[Federal Register Volume 67, Number 141 (Tuesday, July 23, 2002)]
[Rules and Regulations]
[Pages 48036-48039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18397]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[MN 67-01-7292(a); FRL-7248-9]


Approval of Section 112(l) Program of Delegation; Minnesota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving, through a ``direct final'' procedure, a 
request from Minnesota for delegation of the Federal air toxics program 
pursuant to section 112(l) of the Clean Air Act (Act). The State's 
mechanism of delegation involves the straight delegation of all 
existing and future section 112 standards unchanged from the Federal 
standards. The actual delegation of authority of individual standards, 
except standards addressed specifically in this action, will occur 
through a procedure set forth in a Memorandum of Agreement (MOA) 
between the Minnesota Pollution Control Agency (MPCA) and EPA. This 
request for approval of a mechanism of delegation applies only to those 
part 70 sources subject to a section 112 standard in Minnesota. It does 
not include those sources in Indian country.

DATES: The ``direct final'' is effective on September 23, 2002, unless 
EPA receives adverse or critical written comments by August 22, 2002. 
If adverse comment is received, EPA will publish a timely withdrawal of 
the rule in the Federal Register informing the public that the rule 
will not take effect.

ADDRESSES: Written comments should be sent to: Robert Miller, Chief, 
Permits and Grants Section, Air Programs Branch (AR-18J), U.S. 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
    Copies of the State's submittal and other supporting information 
used in developing the 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: Bryan Holtrop, AR-18J, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-6204, 
[email protected] or, Rachel Rineheart, AR-18J, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, at (312) 886-7017, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' are used we mean EPA.

Table of Contents

I. Why Are We Delegating This Program to MPCA?

[[Page 48037]]

II. What Is the History of This Request for Delegation?
III. How Will MPCA Implement This Delegation?
IV. What Requirements Did MPCA Meet To Receive Today's Approval?
V. How Did MPCA Meet the Approval Criteria?
VI. How will Applicability Determinations Under Section 112 Be Made?
VII. What Is Today's Final Action?
VIII. Administrative Requirements.

I. Why Are We Delegating This Program to MPCA?

    Section 112(l) of the Act enables the EPA to delegate Federal air 
toxics programs or rules to be implemented by States in State air 
toxics programs. The Federal air toxics program implements the 
requirements found in section 112 of the Act pertaining to the 
regulation of hazardous air pollutants. Delegation of an air toxics 
program is granted by the EPA if the Agency finds that the State 
program: (1) Is ``no less stringent'' than the corresponding Federal 
program or rule, (2) the State has adequate authority and resources to 
implement the program, (3) the schedule for implementation and 
compliance is sufficiently expeditious, and (4) the program is 
otherwise in compliance with Federal guidance. Once approval is 
granted, the air toxics program can be implemented and enforced by 
State agencies, as well as EPA.

II. What Is the History of This Request for Delegation?

    On December 12, 1995, Minnesota submitted to EPA a request for 
delegation of authority to implement and enforce the air toxics program 
under section 112 of the Act. On February 6, 1996, EPA found the 
State's submittal complete. This request for delegation included both 
sources subject to the operating permit requirements of 40 CFR part 70 
and sources not subject to the permitting requirements of part 70. On 
July 26, 2001, Minnesota revised the original request for delegation, 
and is now seeking delegation only for sources subject to part 70. In 
this notice EPA is taking final action to approve the program of 
delegation for Minnesota of parts 61 and 63 standards for all part 70 
sources, except for those in Indian country.

