[Federal Register Volume 65, Number 134 (Wednesday, July 12, 2000)]
[Rules and Regulations]
[Pages 42861-42863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17347]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MN65-01-7290a; FRL-6712-7]


Approval and Promulgation of State Implementation Plans; 
Minnesota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves a State Implementation Plan (SIP) 
revision for the State of Minnesota which was submitted on December 7, 
1999. This SIP revision is to remove an Administrative Order and 
replace it with a federally enforceable State operating permit for 
Commercial Asphalt's facility located on Red Rock Road in the city of 
St. Paul. The accompanying support documents for the Administrative 
Order, such as the air dispersion modeling, remain in the SIP as they 
are now.
    If EPA receives adverse comments on this action, we will publish a 
timely withdrawal of the direct final rule in the Federal Register 
informing the public that the rule will not take effect.

DATES: This rule will be effective September 11, 2000, unless EPA 
receives adverse or critical comments by August 11, 2000. If the rule 
is withdrawn, timely notice will be published in the Federal Register.

ADDRESSES: Send written comments to Carlton 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 (312) 353-8328 
before visiting the Region 5 Office.)
    A copy of these SIP revisions is available for inspection at this 
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, (202) 
260-7548.

FOR FURTHER INFORMATION CONTACT: Christos Panos, 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, (312) 353-8328.

SUPPLEMENTARY INFORMATION: This Supplementary Information section is 
organized as follows:


    A. What Action is EPA Taking?
    B. Why was this SIP Revision Submitted?
    C. What Changes will this Revision Create?
    D. What is a Federally Enforceable State Operating Permit and 
How does it Work?
    E. What is an Administrative Order?
    F. How are Administrative Orders Replaced by Federally 
Enforceable State Operating Permits?
    G. What is EPA's Final Determination?

A. What Action Is EPA Taking?

    In this action EPA is approving the revision to Minnesota's SIP to 
remove Commercial Asphalt's Administrative Order from the SIP and 
replace it with a federally enforceable State operating permit.

B. Why Was This SIP Revision Submitted?

    This action is intended to streamline the permitting process in 
Minnesota and, thereby, reduce the permitting burden both on sources 
within the State and on the Minnesota Pollution Control Agency (MPCA).

C. What Changes Will This Revision Create?

    The only thing changing in the SIP is the enforceable document from 
the Administrative Order to the federally enforceable State operating 
permit.

D. What Is a Federally Enforceable State Operating Permit and How 
Does It Work?

    On May 2, 1995, the MPCA's revised operating permit rule was 
approved by EPA as a federally enforceable State operating permit 
program (FESOP) (60 FR 21447). Two things make the process of allowing 
State permits to act as the enforceable documents containing SIP 
requirements possible in Minnesota.
    First, Minnesota's operating permit program requires all State 
permits, not only Title V permits, to contain all applicable 
requirements. Second, permits submitted as site-specific SIPS will have 
non-expiring SIP conditions (denoted as ``Title I conditions''). For 
Federal approvability, any State requirement that is submitted as a 
revision to the federally enforceable SIP must be non-expiring or 
permanent.
    EPA approved the use of the term ``Title I condition'' and its use 
as indicating that a condition will not expire even if the permit 
containing that condition expires. The use of the term, ``Title I 
condition'' in State operating permits or, subsequently, Title V 
permits, makes the requirements permanent, and allows Minnesota the use 
of State operating permits or Title V permits as vehicles for SIP 
conditions. The State defines ``Title I conditions'' as:

    ``Any condition based on a source specific determination of 
ambient impacts imposed for the purpose of achieving or maintaining 
attainment with the national ambient air quality standard and which 
was part of a SIP approved by EPA or submitted to EPA and pending 
approval under section 110 of the ACT.''

All SIP requirements in Commercial Asphalt's permit are cited as 
``Title I condition'' SIP for PM10.

