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Approval and Promulgation of Implementation Plans: Minnesota: Alternative Public Participation Process
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 1, 2006 (Volume 71, Number 21)]
[Proposed Rules]
[Page 5205-5211]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01fe06-19]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2006-0012; FRL-8027-3]
Approval and Promulgation of Implementation Plans: Minnesota:
Alternative Public Participation Process
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is soliciting comment on the Minnesota Pollution Control
Agency's (MPCA's) use of informing the public of upcoming rulemakings
and public hearings via the internet as opposed to the past practice of
using the newspaper or some other widely accessible printed media.
Comments
[[Page 5206]]
received may impact EPA's approval of the following requests made by
the MPCA.
The EPA is proposing to approve a revision to the Minnesota State
Implementation Plan (SIP) that will establish, pursuant to regulations
on public hearings, an alternative public participation process for
certain SIP revisions. On December 7, 2005, the Minnesota Pollution
Control Agency (MPCA) submitted a request to change certain procedures
involving the public hearing and notification process as it applies to
SIPs. Minnesota held a public hearing on this SIP revision request on
November 17, 2005. In its request, the MPCA has identified a number of
types of SIP revisions that are noncontroversial and for which the
public has historically shown little or no interest. For this limited
number of SIP revisions, the MPCA would, if approved, offer the
opportunity for a public hearing, but would not hold a hearing if one
was not requested. The EPA agrees that the SIP types that have been
identified by the MPCA have historically been noncontroversial and that
offering the public the opportunity to request a public hearing rather
than holding one automatically does not limit or curtail the public
participation process.
Also, EPA is proposing to approve, pursuant to regulations on
public hearings, a revision to the Minnesota SIP that provides that SIP
revisions for which a public hearing was held at the time of the MPCA
rulemaking, and where such public hearing met all the criteria
necessary for a SIP public hearing, including, as discussed in this
proposal, effective electronic notice, and the public was notified that
the rule would be submitted as a SIP revision, no separate public
hearing for SIP purposes would be held. MPCA included this revision to
the Minnesota SIP in its December 7, 2005 request to EPA to revise
certain provisions involving the SIP public hearing and notification
process, and, correspondingly, included this revision in the public
hearing which MPCA held on November 17, 2005. EPA agrees that a public
hearing held at the time of the MPCA rulemaking, which meets the
criteria for a SIP public hearing, including notice requirements,
precludes the need for a separate public hearing for SIP purposes.
DATES: Comments must be received on or before March 3, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2006-0012, by one of the following methods:
? http://www.regulations.gov: 
Follow the on-line instructions for
submitting comments.
? E-mail: mooney.john@epa.gov.
? Fax: (312) 886-5824.
? Mail: John M. Mooney, Chief, Criteria Pollutant Section,
Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, 77
West Jackson Boulevard, Chicago, Illinois 60604.
? Hand Delivery: John M. Mooney, Chief, Criteria Pollutant
Section, (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-
2006-0012. 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. For additional
instructions on submitting comments, go to Section I of the
SUPPLEMENTARY INFORMATION section of this document.
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 Douglas Aburano, Environmental Engineer,
at (312) 353-6960 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Environmental
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J),
U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 353-6960,
aburano.douglas@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'' or
``us'' is used, we mean EPA. This supplementary information section is
arranged as follows:
I. General Information.
A. Does This Action Apply to Me?
B. What Should I Consider as I Prepare My Comments for EPA?
II. What Action Is EPA Taking Today?
A. Automatic Public Hearing Is Not Necessary Because SIP
Revision Is Either Nonsubstantive or Noncontroversial
B. Equivalent Hearing to a Public Hearing
C. Table Summarizing Proposed Alternative Public Hearing Processes
D. Use of Internet Notification of Upcoming Rulemakings and
Public Hearings Versus Using Newspapers
E. Summary
III. Statutory and Executive Order Reviews
I. General Information
A. Does This Action Apply to Me?
This action applies to anyone who would participate in the public
rulemaking process in Minnesota. This proposal may be of particular
interest to parties who prefer notification of MPCA rulemakings and
hearings through printed media, such as the newspaper, versus
electronic media such as postings on the internet.