III. How Will MPCA Implement This Delegation?

    Requirements for approval, specified in section 112(l)(5), require 
that a State's program contain adequate authorities, adequate resources 
for implementation, and an expeditious compliance schedule. These 
requirements are also requirements for an adequate operating permits 
program under part 70 (Sec. 70.4). In a December 4, 2001 rulemaking, 
EPA promulgated a final approval of the State of Minnesota's Operating 
Permit Program under part 70. Sources subject to the part 70 program 
are those sources that are operating pursuant to a part 70 permit 
issued by the State or a part 71 permit issued by EPA. Sources not 
subject to the part 70 program are those sources that are not required 
to obtain a part 70 permit under Title V of the Act from either the 
State, Tribes, or EPA (see 40 CFR 70.3). This action will provide a 
mechanism to delegate the authority to implement and enforce the 
section 112 air toxics program for sources subject to part 70 in the 
State of Minnesota.
    The Minnesota program of delegation will not include delegation of 
section 112(r) authority. The program will, however, include the 
delegation of the 40 CFR part 63 general provisions to the extent that 
they are not reserved to the EPA and are delegable to the State.
    As stated above, this notice constitutes EPA's approval of 
Minnesota's program of straight delegation of all existing and future 
air toxics standards, except for section 112(r) standards, as they 
pertain to part 70 sources. Straight delegation means that the State 
will not promulgate its own State rules for each section 112 standard 
promulgated by EPA, but will implement, adopt by reference, and enforce 
without change the section 112 standards promulgated by EPA. The 
Minnesota program of straight delegation will operate as follows: For a 
future section 112 standard for which MPCA intends to accept 
delegation, EPA will automatically delegate the authority to implement 
a section 112 standard to the State by letter. If MPCA does not intend 
to accept delegation of a standard, MPCA will notify EPA within 45 days 
of EPA final promulgation of the standard. Upon incorporation by 
reference of the Federal standard into the State Rules, EPA will 
delegate the authority to enforce the standard as well.
    Minnesota will assume responsibility for the timely implementation 
and enforcement required by each standard, as well as any further 
activities agreed to by MPCA and EPA. Some activities necessary for 
effective implementation of a standard include receipt of initial 
notifications, recordkeeping, reporting, and generally assuring that 
sources subject to a standard are aware of its existence. When deemed 
appropriate, MPCA will utilize the resources of its Small Business 
Assistance Program to assist in general program implementation. The 
details of this delegation mechanism will be set forth in a memorandum 
of agreement between EPA and MPCA, copies of which will be placed in 
the official file associated with this rulemaking.

IV. What Requirements Did MPCA Meet To Receive Today's Approval?

    On November 26, 1993, EPA promulgated regulations to provide 
guidance relating to the approval of State programs under section 
112(l) of the Act. 40 FR 62262. That rulemaking outlined the 
requirements of approval with respect to various delegation options. 
The requirements for approval pursuant to section 112(l)(5) of the Act, 
for a program to implement and enforce Federal section 112 rules as 
promulgated without changes, are found at 40 CFR 63.91. Any request for 
approval must meet all section 112(l) approval criteria, as well as all 
approval criteria of Sec. 63.91. A more detailed analysis of the 
State's submittal pursuant to Sec. 63.91 is contained in the Technical 
Support Documents, dated August 15, 2001, included in the official file 
for this rulemaking.
    Under section 112(l) of the Act, approval of a State program is 
granted by the EPA if the Agency finds that: (1) The State program is 
``no less stringent'' than the corresponding Federal program, (2) the 
State has adequate authority and resources to implement the program, 
(3) the schedule for implementation and compliance is sufficiently 
expeditious, and (4) the program is otherwise in compliance with 
Federal guidance.

V. How Did MPCA Meet the Approval Criteria?

    EPA is approving Minnesota's mechanism of delegation because the 
State's submittal meets all requirements necessary for approval under 
section 112(l). The first requirement is that the program be no less 
stringent than the Federal program. The Minnesota program is no less 
stringent than the corresponding Federal program or rule because the 
State has requested straight delegation of all standards unchanged from 
the Federal standards.
    Second, the State has shown that it has adequate authority and 
resources to implement the program. The authorities are contained in 
Attachment B of Minnesota's November 15, 1993, Title V submittal. 
Section 116.07, subdivision 4a of the Minnesota Statutes authorizes 
MPCA to issue construction and operating permits to part 70 sources of 
regulated pollutants to assure compliance with all applicable 
requirements of the Act. Sources subject to the part 70 program are 
those sources