E. What Is an Administrative Order?

    MPCA has and non-expiring Administrative Orders as the federally 
enforceable documents in nonattainment SIPs. An Administrative Order 
contains the emission limits, operating conditions, monitoring, 
recordkeeping, and reporting requirements that the source must meet in 
order for the area to attain and maintain the National Ambient Air 
Quality Standards.

F. How Are Administrative Orders Replaced by Federally Enforceable 
State Operating Permits?

    MPCA submitted its operating permit rules into the SIP so that 
permits issued pursuant to these rules could be considered federally 
enforceable documents for imposing emission limitations on culpable 
sources in nonattainment areas. Using permits replaces the MPCA's past 
practice of issuing an Administrative Order to such sources. EPA 
approved in concept the use of such permits in lieu of Administrative 
Orders, but noted that the permits and SIP submittals must be reviewed 
on a case-by-case basis.

G. What Is EPA's Final Determination?

    Based on the rationale set forth above and in EPA's Technical 
Support Document, we are approving the removal of Commercial Asphalt's 
Administrative Order from the SIP and its replacement with a federally 
enforceable State operating permit. The removal of the Administrative 
Order does not affect the integrity of this source's site-specific SIP 
as the remaining conditions, listed as ``Title I conditions'' in the 
State operating permit, contain the necessary emission limits, as well 
as the monitoring, recordkeeping, and reporting requirements to enforce 
those limits.
    EPA is publishing this action without prior proposal because EPA 
views this as a noncontroversial revision and anticipates no adverse 
comments. However, in a separate document in this Federal Register 
publication, EPA is proposing to approve the State Plan should adverse 
written comments be filed.

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    This action will be effective September 11, 2000 without further 
notice unless relevant adverse comments are received by August 11, 
2000. If EPA receives such comments, this action will be withdrawn 
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. The 
EPA will not institute a second comment period. Any parties interested 
in commenting on this action should do so at this time. If no such 
comments are received, the public is advised that this action will be 
effective September 11, 2000.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future implementation 
plan. Each request for revision to the State Implementation plan shall 
be considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13132

    Executive Order 13132, Federalism (64 FR 43255, August 10, 1999) 
revokes and replaces Executive Order 12612 (Federalism) and Executive 
Order 12875 (Enhancing the Intergovernmental Partnership). Executive 
Order 13132 requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    This final rule 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. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.

C. Executive Order 13045

    Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to 
any rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly affects or uniquely affects 
the communities of Indian tribal governments, and that imposes 
substantial direct compliance costs on those communities, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. If the mandate is 
unfunded, EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation.
    In addition, Executive Order 13084 requires EPA to develop an 
effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.'' Today's rule does not 
significantly or uniquely affect the communities of Indian tribal 
governments. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This final rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the Clean Air 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 create 
any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory

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requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    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. Section 804, however, exempts from section 801 the 
following types of rules: Rules of particular applicability; rules 
relating to agency management or personnel; and rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA 
is not required to submit a rule report regarding this action under 
section 801 because this is a rule of particular applicability.

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

I. Petitions for Judicial Review

    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 11, 2000. 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, Incorporation by 
reference, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compound.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: May 24, 2000.
Francis X. Lyons,
Regional Administrator, Region 5.

    Title 40 of Code of Federal Regulations, chapter I, 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. 7401-7671q.

    2. Section 52.1220 is amended by adding paragraph (c)(54) to read 
as follows:


Sec. 52.1220  Identification of plan.

* * * * *
    (c) * * *
    (54) On December 7, 1999, the State of Minnesota submitted to 
remove an Administrative Order and replace it with a federally 
enforceable State operating permit for Commercial Asphalt's facility 
located on Red Rock Road in the city of St. Paul. EPA approved a 
federally enforceable State operating permit (FESOP)(60 FR 21447) for 
the State of Minnesota on May 2, 1995.
    (i) Incorporation by reference
    (A) Air Emission Permit No. 12300347-002, issued by the MPCA to 
Commercial Asphalt CO-Plant 905, on September 10, 1999. Title I 
conditions only.

[FR Doc. 00-17347 Filed 7-11-00; 8:45 am]
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