[Federal Register Volume 68, Number 169 (Tuesday, September 2, 2003)]
[Rules and Regulations]
[Pages 52110-52113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22153]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MN79-1a; FRL-7543-6]


Approval and Promulgation of State Implementation Plans; 
Minnesota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving a site-specific revision to the Minnesota 
sulfur dioxide (SO2) State Implementation Plan (SIP) for the 
Xcel Energy (formerly known as Northern States Power Company) Inver 
Hills Generating Plant located in the city of Inver Grove Heights, 
Dakota County, Minnesota. By its submittal dated August 9, 2002, the 
Minnesota Pollution Control Agency (MPCA) requested that EPA approve 
Xcel's federally enforceable Title V operating permit into the 
Minnesota SO2 SIP and remove the Xcel Administrative Order from the 
state SO2 SIP. The state is also requesting in this 
submittal, that EPA rescind the Administrative Order for Ashbach 
Construction Company (Ashbach) from the Ramsey County particulate 
matter (PM) SIP. The requests are approvable because they satisfies the 
requirements of the Clean Air Act (Act). The rationale for the approval 
and other information are provided in this rulemaking action.

DATES: This ``direct final'' rule is effective November 3, 2003, unless 
EPA receives written adverse comment by October 2, 2003. If written 
adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register and inform the public 
that the rule will not take effect.

ADDRESSES: Written comments may be mailed to: Carlton T. 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.)
    Comments may also be submitted electronically or through hand 
delivery/courier, please follow the detailed instructions described in 
Part(I)(B)(1)(i) through (iii) of the Supplementary Information 
section. A copy of the SIP revision is available for inspection at the 
Office of Air and Radiation (OAR) Docket and Information Center (Air 
Docket 6102), United States Environmental Protection Agency, Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, (202) 
260-7548.

FOR FURTHER INFORMATION CONTACT: Christos Panos, Environmental 
Engineer, 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. [email protected].

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

I. General Information.
II. EPA Action and Review.
    1. What action is EPA taking today?
    2. Why is EPA taking this action?
III. Background on Minnesota Submittal.
    1. What is the background for this action?
    2. What information did Minnesota submit, and what were its 
requests?
    3. What is a ``Title I Condition?'
IV. Final Rulemaking Action.
V. Statutory and Executive Order Reviews.

I. General Information

A. How Can I Get Copies Of This Document and Other Related Information?

    1. The Regional Office has established an official public 
rulemaking file available for inspection at the Regional Office. EPA 
has established an official public rulemaking file for this action 
under ``Region 5 Air Docket MN79''. The official public file consists 
of the documents specifically referenced in this action, any public 
comments received, and other information related to this action. 
Although a part of the official docket, the public rulemaking file does 
not include Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. The official 
public rulemaking file is the collection of materials that is available 
for public viewing at the Air Programs Branch, Air and Radiation 
Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 
60604. EPA requests that if at all possible, you contact the contact 
listed in the For Further Information Contact section to schedule your 
inspection. The Regional Office's official hours of business are Monday 
through Friday, 8:30 to 4:30 excluding Federal holidays.
    2. Electronic Access. You may access this Federal Register document 
electronically through the regulations.gov web site located at http://www.regulations.gov where you can find, review, and submit comments on 
Federal rules that have been published in the Federal Register, the 
Government's legal newspaper, and are open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in the official public 
rulemaking file. The entire printed comment, including the copyrighted 
material, will be available at the Regional Office for public 
inspection.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number by including the text 
``Public comment on proposed rulemaking Region 5 Air Docket ``MN79'' in 
the subject line on the first page of your comment. Please ensure that 
your comments are submitted within the specified comment period. 
Comments received after the close of the comment period will be marked 
``late.'' EPA is not required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or

[[Page 52111]]