[[Page 48038]]

that are operating pursuant to a part 70 permit issued by the State, 
local agency or EPA (part 71), whereas sources not subject to the part 
70 program are those sources that are not required to obtain a Title V 
permit under Federal law from either the State, Tribes, or EPA. 
Minnesota has the authority under section 116 to include any conditions 
in an operating permit that are necessary to assure compliance with the 
Act (including section 112 requirements). Furthermore, Minnesota has 
the authority to perform inspections, request compliance information, 
and to bring civil and criminal enforcement actions to recover 
penalties and fines. (Specifically, the statutory language for the 
above authorities are found in Minnesota Statutes sections 115.071, 
116.091, 116.11, 609.671, and 645.24). Adequate resources will be 
obtained through State funds, Section 105 grant monies awarded to 
States by EPA, and through Title V fees that can be used to fund 
acceptable activities with respect to part 70 sources.
    Third, upon promulgation of a standard, Minnesota will immediately 
begin activities necessary for timely implementation of the standard. 
These activities will involve identifying sources subject to the 
applicable requirements and notifying these sources of the applicable 
requirements. Such schedule is sufficiently expeditious for approval.
    Fourth, the Minnesota mechanism for straight delegation is not 
contrary to Federal guidance.

VI. How Will Applicability Determinations Under Section 112 Be Made?

    In approving this delegation, the State will obtain concurrence 
from EPA on any matter involving the interpretation of section 112 of 
the Clean Air Act or 40 CFR part 61 and 63 to the extent that 
implementation, administration, or enforcement of these sections have 
not been covered by EPA determinations or guidance.

