[Federal Register Volume 73, Number 106 (Monday, June 2, 2008)]
[Rules and Regulations]
[Pages 31366-31368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12222]



40 CFR Part 52

[EPA-R05-OAR-2007-1132; FRL-8573-3]

Approval and Promulgation of Air Quality Implementation Plans; 
Minnesota; Interstate Transport of Pollution

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.


SUMMARY: EPA is approving revisions to the Minnesota State 
Implementation Plan (SIP) for ozone and particulate matter (PM) which 
address the ``good neighbor'' provisions of the Clean Air Act (CAA). 
These provisions require each state to submit a SIP that prohibits 
emissions that adversely affect another state's air quality. The 
Minnesota Pollution Control Agency (MPCA) has adequately addressed the 
four distinct elements related to the impact of interstate transport of 
air pollutants. These include prohibiting significant contribution to 
nonattainment of the National Ambient Air Quality Standards (NAAQS) in 
another state, interference with maintenance of the NAAQS in another 
state, interference with plans in another state to prevent significant 
deterioration of air quality, and interference with plans in another 
state to protect visibility.

DATES: This rule is effective on August 1, 2008, unless EPA receives 
adverse written comments by July 2, 2008. If EPA receives adverse 
comments, EPA will publish a timely withdrawal of the rule in the 
Federal Register and inform the public that the rule will not take 

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-1132 by one of the following methods:
     http://www.regulations.gov: Follow the online instructions 
for submitting comments.
     E-mail: [email protected].
     Fax: (312) 886-5824.
     Mail: Douglas Aburano, Acting Chief, Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
     Hand Delivery: Douglas Aburano, Acting Chief, Criteria 
Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 
Such deliveries are only accepted during the Regional Office normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information. The Regional Office official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding 
Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2007-1132. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. 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. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Region 5, Air and Radiation Division, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. We recommend that you telephone Charles Hatten, Environmental 
Engineer, at (312) 886-6031 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Charles Hatten, Environmental 
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-6031, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This section provides 
additional information by addressing the following questions:

Table of Contents

I. Background
II. What is being addressed in this document?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, EPA promulgated revised NAAQS for ozone and PM. 
For ozone, EPA adopted a standard of 0.08 ppm over an 8-hour averaging 
period (62 FR 38856). For PM, EPA added new 24-hour and annual 
standards for particles less than or equal to 2.5 micrometers in 
diameter (PM2.5) (62 FR 38652). Section 110(a)(1) of the CAA 
requires states to submit new SIPs that provide for the implementation, 
maintenance, and enforcement of a new or revised standard within three 
years after promulgation of such standard, or within such shorter 
period as EPA may prescribe. Section 110(a)(2) lists the elements that 
such new SIPs must address, including section 110(a)(2)(D)(i), which 
applies to interstate transport of certain emissions. While section 
110(a)(1) imposes the obligation upon states to make a SIP submission 
for a new or revised NAAQS, the contents of that submission may vary 
depending upon the facts and circumstances related to the specific 
    On April 25, 2005, EPA made a finding that states had failed to 
submit SIPs to satisfy the requirements of section 110(a)(2)(D)(i) of 
the CAA for the 8-hour ozone and PM2.5 NAAQS. See 70 FR 
21147. This finding started a 2-year clock for promulgation by EPA of a

[[Page 31367]]

Federal Implementation Plan (FIP), in accordance with section 
110(c)(1), for any state that did not submit a SIP meeting the 
requirements of section 110(a)(2)(D)(i) for both the 8-hour ozone and 
PM2.5 NAAQS. If, prior to that time, a state made a 
submission to meet the requirements of section 110(a)(2)(D)(i) and EPA 
approved the submission, EPA would not be required to promulgate a FIP 
for that state.

II. What is being addressed in this document?

    EPA is approving the SIP revision submitted by MPCA on October 23, 
2007, to address the requirements of section 110(a)(2)(D)(i) of the 
CAA. This section requires each state to submit a SIP which prohibits 
emissions that could adversely affect the air quality in another state. 
The SIP must prevent sources in the state from emitting pollutants in 
amounts which will: (1) Contribute significantly to nonattainment of 
the NAAQS in another state, (2) interfere with maintenance of the NAAQS 
in another state, (3) interfere with the plans in another state to 
prevent significant deterioration of air quality, and (4) interfere 
with the plans of another state to protect visibility.
    EPA issued a guidance memorandum (Interstate Transport Guidance) on 
August 15, 2006, relating to SIP submissions to meet the requirements 
of section 110(a)(2)(D)(i) for the 8-hour ozone and PM2.5 
NAAQS.\1\ As discussed below, Minnesota's analysis of its SIP with 
respect to the statutory requirements is consistent with this guidance.

    \1\ See memorandum from William T. Harnett, Director, Air 
Quality Policy Division, Office of Air Quality Planning and 
Standards, U.S. EPA, entitled ``Guidance for State Implementation 
Plan (SIP) Submissions to Meet Current Outstanding Obligations Under 
Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' dated August 15, 2006.