CD ROM. This ensures that you can be identified as the submitter of the 
comment and allows EPA to contact you in case EPA cannot read your 
comment due to technical difficulties or needs further information on 
the substance of your comment. EPA's policy is that EPA will not edit 
your comment, and any identifying or contact information provided in 
the body of a comment will be included as part of the comment that is 
placed in the official public docket. If EPA cannot read your comment 
due to technical difficulties and cannot contact you for clarification, 
EPA may not be able to consider your comment.
    i. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected]. Please include the text ``Public comment on 
proposed rulemaking Region 5 Air Docket MN79'' in the subject line. 
EPA's e-mail system is not an ``anonymous access'' system. If you send 
an e-mail comment directly without going through Regulations.gov, EPA's 
e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket.
    ii. Regulations.gov. Your use of Regulations.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to 
Regulations.gov at http://www.regulations.gov, then click on the button 
``TO SEARCH FOR REGULATIONS CLICK HERE'', and select Environmental 
Protection Agency as the Agency name to search on. The list of current 
EPA actions available for comment will be listed. Please follow the 
online instructions for submitting comments. The system is an 
``anonymous access'' system, which means EPA will not know your 
identity, e-mail address, or other contact information unless you 
provide it in the body of your comment.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in Section 2, directly 
below. These electronic submissions will be accepted in WordPerfect, 
Word or ASCII file format. Avoid the use of special characters and any 
form of encryption.
    2. By Mail. Send your comments to: Carlton Nash, Chief, Regulation 
Development Section, Air Programs Branch, (AR-18J), U.S. Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. Please include the text ``Public comment on proposed 
rulemaking Regional Air Docket MN79'' in the subject line on the first 
page of your comment.
    3. By Hand Delivery or Courier. Deliver your comments to: Carlton 
Nash, Chief, Regulation Development Section, Air Programs Branch, (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, 18th floor, Chicago, Illinois 60604. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 to 4:30 excluding Federal holidays.

C. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
as CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR Part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection without prior notice. If you have any questions about 
CBI or the procedures for claiming CBI, please consult the person 
identified in the FOR FURTHER INFORMATION CONTACT section.

II. EPA Action and Review

1. What Action Is EPA Taking Today

    In this action, EPA is approving into the Minnesota SO2 
SIP certain portions of the Title V permit for Xcel Energy's Inver 
Hills Generating Plant (Xcel) located in the city of Inver Grove 
Heights, Dakota County, Minnesota. Specifically, EPA is only approving 
into the SIP those portions of the permit cited as ``Title I Condition: 
State Implementation Plan for SO2.'' In this same action, 
EPA is removing the Xcel Administrative Order from the state 
SO2 SIP, and the Ashbach Administrative Order from the state 
PM SIP.

2. Why Is EPA Taking This Action?

    EPA is taking this action for Xcel because the state's request does 
not change any of the emission limitations currently in the 
SO2 SIP or their accompanying supportive documents, such as 
the SO2 air dispersion modeling. The revision to the 
SO2 SIP does not approve any new construction or allow an 
increase in emissions, thereby providing for attainment and maintenance 
of the SO2 National Ambient Air Quality Standards (NAAQS) 
and satisfying the applicable SO2 requirements of the Act. 
The only change to the SO2 SIP is the enforceable document 
for Xcel, from the Administrative Order to the Title V permit.
    EPA is taking action to rescind the Administrative Order for 
Ashbach from the Ramsey County PM SIP because, as described below, the 
Administrative Order for this facility is no longer necessary since the 
company has permanently ceased operations at the Saint Paul asphalt 
plant.

