[Federal Register Volume 66, Number 210 (Tuesday, October 30, 2001)]
[Proposed Rules]
[Pages 54739-54742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27258]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[MN; FRL-7094-5]


Clean Air Act Proposed Full Approval of the Air Operation Permits 
Program; MN

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes to fully approve the Minnesota Title V 
Federal Operating Permits Program, submitted

[[Page 54740]]

by Minnesota on June 9, 2000, July 21, 2000, and June 12, 2001 pursuant 
to subchapter V of the Clean Air Act, which requires States to develop, 
and submit to EPA for approval, programs for issuing operation permits 
to all major stationary sources, and to certain other sources.

DATES: EPA must receive written comments on this proposed action on or 
before November 21, 2001.

ADDRESSES: Comments should be addressed to: Robert Miller, Chief, 
Permits and Grants Section, EPA (AR-18J), 77 West Jackson Boulevard, 
Chicago, Illinois, 60604. Copies of the State's submittal and other 
supporting information used in developing the proposed approval are 
available for inspection during normal business hours at the following 
location: EPA Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, 
Illinois, 60604. Please contact Robert Miller at (312) 353-0396 to 
arrange a time to inspect the submittal.

FOR FURTHER INFORMATION CONTACT: Rachel Rineheart, Telephone Number: 
(312) 886-7017, e-mail address: [email protected]; or Robert 
Miller, EPA (AR-18J), 77 West Jackson Boulevard, Chicago, Illinois, 
60604, Telephone Number (312) 353-0396, e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

What Is Being Addressed In This Document?
What Are The Program Changes That EPA Proposes To Approve?
What Is Involved In This Proposed Action?

What Is Being Addressed in This Document?

    As required under Title V of the Clean Air Act (``the Act''), EPA 
promulgated regulations which define the minimum elements of an 
approvable State operating permits program and the corresponding 
standards and procedures by which the EPA will approve, oversee, or 
withdraw approval of the State programs (see 57 FR 32250 (July 21, 
1992)). These regulations are codified at 40 Code of Federal 
Regulations (CFR) part 70. Pursuant to Title V of the Act and the 
implementing regulations, states develop, and submit to EPA, programs 
for issuing operating permits to all major stationary sources and to 
certain other sources. Where a program substantially, but not fully, 
meets the requirements of part 70, EPA grants the program interim 
approval. If EPA has not fully approved a program by the expiration of 
the interim approval period, EPA must establish and implement a Federal 
program under 40 CFR part 71 in that state.
    EPA promulgated final interim approval of the Minnesota Title V 
program on June 16, 1995 (60 FR 31637), and the program became 
effective on July 16, 1995. In the final interim approval, EPA 
identified certain program deficiencies that Minnesota would be 
required to address in order for EPA to fully approve the Minnesota 
Title V program. The interim approval for Minnesota's program expires 
on December 1, 2001.
    Minnesota submitted to EPA revisions to its Title V program on June 
9, 2000, July 21, 2000, and June 12, 2001. These submittals included 
corrections to the interim approval issues identified in the June 16, 
1995 interim approval, and additional program revisions and updates.

What Are The Program Changes That EPA Proposes To Approve?

