[Federal Register Volume 66, Number 233 (Tuesday, December 4, 2001)]
[Rules and Regulations]
[Pages 62967-62969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29963]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[FRL-7111-7]


Clean Air Act Final Full Approval of the Operating Permits 
Program; Minnesota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to fully approve the operating 
permits program submitted by the State of Minnesota. Minnesota 
submitted its operating permits program in response to the directive in 
the 1990 Clean Air Act Amendments that permitting authorities develop, 
and submit to EPA, programs for issuing operating permits to all major 
stationary sources and to certain other sources within the permitting 
authority's jurisdiction.

EFFECTIVE DATE: The effective date of this action is November 30, 2001.

ADDRESSES: Copies of the state's submittal and other supporting 
information used in developing the final full 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 
if inspection of the submittal is desired.

FOR FURTHER INFORMATION CONTACT: Rachel Rineheart, AR-18J, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, Telephone Number: (312) 
886-7017, 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 is involved in this final action?

What Is Being Addressed in This Document?

    As required under Subchapter V of the Clean Air Act (``the Act''), 
EPA has 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, and 
withdraw approval of state operating permits programs (see 57 FR 32250 
(July 21, 1992)). These regulations are codified at 40 Code of Federal 
Regulations (CFR) part 70. Pursuant to Subchapter V, generally known as 
title V, states developed, and submitted to EPA, programs for issuing 
these operating permits to all major stationary sources and to certain 
other sources.
    The EPA's program review occurs under section 502 of the Act and 
the part 70 regulations, which together outline criteria for approval 
or disapproval. Where a program substantially, but not fully, met the 
requirements of part 70, EPA granted the program interim approval. If 
EPA has not fully approved a program by the expiration of an interim 
program, it must establish and implement a federal program.
    The Minnesota Pollution Control Agency (MPCA) submitted its title V 
operating permits program (title V program) for approval on November 
15, 1993. EPA promulgated interim approval of the Minnesota title V 
program on June 16, 1995 (60 FR 31637), and the program became 
effective on July 16, 1995. Subsequently, EPA extended Minnesota's 
title V interim approval period on several occasions, most recently to 
December 1, 2001 (65 FR 32036).
    MPCA submitted amendments to its title V program for our approval 
on June 9, 2000, July 21, 2000, and June 12, 2001. Minnesota intended 
these amendments to correct interim approval issues identified in the 
June 16, 1995, action. Based on this submittal, EPA proposed full 
approval for the Minnesota title V program on October 30, 2001 (66 FR 
54739). EPA did not receive any adverse public comment(s) on the 
proposal; therefore, EPA is taking final action to give full approval 
to the Minnesota title V program.

What Is Involved in This Final Action?

    The EPA is granting full approval of the operating permits program 
submitted by MPCA based on the interim approval corrections submitted 
on June 9, 2000, July 21, 2000, and June 12, 2001. These revisions 
satisfactorily address the program deficiencies identified in EPA's 
June 16, 1995, interim approval rulemaking.
    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. In 
settling the litigation, EPA agreed to publish a notice in the Federal 
Register, so that the public would have the opportunity to identify and 
bring to EPA's attention alleged programmatic and/or implementation 
deficiencies in title V programs. In turn, EPA would respond to the 
public's allegations within specified time periods, if the comments 
were made within 90 days of publication of the Federal Register notice.
    The EPA received one timely comment letter pertaining to the 
Minnesota title V program. As stated in the Federal Register notice 
published on October 30, 2001 proposing to fully approve Minnesota's 
operating permit program, EPA takes no action on those comments in 
today's action. Rather, EPA expects to respond by December 1, 2001 to 
timely public comments on programs that have obtained interim approval, 
and by April 1, 2002 to timely comments on fully approved programs. The 
EPA will publish a notice of deficiency (NOD) if EPA determines that a 
deficiency exists, or will notify the commenter in writing to explain 
the reasons for not making a finding of deficiency. EPA Region 5 will 
also post its response letters on the Internet at http://yosemite.epa.gov/r5/ardcorre.nsf/title+V+Program+Comments. EPA Region 5 
includes the states of Michigan, Minnesota, Illinois, Indiana, Ohio, 
and Wisconsin. The EPA will also

[[Page 62968]]

be posting all response letters on the national EPA website, and the 
Agency will publish a Federal Register notice of the availability of 
those response letters.