VII. What Is Today's Final Action?

    The EPA is promulgating final approval of the December 12, 1995, 
request and subsequent revision by the State of Minnesota of a 
mechanism for straight delegation of section 112 standards unchanged 
from Federal standards because the request meets all requirements of 40 
CFR 63.91 and section 112(l) of the Act. After the effective date of 
this document and upon signing of the MOA, the implementation and 
enforcement of all existing section 112 standards, excluding section 
112(r), which have been incorporated into the Minnesota Rules, are 
delegated to the State of Minnesota (specifically 40 CFR part 63, 
subpart H ``National Emission Standards for Organic Hazardous Air 
Pollutants for Equipment Leaks,'' 40 CFR part 63, subpart I ``National 
Emission Standards for Organic Hazardous Air Pollutants for Certain 
Processes Subject to the Negotiated Regulation for Equipment Leaks,'' 
40 CFR part 63, subpart L ``National Emission Standards for Coke Oven 
Batteries,'' 40 CFR part 63, subpart M ``National Perchloroethylene Air 
Emission Standards for Dry Cleaning Facilities,'' 40 CFR part 63, 
subpart N ``National Emission Standards for Chromium Emissions from 
Hard and Decorative Chromium electroplating and Chromium Anodizing 
Tanks,'' 40 CFR part 63, subpart O ``Ethylene Oxide Emissions Standards 
for Sterilization Facilities,'' 40 CFR part 63, subpart Q ``National 
Emission Standards for Hazardous Air Pollutants for Industrial Process 
Cooling Towers,'' 40 CFR part 63, subpart R ``National Emission 
Standards for Gasoline Distribution Facilities (Bulk Gasoline Terminals 
and Pipeline Breakout Stations),'' 40 CFR part 63, subpart T ``National 
Emission Standards for Halogenated Solvent Cleaning,'' 40 CFR part 63, 
subpart U ``National Emission Standards for Hazardous Air Pollutant 
Emissions Group I Polymers and Resins,'' 40 CFR part 63, subpart W 
``National Emission Standards for Hazardous Air Pollutants for Epoxy 
Resins Production and Non-Nylon Polyamides Production, '' 40 CFR part 
63, subpart X, ``National Emission Standards for Hazardous Air 
Pollutants from Secondary Lead Smelting,'' 40 CFR part 63, subpart Y 
``National Emission Standards for Marine Tank Vessel Loading 
Operations,'' 40 CFR part 63, subpart CC ``National Emission Standards 
for Hazardous Air Pollutants from Petroleum Refineries,'' 40 CFR part 
63, subpart DD ``National Emission Standards for Hazardous Air 
Pollutants from Off-Site Waste and Recovery Operations,'' 40 CFR part 
63, subpart EE ``National Emission Standards for Magnetic Tape 
Manufacturing Operations,'' 40 CFR part 63, subpart GG ``National 
Emission Standards for Aerospace Manufacturing and Re-Work 
Facilities,'' 40 CFR part 63, subpart II ``National Emission Standards 
for Shipbuilding and Ship Repair (Surface Coating),'' 40 CFR part 63, 
subpart JJ ``National Emission Standards for Wood Furniture 
Manufacturing Operations,'' 40 CFR part 63, subpart KK ``National 
Emission Standards for the Printing and Publishing Industry,'' 40 CFR 
part 63, subpart OO ``National Emission Standards for Tanks--Level 1,'' 
40 CFR part 63, subpart PP ``National Emission Standards for 
Containers,'' 40 CFR part 63, subpart QQ ``National Emission Standards 
for Surface Impoundments,'' 40 CFR part 63, subpart RR ``National 
Emission Standards for Individual Drain Systems,'' 40 CFR part 63, 
subpart VV ``National Emission Standards for Oil-Water Separators and 
Organic-Water Separators,'' and 40 CFR part 63, subpart JJJ ``National 
Emission Standards for Hazardous Air Pollutant Emissions: Group IV 
Polymers and Resins''). As for the existing section 112 standards which 
have not yet been incorporated into the Minnesota Rules, the 
implementation authority for these standards is delegated to the State 
of Minnesota after the effective date of this action and upon signing 
of the MOA. The enforcement authority and the future delegation of the 
section 112 standards to the State will occur according to the 
procedures outlined in the MOA.
    This delegation does not include authority over sources in Indian 
country subject to section 112. Under the Act such Indian country 
sources are regulated directly by the EPA, until such time as a Tribe 
requests and has approved its own section 112 program or has the 
Federal program delegated to it as a part of its tribal implementation 
plan. See the Tribal Authority Rule, 63 FR 7253 (February 12, 1998). At 
this time no Tribe in Minnesota has requested or received any 
authorities under section 112, and EPA is directly implementing and 
enforcing the section 112 program in Indian country in Minnesota.
    Effective immediately, all notifications, reports and other 
correspondence required under section 112 standards for part 70 sources 
should be sent to the State of Minnesota rather than to the EPA, Region 
5, in Chicago. Affected sources should send this information to: 
Compliance Tracking Coordinator, Majors and Remediation Division, MPCA, 
520 Lafayette Road, St. Paul, Minnesota 55155-4194. Sources not subject 
to part 70 or that are on a tribal reservation should send all 
notifications, reports and other correspondence required under section 
112 standards to: Chief, Air Enforcement and Compliance Assurance 
Branch (AE-17J), Air and Radiation Division, U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, IL 60604.
    EPA is publishing this action without prior proposal because EPA 
views this action as a noncontroversial revision and anticipates no 
adverse comments. However, in a separate document in this

[[Page 48039]]

Federal Register publication, EPA is proposing to approve the State 
Plan should adverse or critical written comments be filed. This action 
will be effective without further notice unless EPA receives relevant 
adverse written comment by August 22, 2002. Should EPA receive such 
comments, it will publish a final rule informing the public that this 
action will not take effect. 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 on 
Sepetmber 23, 2002.

VIII. 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 actions as meeting Federal requirements and 
imposes no additional requirements beyond those Federal requirements 
currently being imposed by EPA. Accordingly, the Administrator 
certifies that this action 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 delegation 
approves pre-existing Federal requirements already required 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 (Pub. L. 104-4).
    This action 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 plan 
for implementing Federal standards, 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 a state's request for section 112 authority, 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 section 112 authority 
request for failure to use VCS. It would thus be inconsistent with 
applicable law for EPA, when it reviews a section 112 authority 
request, to use VCS in place of a section 112 authority request 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 delegation 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 September 23, 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 63

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

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

    Dated: June 27, 2002.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. 02-18397 Filed 7-22-02; 8:45 am]
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