[Federal Register Volume 67, Number 92 (Monday, May 13, 2002)]
[Rules and Regulations]
[Pages 31963-31966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11734]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MN63-01-7288a; FRL-7165-7]


Approval and Promulgation of Implementation Plans; Minnesota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: We are approving a revision to the Minnesota State 
Implementation Plan (SIP) which updates Minnesota's performance test 
rule in the SIP. The Minnesota Pollution Control Agency (MPCA) 
submitted the proposed revision to EPA on December 16, 1998. The 
proposed revisions set out the procedures for facilities that are 
required to conduct performance tests to demonstrate compliance with 
their emission limits and/or operating requirements. The request is 
approvable because it satisfies the requirements of the Clean Air Act 
(Act). The rationale for the approval and other information are 
provided in this notice.

DATES: This direct final rule will be effective July 12, 2002, unless 
EPA receives adverse comment by June 12, 2002. If EPA receives adverse 
comments, EPA will publish a timely withdrawal of the direct final rule 
in the Federal Register informing the public that the rule will not 
take effect.

ADDRESSES: Written comments may be mailed to: Carlton Nash, Chief, 
Regulation Development Section, Air Programs Branch (AR-18J), United 
States Environmental Protection Agency, 77 West Jackson Boulevard, 
Chicago, Illinois 60604. Copies of the documents relevant to this 
action are available for inspection during normal business hours at the 
above address. (Please telephone Christos Panos at (312) 353-8328, 
before visiting the Region 5 office.)

FOR FURTHER INFORMATION CONTACT: Christos Panos, Regulation Development 
Section, Air Programs Branch (AR-18J), Air and Radiation Division, 
United States Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8328.

SUPPLEMENTARY INFORMATION: This supplemental information section is 
organized as follows:

I. General Information
    1. What action is EPA taking today?
    2. Why is EPA taking This action?
    3. What is the background for this action?
II. Review of State Implementation Plan Revision
    1. Why did the State submit this SIP Revision?
    2. What information did Minnesota submit, and what were its 
requests?
III. Final Rulemaking Action
IV. Administrative Requirements

I. General Information

1. What Action Is EPA Taking Today?

    In this action, EPA is approving into the Minnesota SIP a revision 
to the SIP that MPCA submitted on December 16, 1998 which updates the 
Minnesota performance test rule. The Minnesota performance test rule 
was originally approved into the SIP on May 6, 1982 (47 FR 19520). 
Specifically, EPA is approving into the SIP Minnesota Rules 7017.2001 
through 2060, removing from the SIP Minn. R. 7017.2000, and amending in 
the SIP Minn. R. 7011.0010, 7011.0105, 7011.0510, 7011.0515, 7011.0610, 
7011.0710, 7011.0805, 7011.1305, 7011.1405, and 7011.1410.

2. Why Is EPA Taking this Action?

    EPA is taking this action because the state's submittal, which 
revises the performance test rule SIP, is fully approvable. The 
revisions made by MPCA to the performance test rule since 1976 vastly 
improve the performance testing requirements found in the Minnesota 
SIP. The 1976 rule, which is currently enforceable by EPA in the SIP 
(Minn. R. 70 17.2000), lacks many of the requirements now specifically 
set forth in the revised state rules.
    EPA reviewed the SIP revision request for completeness based on the 
completeness requirements contained in Title 40 of the Code of Federal 
Regulations, Part 51, Appendix V. The EPA determined that the submittal 
is complete, and notified the State of Minnesota in a March 23, 1999 
letter from Richard C. Karl, EPA, to Karen Studders, MPCA. The state 
has adequately addressed EPA's concerns, as discussed below, and the 
performance test SIP revision satisfies the applicable requirements of 
the Act. A more detailed explanation of how the state's submittal meets 
these requirements is in EPA's June 19, 2001 Technical Support Document 
(TSD).

