Approval and Promulgation of State Implementation Plan; Minnesota; Evidentiary Rule

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MN40-03-6988; FRL-5906-3]

Approval and Promulgation of State Implementation Plan;

Minnesota; Evidentiary Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final action approves the State Implementation Plan (SIP)

revision submitted by the State of Minnesota. The State's revision

clarifies the types of testing and monitoring data, including stack and

process monitoring data, that can be used directly for compliance

certifications and enforcement.

EFFECTIVE DATE: This final rule is effective November 13, 1997.

ADDRESSES: Copies of the documents relevant to this action are

available forpublic inspection during normal business hours at the

following location:U.S. Environmental Protection Agency, Region 5,

Regulation Development Branch, 77 West Jackson Boulevard, Chicago,

Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Regulation

Development Section 2, Air Programs Branch (AR-18J), U.S. Environmental

Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago,

Illinois 60604. Telephone: (312) 353-6960.

SUPPLEMENTARY INFORMATION:

I. Background

In 1990, section 114 of the Clean Air Act (Act) was amended to

require the Administrator of EPA to promulgate rules implementing an

enhanced monitoring and compliance program for major stationary sources

of air pollution. EPA determined that certain SIPs may preclude EPA and

the States from implementing such a program because these SIPs may be

interpreted to limit the types of testing and monitoring data

[[Page 53240]]

that may be used for determining compliance and establishing

violations. Therefore, EPA issued a SIP call to those States whose SIPs

may have limited the types of testing and monitoring data that may be

used for determining compliance and establishing violations.

On March 24, 1994, EPA issued a SIP call to the State of Minnesota

to revise its SIP. As part of the SIP call, EPA provided draft SIP

language to the State. The SIP call clarified that any monitoring

approved for the source (and included in a federally enforceable

operating permit) may form the basis of the compliance certification,

and that any credible evidence may be used for purposes of enforcement

in Federal court.

On April 9, 1997, EPA published a direct final rulemaking approving

the Minnesota Pollution Control Agency's (MPCA's) SIP revision that was

made in response to EPA's SIP call. During the 30 day public comment

period, adverse comments were received from the Minnesota Chamber of

Commerce, the American Petroleum Institute and the National

Environmental Development Association.

II. Public Comment/EPA Response

The following evaluation summarizes each comment received and EPA's

response to the comment.

Minnesota Chamber of Commerce Comments

Following is a summary of comments received from the Minnesota

Chamber of Commerce in a letter dated May 9, 1997 signed by Sherry

Munyon. After each comment is EPA's response.

Comment 1: EPA's final ``credible evidence'' rule clearly removes

any reference to ``presumptively credible'' forms of evidence and

properly leaves questions of legal admissibility and credibility to

judicial and administrative tribunals (62 FR 8316 February 24, 1997).

Therefore, it appears that EPA is set to approve a SIP revision

containing a rule based on an interpretation to which it no longer

subscribes.

Response 1: In writing its rule, the MPCA did not feel that it had

the authority to create presumptively credible evidence, since the MPCA

did not feel it had the authority to create judicial ``presumptions.''

Therefore, the MPCA simply stated that violations may be based on any

required monitoring method or any credible evidence. In doing this, the

MPCA clarifies that its own rules cannot be used to limit a court's

consideration of any credible evidence of a violation of a MPCA

standard. This does not create judicial presumptions, nor does it

conflict with EPA's final Credible Evidence rule.

Comment 2: If MPCA's rule is incorporated into the SIP, sources

would then face two different standards regarding the admissibility and

credibility of evidence.

Response 2: The EPA believes, contrary to the commentor, that

approving this SIP revision actually enhances consistency rather than

creating inconsistency. Since the rule submitted for Federal

approvability is already adopted at the State level, approving it into

the SIP would mean that both State and Federal authorities would be

enforcing the same provisions.

American Petroleum Institute Comments

Following is a summary of comments received from the American

Petroleum Institute in a letter dated May 8, 1997 signed by John E.

Reese. After each comment is EPA's response.