This proposal does not seek to limit the public participation
process; rather, it is an effort to eliminate unnecessary public
hearings and save MPCA time and resources. MPCA has identified a number
of different types of SIP revisions that have received little, if any,
public interest in the past and, when public hearings were held, no one
[[Page 5207]]
attended these hearings. These public hearings are, therefore, viewed
as consuming both valuable time and resources that the MPCA could
utilize better on other projects. For these types of revisions, the
state has revised its procedures to provide that public hearings will
not automatically be held. Rather, the public will be provided the
opportunity to request a public hearing and a hearing will be held only
if requested. This revision regarding public hearings will not affect
the public's ability to submit written comments on any SIP revision.
Also, MPCA has requested that when a public hearing that meets
specific requirements has already been held in the state that this
would be found to be the equivalent of a SIP public hearing.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or
all of the information that you claim to be CBI. For CBI information in a
disk or CD-ROM that you mail to EPA, 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 claimed as CBI). In addition to one
complete version of the comment that includes 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 public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
? Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
? Follow directions--The EPA may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
? Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
? Describe any assumptions and provide any technical
information and/or data that you used.
? If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
? Provide specific examples to illustrate your concerns, and
suggest alternatives.
? Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
? Make sure to submit your comments by the comment period
deadline identified.
3. Additional Instructions for Specific Comments. EPA is soliciting
specific comments on MPCA's use of the internet to inform the public of
upcoming rulemakings and public hearings. In the past, before computer
usage was as widespread as it is today, states would inform the public
of upcoming public hearings by placing advertisements in the newspaper.
Now that the use of computers and the internet is considered
commonplace, we would like feedback on whether it is appropriate to no
longer advertise upcoming rulemakings and public hearings in a printed
format and to shift to an all electronic notification through use of
internet publication. Additional information regarding these practices
will follow in this notice. It is important we receive comments on this
aspect of proposal because it may impact our proposed approval of the
alternative public hearing processes submitted by MPCA.
II. What Action Is EPA Taking Today?
EPA is proposing to, under 40 CFR 51.102(g), approve an alternative
public participation process that would apply to certain SIP revisions
in the state of Minnesota. The goal of this new process is to preserve
time and resources of the MPCA by eliminating automatic public hearings
for the types of SIP revisions that have historically generated little,
if any, public interest. This process, however, preserves the
opportunity for the public to request a SIP public hearing.
Currently, 40 CFR 51.102 and Clean Air Act section 110(a)(2) and
110(l) require the state to hold public hearings for all SIP revisions
prior to submitting such revisions to EPA for approval. This is true
for all SIPs regardless of how minor the action or how little public
interest has been expressed on the SIP revision under consideration.
Under federal regulations found at 40 CFR 51.102(g)(2), alternative
procedures may be approved provided they still ensure adequate public
notification and public participation.
On December 7, 2005, the MPCA requested that its SIP be amended to
incorporate alternative public participation procedures into the
Minnesota SIP. The MPCA has identified limited types of SIP revisions
that, historically, have received little, if any, public interest and
when public hearings have been held for these SIP revisions, no one
attended. For these types of SIP revisions, MPCA would instead offer
the opportunity for a public hearing. Under this alternative method of
public participation, only one request would be necessary and a public
hearing would be held.
MPCA has also requested that when a state public hearing has been
held on an MPCA rulemaking, that can be considered the equivalent of a
SIP public hearing, when measured against the criteria for a SIP public
hearing as provided at 40 CFR 51.102(d)-(f) [see the discussion on the
use of electronic notification of rulmakings and public hearing in
section II. C. of this notice], and where the public was notified that
such rule would be submitted as a SIP revision, then a public hearing
for SIP purposes only need not be held.