A. Title V Interim Approval Corrections

    In the June 16, 1995 interim approval, EPA identified five 
deficiencies to be corrected for the program to receive full approval. 
The following is a description of the issues and their subsequent 
resolution.
1. Monitoring Reports
    In the June 16, 1995 action, EPA found that pursuant to part 70 
Minnesota must require, at a minimum, semi-annual monitoring reports 
from all sources required to monitor at least every 6 months and annual 
monitoring reports from sources required to monitor less frequently 
than every 6 months. Minnesota has added language requiring all sources 
subject to part 70 permitting requirements to submit a deviation report 
every 6 months, using the State's deviation reporting form. EPA has 
reviewed this form and compared the content to the requirements for 
semi-annual monitoring reports in 40 CFR part 70.
    Minnesota Rule 7007.0800 requires that the deviation report be 
certified by a responsible official. For each monitoring parameter, the 
form requires: a brief summary of the monitoring performed; a statement 
describing compliance; and a summary of any deviation that occurred 
which includes the number of deviations, the date and time of each 
deviation, the actual recorded value, a statement of why the deviation 
occurred, and a description of corrective actions taken. EPA believes 
that the rule and the required reporting forms meet the semi-annual 
monitoring report requirement of part 70.
2. Administrative Permit Amendment Procedures
    The program originally submitted to EPA for approval allowed the 
use of administrative amendment procedures to ``clarify'' a permit 
term. EPA felt that the term ``clarify'' was ambiguous and that the 
State's rule could be interpreted to include changes outside the scope 
of the administrative amendment procedures outlined in part 70. The 
following change to Minnesota Rule 7007.1400 was effective on January 
19, 1998 (added text has been underlined), ``An amendment to clarify 
the meaning of a permit term.'' By adding the phrase ``the meaning 
of,'' MPCA has limited the scope of changes that could qualify for the 
administrative amendment process. It prevents changes in the limitation 
itself and better reflects the types of permit revisions that the State 
had envisioned for this process. As an example, a permit might contain 
a requirement for daily monitoring of temperature for a unit stating 
that the temperature must be between 100 and 150 degrees Fahrenheit. 
The State could add language through the administrative amendment 
process clarifying that ``daily'' means ``any day the unit is in 
operation.'' In contrast, if an error had been made in the permit such 
as the wrong temperature range or the limit should have been degrees 
Celsius rather than Fahrenheit, the administrative amendment process 
could not be used because the correction of that error would result in 
a change in the meaning of the limitation.
3. Incorporation by Reference
    In the June 16, 1995 interim approval, EPA stated that as a 
condition for full approval Minnesota Rule 7007.0800, subpart 16, must 
be revised to require that all conditions required by 40 CFR 70.6(a) 
contained in Minnesota Rule 7007.0800, subpart 16, be expressly stated 
in part 70 permits. The conditions contained in this subpart are 
general conditions applicable to all part 70 sources such as the 
severability clause. Since that time, EPA has clarified its position on 
permit content requirements. The March 5, 1996 document ``White Paper 
Number 2 for Improved Implementation of the part 70 Operating Permits 
Program,'' addresses the issue of incorporation by reference on pages 
36-41. Because the requirements contained in Minnesota Rule 7007.0800, 
subpart 16, are not source specific and are clearly identifiable in the 
state rules, EPA finds that incorporation by reference of these terms 
is consistent with EPA's

[[Page 54741]]

interpretation of the permit content requirements of part 70.
4. Fees
    In reviewing Minnesota's initial program submittal, EPA found that 
Minnesota had not demonstrated it was collecting adequate fees and 
required Minnesota to submit a detailed fee demonstration or to 
increase the types of pollutant for which fees are charged in order to 
collect an amount equivalent to the presumptive minimum. This problem 
arose because Minnesota had not included all the pollutants in the 
definition of ``any regulated pollutant for presumptive fee 
calculation.'' In an October 16, 1995, memorandum, ``Definition of 
Regulated Pollutant for Particulate Matter for Purposes of Title V,'' 
EPA stated that only PM10 is considered a regulated pollutant under 
Title V; therefore, Minnesota no longer needs to include particulate 
matter greater than 10 microns in diameter in fee calculations. A 
November 10, 1994, letter from MPCA addresses the remaining pollutants. 
The November 10, 1994, letter provides a summary of total reduced 
sulfur, hydrogen chloride, and sulfuric acid mist emissions from the 
Minnesota Emission Inventory. The State shows that fees for these 
pollutants would increase fees collected in the State by less than 0.18 
percent. The State takes the position that the costs associated with 
monitoring, reporting, and tracking these emissions outweigh the 
benefit of any additional revenue that would be collected. EPA believes 
that the additional revenue from including these pollutants in the fee 
calculation would have no more than a trivial benefit. Therefore, EPA 
has decided to accept Minnesota's rule as meeting the presumptive 
minimum.
5. Timelines for Permit Issuance
    The initial program submittal required Minnesota to take final 
action on minor modifications to permits within 180 days from the 
receipt of the application. Part 70 requires final action within 90 
days of receiving a complete application for this type of permit 
modification. Minnesota has revised Minnesota Rule Chapter 7007 to 
address this issue. Minn. R. 7007.0750 Subpart 2.C now requires MPCA to 
take final action on a minor permit amendment within 90 days of 
receiving a complete application. This is now consistent with the 
requirements of 40 CFR 70.5(e)(2)(iv). The rule change was adopted on 
June 1, 1999.