Comment 1: Because sections 7007.0800 Subpart 6.C.(5) and 7017.0100

Subparts 1 and 2 of the Minnesota regulations were based on EPA's

premature March 24, 1994 SIP call, the Minnesota regulations are not

consistent with the current status of EPA's Enhanced Monitoring

rulemaking. For example, section 7007.0800 Subpart 6.C.(5) makes

reference to ``an enhanced monitoring protocol'' even though in 1995

EPA abandoned the Enhanced Monitoring approach in favor of the

Compliance Assurance Monitoring (CAM) approach. Thus, the reference to

``Enhanced Monitoring'' in the Minnesota regulations is likely to cause

confusion, and should be revised.

Response 1: By stating that the Minnesota rule, made in response to

EPA's March 24, 1994 SIP call, is inconsistent with the current status

of EPA's Enhanced Monitoring Rule, the commentor makes the argument

that EPA's SIP call is inconsistent with the current status of EPA's

Enhanced Monitoring Rule. This is not the case. In the EPA's final

Credible Evidence Revisions rule, EPA has stated that:

EPA's decision to forego the enhanced monitoring approach in favor

of the CAM proposal has no effect on the basic goals of the SIP

call, which are to clarify that non-reference test data can be used

in enforcement actions, and to remove any potential ambiguity

regarding this data's use for Title V compliance certifications (62

FR 8314, p. 8327).

While the commentor is correct in pointing out that MPCA's SIP

revision does include language in section 7007.0800 Subpart 6.C.5 that

makes reference to ``an enhanced monitoring protocol,'' EPA does not

believe that any confusion will arise from the language found in

Minnesota's rule. The section that contains the reference to the

enhanced monitoring protocol does not limit the additional methods that

can be used to demonstrate compliance with, or violation of, a standard

to only an enhanced monitoring protocol. Also included are, ``any other

monitoring method incorporated into a permit issued under this

chapter.'' If only the language pertaining to ``an enhanced monitoring

protocol'' were included as a revision to the language found in MPCA's,

a SIP revision might be warranted. However, because there is additional

language that does not limit using other methods as well, no conflict

or confusion will arise from mentioning an enhanced monitoring

protocol.

Comment 2: EPA's SIP call is invalid. Neither section 110 or any

other provision of the Clean Air Act requires States to include

credible evidence provisions in their SIPs. Even if one accepts EPA's

assertion in the recently promulgated Credible Evidence Rule, 62 FR

8314 (February 24, 1997), that sections 113(a), 113(e), and 114 of the

Clean Air Act authorize EPA to use any Credible Evidence to establish

violations of emissions standards and limitations, those provisions

speak only to the Administrator, and the courts, not to the States.

Response 2: EPA's SIP call is valid. The purpose of the SIP call is

to clarify that non-reference test data can be used in enforcement

actions, and to remove any potential ambiguity regarding this data's

use for Title V compliance certifications. In responding to the SIP

call the MPCA submitted to EPA rule revisions that ensured that the

Minnesota SIP does not preclude the use, including the exclusive use,

of any credible evidence or information, relevant to whether a source

would have been in compliance with applicable requirements if the

appropriate performance or compliance test or procedures had been

performed. This is all that is required to be consistent with EPA's

final Credible Evidence rule.

Comment 3: The reference to ``Minnesota Statutes'' is incorrect,

the correct reference is to ``Minnesota Rules.''

Response 3: EPA recognizes that the codification from the direct

final Federal Register rule published on April 9, 1997 did incorrectly

reference ``Minnesota Statutes.'' The new codification correctly

references ``Minnesota Rules.''

[[Page 53241]]

National Environmental Development Association Comments

Following is a summary of comments received from the National

Environmental Development Association in a letter dated May 9, 1997

signed by Leslie Sue Ritts. After each comment is EPA's response.

Comment 1: EPA cannot and should not approve State SIP revisions

during the pendency of judicial review of EPA's credible evidence rule.