3. What Is the Background for This Action?

A. Original Performance Test Rule SIP Submittal
    Minnesota promulgated the original performance test rules in 1976 
as Air Pollution Control 21 (APC 21). APC 21 was submitted to EPA in 
1980 as part of Minnesota's Total Suspended Particulate Matter control 
plan and was incorporated into the SIP on May 6,

[[Page 31964]]

1982 (47 FR 19520). The state recodified APC 21 to Minn. R. 7005.1860 
in 1983, and yet again to Minn. R. 7017.2000 in 1993. The state made 
only minor changes to the performance test rule between 1976 and 1993. 
MPCA initiated major additions to the performance test rule in 1993 as 
described below.
B. 1993 Rulemaking Changes to the Performance Test Rule
    The MPCA revised the performance test rule in 1993 for the 
following reasons: (1) The need to clarify and consolidate the state's 
performance test requirements; (2) the increase in the number of 
regulated pollutants and the increase in available test methods for 
performance testing; and (3) the need to use a definition of ``PM10'' 
that is consistent with the federal definition. On December 6, 1993, 
the state repealed the 1976 performance test rule, Minn. R. 7017.2000, 
and the 1993 performance test rule, Minn. R. 7017.2001-2060, became 
effective.
    EPA reviewed and commented on the rule during its development and 
had identified several issues that required resolution before the rule 
could be approved into the SIP. EPA and MPCA staff participated in 
numerous discussions subsequent to the rulemaking to resolve these 
issues. EPA formally provided MPCA with its final comments by letter 
dated May 9, 1997. EPA's primary concerns with the 1993 version of the 
performance test rule were that certain provisions in the regulations 
could unintentionally impede enforcement, and that provisions 
addressing malfunction, startup and shutdown were less stringent than 
the federal New Source Performance Standards (NSPS).

II. Review of State Implementation Plan Revision

1. Why Did the State Submit This SIP Revision?

    MPCA initiated its latest revision to the performance test rule to 
address EPA's May 9, 1997 comments. As previously stated, in 1993 the 
state repealed the 1976 version of the performance test rule, which is 
currently in the Minnesota SIP.
    In a June 25, 1997 letter to EPA, MPCA staff responded to EPA's May 
9, 1997 comments with additional revisions to the rule. Due to filing 
errors, MPCA placed the performance test rule on public notice twice, 
from July 28 to August 27, 1997 and from April 20 to May 20, 1998 
before rulemaking was completed on the final rule.
    Because over a year had passed between MPCA's June 25, 1997 
response to EPA's May 9, 1997 comments and the completion of formal 
rulemaking, MPCA re-responded to EPA's comments which it included in 
their December 16, 1998 SIP submittal.

2. What Information Did Minnesota Submit, and What Were Its Requests?

    In order to resolve those issues that EPA identified as impediments 
to SIP approval, MPCA made the following revisions to its performance 
test rule. MPCA revised language in the performance test rule to 
reference the use of credible evidence where a test does not meet the 
administrative and technical requirements of the rule, and incorporated 
NSPS language to make the revised rule's provisions regarding 
malfunction, startup and shutdown equally stringent to the federal 
requirements. MPCA also incorporated a number of relatively minor 
language changes to help clarify the intent of the rule. Additional 
changes to the performance test rule were based on MPCA's review and 
experience since the state adopted the rule in December 1993, and the 
streamlining of certain administrative procedures. EPA has reviewed 
both the 1997 and 1998 response documents submitted by MPCA and has 
found that the state has adequately addressed EPA's concerns.
    The State has requested that EPA approve the following: (1) The 
removal of Minn. R. 7017.2000 from the SIP, since this rule was 
repealed by the state in 1993; (2) the inclusion of the revised 
performance test rule, Minn. R. 7019.2001-2060, into the SIP; and (3) 
the inclusion into the SIP of updates to small portions of the opacity 
rules and other related rules identified while amending the performance 
test rule. Listed below are some of the changes made by the state to 
strengthen the performance test rule since it was incorporated into the 
SIP in 1976.
    Definitions (7017.2005). A detailed set of definitions for the 
terms used in the performance test provisions was added to enhance the 
clarity and enforceability of the requirements.
    Federal Testing Requirements and Test Methods (7017.2010, 
7017.2015, and 7017.2050). The amended rule requires compliance with 
current EPA test methods. Because the rule incorporates by reference 
federal test methods and any future amendments or versions of those 
methods, the SIP will automatically require compliance with the latest 
EPA requirements (including testing requirements set forth in NSPS and 
NESHAPS).
    Pretest Requirements (7017.2030). Substantial pretest requirements 
have been added, including a requirement to submit a detailed test plan 
and to meet with MPCA personnel prior to testing.
    Testing Procedures and Quality Assurance (7017.2045 7017.2060). 
Incorporates new language regarding testing procedures and quality 
assurance.
    Operational Requirements and Limitations (7017.2025). Establishes 
enforceable operating limitations based on tested conditions to better 
ensure that the compliance shown during testing is actually maintained 
during day-to-day operations.
    Reporting and Certification Requirements (7017.2035, 7017.2040). 
Prescribes detailed reporting requirements, including what information 
must be in the test report, and specific requirements for responsible 
persons to certify the sampling, analysis, and reporting of the test 
results.
    Consequences for Failing a Test (7017.2025, subparts 4 and 5). Lays 
out specific retesting requirements and a standard requirement to shut 
down units failing a retest except in certain circumstances.
    Credible Evidence (7017.2020, subpart 6). Ensures that no person 
can mistakenly assume that the performance test requirements in any way 
undermine the ability to use any credible evidence to establish a 
violation.
    Changes to Opacity Averaging Times in Performance Standards (7011). 
Changes the averaging times of all opacity limit excursion levels to 
six-minute intervals, and proportionately lowers the excursion limit. 
This results in an opacity standard that is essentially equivalent and 
consistent with EPA Method 9 and therefore makes the excursion limits 
more enforceable.