III. Background on Minnesota Submittal

1. What Is the Background for This Action?

Xcel Energy Inver Hills Generating Plant
    Xcel's Inver Hills Generating Plant is located in Inver Grove 
Heights, Dakota County, Minnesota, in the Pine Bend SO2 
maintenance area. Monitored violations of the primary SO2 
NAAQS from 1975 through 1977 led EPA to designate Air Quality Control 
Region (AQCR) 131 as a primary SO2 nonattainment area on 
March 3, 1978 (43 FR 8962). AQCR 131 includes Anoka, Carver, Dakota, 
Hennepin, Ramsey, Scott, and Washington Counties in the State of 
Minnesota. In response to Part D requirements of the Clean Air Act, 
MPCA submitted a final SO2 plan on August 4, 1980. EPA 
approved the Minnesota Part D SO2 SIP for AQCR 131 on April 
8, 1981 (46 FR 20996).
    Subsequent monitored violations of the SO2 NAAQS 
prompted a 1982 notice of SIP inadequacy for the Dakota County area of 
AQCR 131. Also, as a result of the promulgation of the Good Engineering 
stack height rule in 1985, the MPCA identified modeled attainment 
problems in other areas of AQCR 131. The submittal of a revised plan 
was further delayed by the passage of the 1990 Amendments to the Act. 
The plan for the Pine Bend area of Dakota County of AQCR 131, which 
included an Administrative Order for Northern States Power-Inver Hills 
Station, was approved by EPA on September 9, 1994 (59 FR 46553). EPA 
approved Amendments Two and Three to the administrative order for 
Northern States

[[Page 52112]]

Power-Inver Hills Station on June 13, 1995 (60 FR 31088), and October 
13, 1998 (63 FR 54585), respectively.
    The state submitted a request to redesignate the Twin Cities and 
Pine Bend areas of AQCR 131 (excluding the Saint Paul Park area), to 
attainment of the SO2 NAAQS on September 7, 1994. EPA 
approved the redesignation request on May 31, 1995 (60 FR 28339).
Ashbach Construction Company
    Ashbach was located in Saint Paul, Ramsey County, Minnesota. A 
portion of the Saint Paul area was designated nonattainment of the PM 
NAAQS upon enactment of the 1990 Amendments to the Act. The State 
submitted SIP revisions satisfying the attainment demonstration 
requirements of the Act in 1991 and 1992. The enforceable element of 
the State's submittals were administrative orders for nine facilities 
in the Saint Paul area. An Administrative Order for Ashbach was 
included in these submittals. EPA took final action on February 15, 
1994 at 59 FR 7218, to approve Minnesota's submittals as satisfying the 
applicable requirements for the Saint Paul PM nonattainment area. The 
facility ceased operations at the end of the 1996 asphalt producing 
season and was permanently shut down in 1997.
    On June 20, 2002, MPCA requested that EPA redesignate the Saint 
Paul PM nonattainment area to attainment. EPA took final action on July 
26, 2002 at 67 FR 48787, redesignating the Saint Paul PM nonattainment 
area to attainment of the PM NAAQS.

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

    The SIP revision submitted by MPCA on February 6, 2000, consists of 
a Title V permit issued to Xcel. The state has requested that EPA 
approve the following:
    (1) The inclusion into the Minnesota SO2 SIP only the 
portions of the Xcel Inver Hills Generating Plant Title V permit cited 
as ``Title I Condition: State Implementation Plan for 
SO2.'';
    (2) The removal from the Minnesota SO2 SIP of the 
Administrative Order for Xcel previously approved into the SIP; and,
    (3) The removal from the Minnesota PM SIP of the Administrative 
Order for Ashbach previously approved into the SIP.

3. What Is a ``Title I Condition''?

    SIP control measures were contained in permits issued to culpable 
sources in Minnesota until 1990 when EPA determined that limits in 
state-issued permits are not federally enforceable because the permits 
expire. The state then issued permanent Administrative Orders to 
culpable sources in nonattainment areas from 1991 to February of 1996.
    Minnesota's operating permitting program, approved into the state 
SIP on May 2, 1995 (60 FR 21447), includes the term ``Title I 
condition'' which was written, in part, to satisfy EPA requirements 
that SIP control measures remain permanent and requires all state 
permits, not only Title V permits, to contain all applicable 
requirements. A ``Title I condition'' is defined as ``any condition 
based on source-specific determination of ambient impacts imposed for 
the purposes of achieving or maintaining attainment with the national 
ambient air quality standard and which was part of the state 
implementation plan approved by EPA or submitted to the EPA pending 
approval under section 110 of the act * * * .'' The rule also states 
that ``Title I conditions and the permittee's obligation to comply with 
them, shall not expire, regardless of the expiration of the other 
conditions of the permit.'' Further, ``any title I condition shall 
remain in effect without regard to permit expiration or reissuance, and 
shall be restated in the reissued permit.''
    Minnesota has since resumed using permits as the enforceable 
document for imposing emission limitations and compliance requirements 
in SIPs. The SIP requirements in the permit submitted by MPCA are cited 
as ``Title I Condition: State Implementation Plan for SO2,'' 
therefore assuring that the SIP requirements will remain permanent and 
enforceable. In addition, EPA reviewed the state's procedure for using 
permits to implement site-specific SIP requirements and found it to be 
acceptable under both Titles I and V of the Act (July 3, 1997 letter 
from EPA to MPCA). The MPCA has committed to using this procedure if 
the Title I SIP conditions in the permit issued to Xcel and included in 
the SIP submittal need to be revised in the future.