Response 1: The commentor assumes that if EPA's Credible Evidence

rule is found to be illegal, it follows that Minnesota's rule is also

illegal and cannot be approved. This is not necessarily the case. If

EPA's rule is found to be illegal, EPA may not be able to require

Minnesota to follow the requirements of the SIP call but EPA can still

approve Minnesota's SIP revision. States can submit, and EPA can

approve, SIP revisions that exceed Federal requirements at any point in

time. If it is found that EPA's Credible Evidence rule is found to be

illegal, this does not prevent EPA from approving MPCA's SIP revision.

Comment 2: The National Environmental Development Association

believes that the current rule should be withdrawn because Minnesota's

rule is clearly based on a version of the enhanced monitoring proposal

and an EPA ``model rule'' that were withdrawn by EPA in April 1995.

References to ``presumptive'' credible evidence in the Federal Register

notice, while also not clear on the face of the Minnesota regulations,

are also plainly inconsistent with the notion in the final Federal

credible evidence rule that all monitoring evidence, whatever its

origin, would be weighed by a trier of fact and to provisions in the

EPA credible rule that condition the use of credible evidence as

``relevant to whether a source would have been in compliance with

applicable requirements if the appropriate performance or compliance

test or procedure had been performed.'' In addition, references in the

Federal Register notice to Federal ``enhanced monitoring protocols''

and ``model rules'' are obsolete. These will eventually be replaced by

Federal requirements for ``compliance assurance monitoring'' plans

under the pending CAM rule which the Federal agency is about to

finalize.

Response 2: The MPCA did not base its rule on EPA's model rule. In

writing its rule, the MPCA did not feel that it had the authority to

create presumptively credible evidence, since the MPCA did not feel it

had the authority to create judicial ``presumptions.'' Therefore, the

MPCA simply stated that violations may be based on any required

monitoring method or any credible evidence. In doing this, the MPCA

clarifies that its own rules cannot be used to limit a court's

consideration of any credible evidence of a violation of a MPCA

standard. This does not create judicial presumptions, nor does it

conflict with EPA's final Credible Evidence rule.

III. Final Action

The comments received were found to warrant no changes from

proposed to final action on the approval of Minnesota's Evidentiary

Rule. Therefore, EPA is approving the Evidentiary Rule submitted by the

MPCA for inclusion in the State's SIP. The approval of this submittal

into the SIP clarifies the types of testing and monitoring data that

can be used for compliance demonstrations and enforcement.

Nothing in this action should be construed as permitting, 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.

IV. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995, memorandum from Mary D. Nichols, Assistant Administrator

for Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from Executive Order 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

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, EPA 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.

This approval does not create any new requirements, but simply

approves requirements that the State is already imposing. Therefore,

because the Federal SIP approval does not impose any new requirements,

the Administrator certifies 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 flexibility

analysis would constitute Federal inquiry into the economic

reasonableness of the State action. The Act forbids EPA to base its

actions concerning state plans on such grounds. Union Electric Co. v.

EPA., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates Act

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must undertake various actions

in association with any proposed or final rule that includes a Federal

mandate that may result in estimated costs to state, local, or tribal

governments in the aggregate; or to the private sector, of $100 million

or more. This Federal action approves pre-existing requirements under

State or local law. No new Federal requirements are imposed.

Accordingly, no additional costs to state, local, or tribal

governments, or the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a major rule as defined by 5 U.S.C.

804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by December 15, 1997. 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)).

[[Page 53242]]

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

Dated: September 16, 1997.

David A. Ullrich,

Acting Regional Administrator.

Part 52, chapter I, title 40 of the Code of Federal Regulations 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.

Subpart Y--Minnesota

2. Section 52.1220 is amended by adding paragraph (c)(44) to read

as follows:

Sec. 52.1220 Identification of plan.

* * * * *

(c) * * *

(44) This revision provides for data which have been collected

under the enhanced monitoring and operating permit programs to be used

for compliance certifications and enforcement actions.

(i) Incorporation by reference.

(A) Minnesota Rules, sections 7007.0800 Subpart 6.C.(5), 7017.0100

Subparts 1 and 2, both effective February 28, 1995.

* * * * *

[FR Doc. 97-27129 Filed 10-10-97; 8:45 am]

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