B. Other Title V Program Revisions

    The MPCA has made changes to its Title V program in addition to the 
interim approval corrections. The EPA will address the additional 
program revisions in a separate rulemaking action.

What Is Involved in This Proposed Action?

A. Proposed Action

    The EPA proposes full approval of the Minnesota operating permits 
program based on the corrective program revisions the State submitted 
on June 9, 2000, July 21, 2000, and June 12, 2001. This proposed full 
approval of Minnesota's corrective operating permit program submittal 
is solely for the purpose of meeting the requirements of Title V and 
part 70, and makes no judgement concerning any other Federal program 
requirements, such as State Implementation Plans pursuant to section 
110 of the Clean Air Act. The EPA finds that Minnesota has 
satisfactorily addressed the program deficiencies that EPA identified 
in the June 16, 1995 interim approval.

B. Citizen Comment Letter on Minnesota Title V Program

    On May 22, 2000, EPA promulgated a rulemaking that extended the 
interim approval period of 86 operating permits programs until December 
1, 2001 (65 FR 32035). The action was subsequently challenged by the 
Sierra Club and the New York Public Interest Research Group (NYPIRG). 
In settling the litigation, EPA agreed to publish a notice in the 
Federal Register that would alert the public that they may identify and 
bring to EPA's attention alleged programmatic and/or implementation 
deficiencies in Title V programs and that EPA would respond to their 
allegations within specified time periods if the comments were made 
within 90 days of publication of the Federal Register notice.
    The EPA received one comment letter pertaining to the Minnesota 
Title V program. The EPA takes no action on those comments in today's 
action. As stated in the Federal Register document published on 
December 11, 2000, (65 FR 77376) EPA will respond by December 1, 2001 
to timely public comments on programs that have obtained interim 
approval; and EPA will respond by April 1, 2002 to timely comments on 
fully approved programs. The EPA will publish a notice of deficiency 
(NOD) if the Agency determines that a deficiency exists, or will notify 
the commenter in writing to explain the reasons for not making a 
finding of deficiency. An NOD will not necessarily be limited to 
deficiencies identified by citizens and may include any deficiencies 
that we have identified through our program oversight.

Administrative Requirements

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this proposed action is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. Under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) the Administrator certifies that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities, because it merely approves state law as 
meeting Federal requirements and imposes no additional requirements 
beyond those imposed by State law. This rule does not contain any 
unfunded mandates and does not significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), because it proposes to approve pre-existing 
requirements under State law and does not impose any additional 
enforceable duties beyond that required by State law. This rule also 
does not have tribal implications because it will not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, November 9, 2000). This rule also does not have federalism 
implications, because it 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, 
``Federalism'' (64 FR 43255, August 10, 1999). The rule merely proposes 
to approve existing requirements under state law, and does not alter 
the relationship or the distribution of power and responsibilities 
between the state and the Federal Government established in the Act. 
This proposed rule also is not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) or Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001), because it 
is not a significantly regulatory action under

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Executive Order 12866. This action will not impose any collection of 
information subject to the provisions of the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq., other than those previously approved and 
assigned OMB control number 2060-0243. For additional information 
concerning these requirements, see 40 CFR part 70. An agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 15 U.S.C. 272 note, requires federal agencies to 
use technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing state operating permit programs pursuant to Title V of the 
Act, EPA's role is to approve state choices, provided that they meet 
the criteria of the Act. Absent a prior existing requirement for the 
state to use voluntary consensus standards, EPA has no authority to 
disapprove an operating permit program submission for failure to such 
standards, and it would thus be inconsistent with applicable law for 
EPA to use voluntary consensus standards in place of an operating 
permit program submission that otherwise satisfies the provisions of 
the Act. Therefore, the requirements of section 12(d) of the NTTA do 
not apply.
    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this proposed rule, EPA has taken the 
necessary steps to eliminate drafting errors and ambiguity, minimize 
potential litigation, and provide a clear legal standard for affected 
conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 
15, 1988) by examining the takings implications of the rule in 
accordance with the ``Attorney General's Supplemental Guidelines for 
the Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order, and has determined that the rule's 
requirements do not constitute a taking.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

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

    Dated: October 19, 2001.
David A. Ullrich,
Acting Regional Administrator, Region V.
[FR Doc. 01-27258 Filed 10-29-01; 8:45 am]
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