[Federal Register Volume 62, Number 198 (Tuesday, October 14, 1997)]
[Rules and Regulations]
[Pages 53239-53242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27129]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MN40-03-6988; FRL-5906-3]


Approval and Promulgation of State Implementation Plan; 
Minnesota; Evidentiary Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final action approves the State Implementation Plan (SIP) 
revision submitted by the State of Minnesota. The State's revision 
clarifies the types of testing and monitoring data, including stack and 
process monitoring data, that can be used directly for compliance 
certifications and enforcement.

EFFECTIVE DATE: This final rule is effective November 13, 1997.

ADDRESSES: Copies of the documents relevant to this action are 
available forpublic inspection during normal business hours at the 
following location:U.S. Environmental Protection Agency, Region 5, 
Regulation Development Branch, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.

FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Regulation 
Development Section 2, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. Telephone: (312) 353-6960.

SUPPLEMENTARY INFORMATION:

I. Background

    In 1990, section 114 of the Clean Air Act (Act) was amended to 
require the Administrator of EPA to promulgate rules implementing an 
enhanced monitoring and compliance program for major stationary sources 
of air pollution. EPA determined that certain SIPs may preclude EPA and 
the States from implementing such a program because these SIPs may be 
interpreted to limit the types of testing and monitoring data

[[Page 53240]]

that may be used for determining compliance and establishing 
violations. Therefore, EPA issued a SIP call to those States whose SIPs 
may have limited the types of testing and monitoring data that may be 
used for determining compliance and establishing violations.
    On March 24, 1994, EPA issued a SIP call to the State of Minnesota 
to revise its SIP. As part of the SIP call, EPA provided draft SIP 
language to the State. The SIP call clarified that any monitoring 
approved for the source (and included in a federally enforceable 
operating permit) may form the basis of the compliance certification, 
and that any credible evidence may be used for purposes of enforcement 
in Federal court.
    On April 9, 1997, EPA published a direct final rulemaking approving 
the Minnesota Pollution Control Agency's (MPCA's) SIP revision that was 
made in response to EPA's SIP call. During the 30 day public comment 
period, adverse comments were received from the Minnesota Chamber of 
Commerce, the American Petroleum Institute and the National 
Environmental Development Association.

II. Public Comment/EPA Response

    The following evaluation summarizes each comment received and EPA's 
response to the comment.

Minnesota Chamber of Commerce Comments

    Following is a summary of comments received from the Minnesota 
Chamber of Commerce in a letter dated May 9, 1997 signed by Sherry 
Munyon. After each comment is EPA's response.
    Comment 1: EPA's final ``credible evidence'' rule clearly removes 
any reference to ``presumptively credible'' forms of evidence and 
properly leaves questions of legal admissibility and credibility to 
judicial and administrative tribunals (62 FR 8316 February 24, 1997). 
Therefore, it appears that EPA is set to approve a SIP revision 
containing a rule based on an interpretation to which it no longer 
subscribes.
    Response 1: In writing its rule, the MPCA did not feel that it had 
the authority to create presumptively credible evidence, since the MPCA 
did not feel it had the authority to create judicial ``presumptions.'' 
Therefore, the MPCA simply stated that violations may be based on any 
required monitoring method or any credible evidence. In doing this, the 
MPCA clarifies that its own rules cannot be used to limit a court's 
consideration of any credible evidence of a violation of a MPCA 
standard. This does not create judicial presumptions, nor does it 
conflict with EPA's final Credible Evidence rule.
    Comment 2: If MPCA's rule is incorporated into the SIP, sources 
would then face two different standards regarding the admissibility and 
credibility of evidence.
    Response 2: The EPA believes, contrary to the commentor, that 
approving this SIP revision actually enhances consistency rather than 
creating inconsistency. Since the rule submitted for Federal 
approvability is already adopted at the State level, approving it into 
the SIP would mean that both State and Federal authorities would be 
enforcing the same provisions.