    The MPCA addressed the first two elements, relating to monitor 
interference with attainment and maintenance of the NAAQS, by asserting 
that Minnesota is covered by the FIP for the Clean Air Interstate Rule 
(CAIR). In the CAIR, EPA concluded that states meet their section 
110(a)(2)(D)(i) obligations to address the ``significant contribution'' 
and ``interference with the maintenance'' requirements by complying 
with the CAIR requirements, either by submitting an approvable CAIR SIP 
or relying on the CAIR FIP.\2\ Consequently, Minnesota will not need to 
submit a separate SIP revision to satisfy the section 110(a)(2)(D)(i), 
since they are relying on the CAIR FIP. Minnesota is covered by the 
CAIR due solely to its influence on PM2.5 nonattainment in 
Chicago (Illinois), and was not determined by EPA to impact ozone 
nonattainment in any area.

    \2\ See page 4 in EPA's Interstate Transport Guidance, 
referenced in Footnote 1.

    The third element MPCA addressed was prevention of significant 
deterioration (PSD) of air quality in another state. All new sources in 
Minnesota are subject to the federal PSD permitting program. Minnesota 
has a delegated PSD program and therefore has been given the authority 
by EPA to implement and enforce the federal PSD program. The PSD 
program satisfies the requirement of section 110(a)(2)(D)(i) 
prohibiting interference with measures required to meet the 
implementation plan for any other state related to PSD. It should be 
noted that the entire state of Minnesota is attaining both the 8-hour 
ozone and PM2.5 NAAQS.
    The fourth required element, relating to Minnesota's impact on 
visibility impairment in another state, will be addressed by 
Minnesota's regional haze SIP. MPCA concurs with EPA in concluding that 
it is currently premature to determine whether or not SIPs for 8-hour 
ozone or PM2.5 contain adequate provisions to prohibit 
emissions that interfere with measures in SIPS developed by other 
states to address visibility impairment.\3\ MPCA is currently accepting 
comments on a separate SIP revision that will fulfill Minnesota's 
requirements under EPA's regional haze rule and address the section 
110(a)(2)(D)(i) requirement with respect to visibility. The State is on 
a schedule to submit this revision to EPA in July of 2008. Until this 
SIP is submitted, an accurate assessment regarding the impact of 
emissions and control measures on other states' SIPs cannot be made. 
When EPA takes action on Minnesota's regional haze SIP, EPA will also 
make a determination regarding the adequacy of the SIP in addressing 
section 110(a)(2)(D)(i) with respect to visiblilty.

    \3\ See pages 9 and 10 in EPA's Interstate Transport Guidance, 
referenced in Footnote 1.

    Minnesota placed the section 110(a)(2)(D)(i) SIP on notice on 
September 4, 2007, and offered the opportunity for a public hearing. No 
public hearing was requested and no comments were received.
    With this action, the non-regulatory text in 40 CFR 52.1220(e) is 
revised to reflect that MPCA addressed the elements of the CAA section 
110(a)(2)(D)(i) submittal.

III. What action is EPA taking today?

    EPA is approving this revision submitted by Minnesota and is 
revising 40 CFR 52.1220(e) to reflect that the MPCA has adequately 
addressed the required elements of the CAA section 110(a)(2)(D)(i) SIP. 
Please note that if EPA receives adverse comments on part of this rule, 
and if that part can be severed from the remainder of the rule, EPA may 
adopt as final those parts of the rule that are not the subject of an 
adverse comment.
    We are 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 
written comments are filed. This rule will be effective August 1, 2008 
without further notice unless we receive relevant adverse written 
comments by July 2, 2008. 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 August 1, 2008.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a

[[Page 31368]]

substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    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 action 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. 
    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 August 1, 2008. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, Ozone, Particulate matter, and Volatile organic compounds.

    Dated: May 21, 2008.
Walter W. Kovalick, Jr.
Acting Regional Administrator, Region 5.

For the reasons stated in the preamble, part 52, chapter I, of title 40 
of the Code of Federal Regulations is amended as follows:


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

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

Subpart Y--Minnesota

2. In Section 52.1220 the table in paragraph (e) is amended by adding 
an entry in alphabetical order for ``CAA 110(a)(2)(D)(i) SIP-Interstate 
Transport'' to read as follows:

Sec.  52.1220  Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Minnesota Nonregulatory Provisions
                                      Applicable       State submittal
    Name of Nonregulatory SIP        geographic or      date/effective    EPA approved date        Comments
            Provision             nonattainment area         date
                                                  * * * * * * *
CAA 110(a)(2)(D)(i) SIP-          Statewide.........           10/23/07  06/02/08 [insert
 Interstate Transport.                                                    FR page number
                                                                          where the
                                                                          document begins].
                                                  * * * * * * *

[FR Doc. E8-12222 Filed 5-30-08; 8:45 am]