excluded from the SIP, (3) removes the odor

regulations and indirect source regulations from the SIP, (4)

incorporates the enhanced emission reporting regulations, and (5) makes

various other minor revisions requested by MPCA. The codification of

this rulemaking delineates the revised SIP. The specific regulations

that are revised by this action are discussed in detail in the

technical support document for this rulemaking.

This action is being taken without prior proposal because the

changes are believed to be noncontroversial and USEPA anticipates no

significant comments on them. This action will be effective July 24,

1995 unless adverse or critical comments are received by June 23, 1995.

Nothing in this action should be construed as permitting, allowing

or establishing a precedent for any future request for revision to any

SIP. USEPA 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.

This action has been classified as a Table 3 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993

memorandum from Michael H. Shapiro, Acting Assistant Administrator for

Air and Radiation. The OMB has exempted this regulatory action from

Executive Order 12866 review.

Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 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.

Secs. 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 CAA

do not create any new requirements, but [[Page 27413]] 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 CAA, preparation of a regulatory flexibility analysis would

constitute Federal inquiry into the economic reasonableness of State

action. The CAA forbids USEPA to base its actions concerning SIPs on

such grounds. Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (S.Ct.

1976); 42 U.S.C. section 7410(a)(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 [60 days from the date of

publication]. 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,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, New source review, Nitrogen dioxide, Ozone, Particulate matter,

Sulfur oxides, Volatile organic compounds.

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: March 20, 1995.

David A. Ullrich,

Acting Regional Administrator.

Title 40 of the Code of Federal Regulations, chapter I, part 52, 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.

2. Section 52.1220 is amended by adding paragraph (c)(40) to read

as follows:

Sec. 52.1220 Identification of plan.

* * * * *

(c) * * *

(40) On November 23, 1993, the State of Minnesota requested

recodification of the regulations in its State Implementation Plan,

requested removal of various regulations, and submitted recodified

regulations containing minor revisions.

(i) Incorporation by reference.

(A) Minnesota regulations in Chapters 7005, 7007, 7009, 7011, 7017,

7019, and 7023, effective October 18, 1993.

(B) Submitted portions of Minnesota Statutes Sections 17.135,

88.01, 88.02, 88.03, 88.16, 88.17, and 88.171, effective 1993.

3. Section 52.1222 is revised to read as follows:

Sec. 52.1222 EPA-approved Minnesota State regulations.

The following table identifies the State regulations submitted to

and approved by EPA as revisions to the Minnesota State Implementation

Plan (SIP). This table is for informational purposes only and does not

have any independent regulatory effect. This table also does not

include administrative orders that have been approved into the SIP. To

determine regulatory requirements for a specific situation consult the

plan identified in Sec. 52.1220. To the extent that this table

conflicts with Sec. 52.1220, Sec. 52.1220 governs.

Table 52.1222.--EPA Approved Regulations

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Effective Relevant para.s in Sec.

Rule description Minnesota rule numbers Contents of SIP date 52.1220 \1\

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Definitions and 7005.0100-.0110....... Full rules except 10/18/93 b,c20,c40.

Abbreviations. def'n of NESHAP.

Air Emission Permits.. 7007.0050-.1850....... Full rules........... 8/10/93 b,c3,c5, c24,c26,c39.

Offsets............... 7007.4000-.4030....... Full rules........... 10/18/93 c33.

Ambient Air Quality 7009.0010-.0080....... All except 7009.0030 10/18/93 b,c3,c26.

Standards. and 7009.0040.

Air Pollution Episodes 7009.1000-.1110....... Full rules........... 10/18/93 c1,c21.

Applicability......... 7011.0010, .0020...... Full rules........... 10/18/93 b,c20

Opacity............... 7011.0100-.0120....... All except 7011.0120. 10/18/93 b,c3,c20.

Fugitive Particulate.. 7011.0150............. Full rules........... 10/18/93 b.

Indirect Heating 7011.0500-.0550....... Full rules........... 10/18/93 b,c3,c20,c21

Equipment.

Direct Heating 7011.0600-.0620....... Full rules........... 10/18/93 c20,c21.

Equipment.

Industrial Process 7011.0700-.0735....... Full rules........... 10/18/93 b,c20

Equipment.

Portland Cement Plants 7011.0800-.0825....... All except 7011.0810. 10/18/93 c20,c40.

Asphalt Concrete 7011.0900-.0920....... All except 7011.0910. 10/18/93 c20,c40.

Plants.

Grain Elevators....... 7011.1000-.1015....... All except 10/18/93 c20,c25,c40.

7011.1005(2).

Coal Handling 7011.1100-.1140....... All except 7011.1130. 10/18/93 c21.

Facilities.

Incinerators.......... 7011.1201-.1207....... All rules for 10/18/93 b,c20,c40.

``existing sources''

\2\.

Sewage Sludge 7011.1300-.1325....... All rules for 10/18/93 c20,c40

Incinerators. ``existing sources''.

Petroleum Refineries.. 7011.1400-.1430....... All rules for 10/18/93 c20,c21.

``existing sources''.

Liquid Petroleum and 7011.1500-.1515....... All rules for 10/18/93 b,c21.

VOC Storage Vessels. ``existing sources''.

Sulfuric Acid Plants.. 7011.1600-.1630....... All except 7011.1610. 10/18/93 b,c3,c21,c40

Nitric Acid Plants.... 7011.1700-.1725....... All except 7011.1710. 10/18/93 b,c3,c21,c40.

Inorganic Fibrous 7011.2100-.2105....... All rules............ 10/18/93 c20.

Materials.

Stationary Internal 7011.2300............. Entire rule.......... 10/18/93 b,c21.

Combustion Engine.

CEMS.................. 7017.1000............. Entire Rule.......... 10/18/93 c20.

Performance Tests..... 7017.2000............. Entire Rule.......... 10/18/93 c20.

Notifications......... 7019.1000............. Entire Rule.......... 10/18/93 c20.

Reports............... 7019.2000............. Entire Rule.......... 10/18/93 c20.

Emission Inventory.... 7019.3000, .3010...... All rules............ 10/18/93 c20,c40.

[[Page 27414]]

Motor Vehicles........ 7023.0100-.0120....... All rules............ 10/18/93 b,c21.

Open Burning.......... Portions of Chapter 17 All submitted 1993 b,c21,c26, c40.

and 88 of MN Statutes. portions of Sections

17.135, 88.01,

88.02, 88.03, 88.16,

88.17, and 88.171.

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\1\ Recodifications affect essentially all rules but are shown only for substantively revised rules.

\2\ ``Existing'' sources are sources other than those subject to a new source performance standard.

[FR Doc. 95-12619 Filed 5-23-95; 8:45 am]

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