American Petroleum Institute Comments

    Following is a summary of comments received from the American 
Petroleum Institute in a letter dated May 8, 1997 signed by John E. 
Reese. After each comment is EPA's response.
    Comment 1: Because sections 7007.0800 Subpart 6.C.(5) and 7017.0100 
Subparts 1 and 2 of the Minnesota regulations were based on EPA's 
premature March 24, 1994 SIP call, the Minnesota regulations are not 
consistent with the current status of EPA's Enhanced Monitoring 
rulemaking. For example, section 7007.0800 Subpart 6.C.(5) makes 
reference to ``an enhanced monitoring protocol'' even though in 1995 
EPA abandoned the Enhanced Monitoring approach in favor of the 
Compliance Assurance Monitoring (CAM) approach. Thus, the reference to 
``Enhanced Monitoring'' in the Minnesota regulations is likely to cause 
confusion, and should be revised.
    Response 1: By stating that the Minnesota rule, made in response to 
EPA's March 24, 1994 SIP call, is inconsistent with the current status 
of EPA's Enhanced Monitoring Rule, the commentor makes the argument 
that EPA's SIP call is inconsistent with the current status of EPA's 
Enhanced Monitoring Rule. This is not the case. In the EPA's final 
Credible Evidence Revisions rule, EPA has stated that:

EPA's decision to forego the enhanced monitoring approach in favor 
of the CAM proposal has no effect on the basic goals of the SIP 
call, which are to clarify that non-reference test data can be used 
in enforcement actions, and to remove any potential ambiguity 
regarding this data's use for Title V compliance certifications (62 
FR 8314, p. 8327).

    While the commentor is correct in pointing out that MPCA's SIP 
revision does include language in section 7007.0800 Subpart 6.C.5 that 
makes reference to ``an enhanced monitoring protocol,'' EPA does not 
believe that any confusion will arise from the language found in 
Minnesota's rule. The section that contains the reference to the 
enhanced monitoring protocol does not limit the additional methods that 
can be used to demonstrate compliance with, or violation of, a standard 
to only an enhanced monitoring protocol. Also included are, ``any other 
monitoring method incorporated into a permit issued under this 
chapter.'' If only the language pertaining to ``an enhanced monitoring 
protocol'' were included as a revision to the language found in MPCA's, 
a SIP revision might be warranted. However, because there is additional 
language that does not limit using other methods as well, no conflict 
or confusion will arise from mentioning an enhanced monitoring 
protocol.
    Comment 2: EPA's SIP call is invalid. Neither section 110 or any 
other provision of the Clean Air Act requires States to include 
credible evidence provisions in their SIPs. Even if one accepts EPA's 
assertion in the recently promulgated Credible Evidence Rule, 62 FR 
8314 (February 24, 1997), that sections 113(a), 113(e), and 114 of the 
Clean Air Act authorize EPA to use any Credible Evidence to establish 
violations of emissions standards and limitations, those provisions 
speak only to the Administrator, and the courts, not to the States.
    Response 2: EPA's SIP call is valid. The purpose of the SIP call is 
to clarify that non-reference test data can be used in enforcement 
actions, and to remove any potential ambiguity regarding this data's 
use for Title V compliance certifications. In responding to the SIP 
call the MPCA submitted to EPA rule revisions that ensured that the 
Minnesota SIP does not preclude the use, including the exclusive use, 
of any credible evidence or information, relevant to whether a source 
would have been in compliance with applicable requirements if the 
appropriate performance or compliance test or procedures had been 
performed. This is all that is required to be consistent with EPA's 
final Credible Evidence rule.
    Comment 3: The reference to ``Minnesota Statutes'' is incorrect, 
the correct reference is to ``Minnesota Rules.''
    Response 3: EPA recognizes that the codification from the direct 
final Federal Register rule published on April 9, 1997 did incorrectly 
reference ``Minnesota Statutes.'' The new codification correctly 
references ``Minnesota Rules.''