III. Final Rulemaking Action

    EPA is approving into the Minnesota SIP revisions to the Minnesota 
performance test rule. The Minnesota performance test rule was 
originally approved into the SIP on May 6, 1982 (47 FR 19520). 
Specifically, EPA is approving into the SIP Minnesota Rules 7017.2001 
through 2060, and amending the following rules currently in the SIP 
with amendments adopted by the state on July 13, 1998: Minn. R. 
7011.0010, 7011.0105, 7011.0510, 7011.0515, 7011.0610, 7011.0710, 
7011.0805, 7011.1305, 7011.1405, and 7011.1410. In addition, EPA is 
removing Minn. R. 7017.2000 from the SIP, since this rule was repealed 
by the state in 1993. As described above, MPCA has addressed the issues 
identified by EPA and the performance test rule revision is therefore 
fully approvable.

[[Page 31965]]

    The EPA is publishing this action without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the state plan if relevant adverse 
comments are filed. This rule will be effective July 12, 2002 without 
further notice unless we receive relevant adverse comments by June 12, 
2002. If we receive such comments, we will withdraw this action 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 we do not 
receive any comments, this action will be effective July 12, 2002.
    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 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

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action 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 rule 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 any unfunded mandate or 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 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This 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), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.
    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. 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).
    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 July 12, 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).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: January 17, 2002.
David A. Ullrich,
Acting Regional Administrator, Region 5.


    Title 40 of the 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)(58) to read 
as follows:


Sec. 52.1220  Identification of plan.

* * * * *
    (c) * * *
    (58) On December 16, 1998, the State submitted an update to the 
Minnesota performance test rule, which sets out the procedures for 
facilities that are required to conduct performance tests to 
demonstrate compliance with their emission limits and/or operating 
requirements. In addition, EPA is removing from the state SIP Minnesota 
Rule 7017.2000 previously approved as APC 21 in paragraph (c)(20) and 
amended in paragraph (c)(40) of this section.
    (i) Incorporation by reference.
    (A) Amendments to Minnesota Rules 7011.0010, 7011.0105, 7011.0510, 
7011.0515, 7011.0610, 7011.0710, 7011.0805, 7011.1305, 7011.1405, 
7011.1410, 7017.2001, 7017.2005, 7017.2015, 7017.2018, 7017.2020,

[[Page 31966]]

7017.2025, 7017.2030, 7017.2035, 7017.2045, 7017.2050 and 2060, 
published in the Minnesota State Register April 20, 1998, and adopted 
by the state on July 13, 1998.

[FR Doc. 02-11734 Filed 5-10-02; 8:45 am]
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