Administrative Requirements

A. What Are the Administrative Requirements for This Action?

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this final approval is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget. For this reason, this action is also 
not subject to Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001). This action merely approves state law as meeting 
federal requirements and imposes no additional requirements beyond 
those imposed by state law. Accordingly, the Administrator certifies 
that this final approval will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing 
requirements under state law and does not impose any additional 
enforceable duty beyond that required by state law, it does not contain 
an unfunded mandate nor does it significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4).
    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). This rule merely 
approves 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 final approval is also not subject to Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not a significant 
regulatory action under 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 submitted pursuant to title V 
of the Act, EPA will approve state programs provided that they meet the 
requirements of the Act and EPA's regulations codified at 40 CFR part 
70. Absent a prior existing requirement for the state to use voluntary 
consensus standards, EPA has no authority to disapprove a state 
operating permit program for failure to use such standards, and it 
would thus be inconsistent with applicable law for EPA to use voluntary 
consensus standards in place of a state program that otherwise 
satisfies the provisions of the Act. Therefore, the requirements of 
section 12(d) of the NTTA do not apply.
    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. The EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective November 30, 2001.
    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 February 4, 2002. 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) of the Act.)

B. What Is the Effective Date of EPA's Full Approval of Minnesota's 
Title V Program?

    EPA's approval of Minnesota's title V program is effective on 
November 30, 2001. Pursuant to section 502(h) of the Act, the effective 
date of a permitting program approved under title V is the date of 
approval by the Administrator or her delegatee. Furthermore, the good 
cause exception under the Administrative Procedure Act (APA) allows EPA 
to make the full approval of the state's program immediately effective. 
In relevant part, the APA provides that publication of ``a substantive 
rule shall be made not less than 30 days before its effective date, 
except--* * * (3) as otherwise provided by the agency for good cause 
found and published with the rule.'' 5 U.S.C. Sec. 553(d)(3). Section 
553(b)(3)(B) of the APA provides that good cause may be supported by an 
agency determination that a delay in the effective date is 
impracticable, unnecessary, or contrary to the public interest. The EPA 
finds that it is necessary and in the public interest to make this 
action effective sooner than 30 days following publication. In this 
case, EPA believes that it is in the public interest for the program to 
take effect before December 1, 2001. The EPA's interim approval of 
Minnesota's prior program expires on December 1, 2001. In the absence 
of this full approval of Minnesota's amended program taking effect on 
November 30, the federal program under 40 CFR part 71 would 
automatically take effect in Minnesota and would remain in place until 
the effective date of the fully-approved state program. The EPA 
believes it is in the public interest for sources, the public and 
Minnesota to avoid any gap in coverage of the state program, as such a 
gap could cause confusion regarding permitting obligations. 
Furthermore, a delay in the effective date is unnecessary because MPCA 
has been administering the title

[[Page 62969]]

V permit program for more than six years under an interim approval. 
Through this action, EPA is approving a few revisions to the existing 
and currently operational program. The change from the interim approved 
program which substantially met the part 70 requirements, to the fully 
approved program is relatively minor, in particular if compared to the 
changes between a state-established and administered program and the 
federal program.

C. What Is the Scope of EPA's Full Approval?

    In its program submission, Minnesota did not assert jurisdiction 
over Indian country. To date, no tribal government in Minnesota has 
applied to EPA for approval to administer a title V program in Indian 
country within the state. EPA regulations at 40 CFR part 49 govern how 
eligible Indian tribes may be approved by EPA to implement a title V 
program on Indian reservations and in non-reservation areas over which 
the tribe has jurisdiction. EPA's part 71 regulations govern the 
issuance of federal operating permits in Indian country. EPA's 
authority to issue permits in Indian country was challenged in Michigan 
v. EPA, (D.C. Cir. No. 99-1151). On October 30, 2001, the court issued 
its decision in the case, vacating a provision that would have allowed 
EPA to treat areas over which EPA determines there is a question 
regarding the area's status as if it is Indian country, and remanding 
to EPA for further proceedings. EPA will respond to the court's remand 
and explain EPA's approach for further implementation of part 71 in 
Indian country in a future action.

List of Subjects in 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: November 27, 2001.
Thomas V. Skinner,
Regional Administrator, Region V.


    40 CFR part 70 is amended as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

    2. Appendix A to part 70 is amended by revising the entry for 
Minnesota to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Minnesota

    (a) The Minnesota Pollution Control Agency: submitted on 
November 15, 1993; interim approval effective on July 16, 1995; 
interim approval expires December 1, 2001.
    (b) The Minnesota Pollution Control Agency: Program revisions 
submitted on June 9, 2000, July 21, 2000, June 12, 2001; Rule 
revisions contained in the submittals adequately addressed the 
conditions of the interim approval which expires on December 1, 
2001. Minnesota is hereby granted final full approval effective 
November 30, 2001.
    (c) [Reserved]
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[FR Doc. 01-29963 Filed 12-3-01; 8:45 am]
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