[[Page 53241]]

National Environmental Development Association Comments

    Following is a summary of comments received from the National 
Environmental Development Association in a letter dated May 9, 1997 
signed by Leslie Sue Ritts. After each comment is EPA's response.
    Comment 1: EPA cannot and should not approve State SIP revisions 
during the pendency of judicial review of EPA's credible evidence rule.
    Response 1: The commentor assumes that if EPA's Credible Evidence 
rule is found to be illegal, it follows that Minnesota's rule is also 
illegal and cannot be approved. This is not necessarily the case. If 
EPA's rule is found to be illegal, EPA may not be able to require 
Minnesota to follow the requirements of the SIP call but EPA can still 
approve Minnesota's SIP revision. States can submit, and EPA can 
approve, SIP revisions that exceed Federal requirements at any point in 
time. If it is found that EPA's Credible Evidence rule is found to be 
illegal, this does not prevent EPA from approving MPCA's SIP revision.
    Comment 2: The National Environmental Development Association 
believes that the current rule should be withdrawn because Minnesota's 
rule is clearly based on a version of the enhanced monitoring proposal 
and an EPA ``model rule'' that were withdrawn by EPA in April 1995. 
References to ``presumptive'' credible evidence in the Federal Register 
notice, while also not clear on the face of the Minnesota regulations, 
are also plainly inconsistent with the notion in the final Federal 
credible evidence rule that all monitoring evidence, whatever its 
origin, would be weighed by a trier of fact and to provisions in the 
EPA credible rule that condition the use of credible evidence as 
``relevant to whether a source would have been in compliance with 
applicable requirements if the appropriate performance or compliance 
test or procedure had been performed.'' In addition, references in the 
Federal Register notice to Federal ``enhanced monitoring protocols'' 
and ``model rules'' are obsolete. These will eventually be replaced by 
Federal requirements for ``compliance assurance monitoring'' plans 
under the pending CAM rule which the Federal agency is about to 
finalize.
    Response 2: The MPCA did not base its rule on EPA's model rule. In 
writing its rule, the MPCA did not feel that it had the authority to 
create presumptively credible evidence, since the MPCA did not feel it 
had the authority to create judicial ``presumptions.'' Therefore, the 
MPCA simply stated that violations may be based on any required 
monitoring method or any credible evidence. In doing this, the MPCA 
clarifies that its own rules cannot be used to limit a court's 
consideration of any credible evidence of a violation of a MPCA 
standard. This does not create judicial presumptions, nor does it 
conflict with EPA's final Credible Evidence rule.

III. Final Action

    The comments received were found to warrant no changes from 
proposed to final action on the approval of Minnesota's Evidentiary 
Rule. Therefore, EPA is approving the Evidentiary Rule submitted by the 
MPCA for inclusion in the State's SIP. The approval of this submittal 
into the SIP clarifies the types of testing and monitoring data that 
can be used for compliance demonstrations and enforcement.
    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. 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

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary D. Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from Executive Order 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    This approval does not create any new requirements, but simply 
approves requirements that the State is already imposing. Therefore, 
because the Federal SIP approval does not impose any new requirements, 
the Administrator certifies that it does not have a significant impact 
on any small entities affected. Moreover, due to the nature of the 
Federal-State relationship under the Act, preparation of a flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of the State action. The Act forbids EPA to base its 
actions concerning state plans on such grounds. Union Electric Co. v. 
EPA., 427 U.S. 246, 256-66 (1976); 42 U.S.C. 7410(a)(2).

C. Unfunded Mandates Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must undertake various actions 
in association with any proposed or final rule that includes a Federal 
mandate that may result in estimated costs to state, local, or tribal 
governments in the aggregate; or to the private sector, of $100 million 
or more. This Federal action approves pre-existing requirements under 
State or local law. No new Federal requirements are imposed. 
Accordingly, no additional costs to state, local, or tribal 
governments, or the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a major rule as defined by 5 U.S.C. 
804(2).

E. Petitions for Judicial Review

    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 December 15, 1997. 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)).


[[Page 53242]]



List of Subjects in 40 CFR Part 52

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

    Dated: September 16, 1997.
David A. Ullrich,
Acting Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations 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.

Subpart Y--Minnesota

    2. Section 52.1220 is amended by adding paragraph (c)(44) to read 
as follows:


Sec. 52.1220  Identification of plan.

* * * * *
    (c) * * *
    (44) This revision provides for data which have been collected 
under the enhanced monitoring and operating permit programs to be used 
for compliance certifications and enforcement actions.
    (i) Incorporation by reference.
    (A) Minnesota Rules, sections 7007.0800 Subpart 6.C.(5), 7017.0100 
Subparts 1 and 2, both effective February 28, 1995.
* * * * *
[FR Doc. 97-27129 Filed 10-10-97; 8:45 am]
BILLING CODE 6560-50-F