IV. Final Rulemaking Action

    EPA is approving the SIP revision for Xcel's Inver Hills Generating 
Plant located in the city of Inver Grove Heights, Dakota County, 
Minnesota. Specifically, EPA is approving into the SIP only those 
portions of Xcel's Title V permit cited as ``Title I Condition: State 
Implementation Plan for SO2.'' In this same action, EPA is 
removing from the state SO2 SIP the Xcel Inver Hills 
Generating Plant Administrative Order which had first been approved 
into the SO2 SIP on September 9, 1994 and amended on June 
13, 1995 and October 13, 1998. In addition, EPA is removing from the 
state PM SIP the Ashbach Administrative Order which had previously been 
approved into the PM SIP on February 15, 1994.
    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 November 3, 2003 
without further notice unless we receive relevant adverse written 
comments by October 2, 2003. 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 November 3, 2003.

V. Statutory and Executive Orders Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (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 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

[[Page 52113]]

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 action 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 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 a significant regulatory action under 
Executive Order 12866.
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 15 U.S.C. Sec.  272, 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 SIP submissions, 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 a SIP submission 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 SIP 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 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. 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. section 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. 
section 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 November 3, 2003. 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, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur Dioxide.

    Dated: May 23, 2003.
Jerri-Anne Garl,
Acting Regional Administrator, Region 5.

0
Title 40 of the Code of Federal Regulations, chapter I, part 52, is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

0
2. Section 52.1220 is amended by:
0
a. Removing and reserving paragraphs (c)(29)(i)(A) and (c)(35)(i)(B).
0
b. Revising paragraph (c)(41)(i)(A).
0
c. Removing and reserving paragraph (c)(41)(i)(C).
0
d. Adding paragraph (c)(63).
    The revision and addition read as follows:


Sec.  52.1220  Identification of plan.

* * * * *
    (c) * * *
    (41) * * *
    (i) * * *
    (A) Amendments, all effective December 21, 1994, to Administrative 
Orders approved in paragraph (c)(29) of this section for Commercial 
Asphalt, Inc.; Great Lakes Coal and Dock Company; Harvest States 
Cooperatives; LaFarge Corporation; Metropolitan Council; North Star 
Steel Company; Rochester Public Utilities; J. L. Shiely Company.
* * * * *
    (63) On August 9, 2002, the State of Minnesota submitted a revision 
to the Minnesota sulfur dioxide (SO2) State Implementation 
Plan (SIP) for Xcel Energy's Inver Hills Generating Plant (Xcel) 
located in the city of Inver Grove Heights, Dakota County, Minnesota. 
Specifically, EPA is only approving into the SO2 SIP those 
portions of the Xcel Title V operating permit cited as ``Title I 
Condition: State Implementation Plan for SO2''.
    (i) Incorporation by reference.
    (A) AIR EMISSION PERMIT NO. 03700015-001, issued by the Minnesota 
Pollution Control Agency to Northern States Power Company Inver Hills 
Generating Plant on July 25, 2000, Title I conditions only.

[FR Doc. 03-22153 Filed 8-29-03; 8:45 am]
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