Included in MPCA's SIP amendment request were two exhibits. Exhibit
1 is a table describing the various types of SIP submittals that are
made by the state. In the table, each SIP revision category is
described and a reason is given why a public hearing should
automatically be held or why an automatic public hearing is not
necessary but the opportunity to request a public hearing still exists.
The phrase ``Administrative Permit Amendments'' is used in Exhibit 1
and Exhibit 2 identifies how that phrase is defined by Minnesota Rules.
While Exhibit 1 describes all of the various SIP revisions that
MPCA might make, for the purposes of this rulemaking we will discuss
only: (1) the categories for which MPCA is requesting that public
hearings would be held only if requested and (2) the category for which
MPCA believes the equivalent of a SIP public hearing has already been
held which obviates the need for a public hearing for SIP purposes only.
A. Automatic Public Hearing Is Not Necessary Because SIP Revision Is
Either Nonsubstantive or Noncontroversial
In these instances, MPCA indicates that the public will have the
opportunity to request a public hearing. The MPCA will schedule a
tentative hearing, but stating in the public notice document (which is
published in the Minnesota State Register in an online format only)
that the hearing will not be held if there are no affirmative requests
for it to be held.
1. Purely Administrative Changes--MPCA gives the examples of
correcting typographical or grammatical errors. There is a presumption
that this is not a change that would be of public concern as it is not
substantive.
[[Page 5208]]
2. De minimis change to a ``secondary'' compliance requirement--
Here, MPCA defines ``secondary'' requirement as a requirement that
supports a ``primary'' requirement for a National Ambient Air Quality
Standard (NAAQS). ``Primary'' requirements include, but are not limited
to, restrictions such as an emission limit or fuel usage limit. An
example of de minimis change to a ``secondary'' requirement could
include, a change to a monitoring or testing method that is within the
scope of the method and does not adversely impact the accuracy or
precision of the method (e.g., increasing sample volume above the
minimum required by the method in order to ensure an adequate detection
limit is achieved.) There is a presumption of no public interest in
these types of SIP revisions because the changes described here are
``de minimis'' and should not adversely affect compliance with the
primary NAAQS.
3. Changes categorized as ``administrative amendments'' under
MPCA's operating permit rules--MPCA included, as Exhibit 2, the portion
of the Minnesota Rules that define ``administrative amendments.'' Minn.
R. 7077.1400, subp. 1, as reproduced below, defines the term
``administrative amendments'' as including the following actions:
? An amendment to correct a typographical error;
? An amendment to change the name, mailing address, or
telephone number of any person identified in the permit, or that
reflects a similar minor administrative change at the permitted
facility. A change in the stationary source's location of operation is
not covered by this item;
? An amendment requiring the permittee to comply with
additional, more frequent, or expanded, testing, monitoring,
recordkeeping, or reporting requirements;
? An amendment to eliminate monitoring, recordkeeping, or
reporting requirements if: (1) The requirements are rendered
meaningless because the only emissions to which the requirements apply
will no longer occur; (2) the change is to eliminate one validated
reference test method for a pollutant and source category in order to
add another; (3) the requirements are redundant to or less strict than
other existing requirements; (4) the requirements are technically
incorrect and their elimination does not affect the accuracy of the
data generated or of the monitoring information recorded or reported;
or, (5) the piece of equipment to which the monitoring, record keeping,
or reporting requirement applies no longer exists or has been
permanently disabled from use at the stationary source.
? An amendment reflecting a change in ownership or
operational control of a stationary source where the agency determines
that no other change in the permit is necessary, provided that a
written agreement containing a specific date for transfer of permit
responsibility, coverage, and liability between the current and new
permittee has been submitted to the agency;
? An amendment to incorporate into a permit the requirements
from preconstruction review permits issued by the agency, incorporate
into a permit the requirements from standards adopted under Code of
Federal Regulations, title 40, part 63, as amended (National Emission
Standards for Hazardous Air Pollutants for Source Categories), or to
lower the plantwide emission limits in permits with Plantwide
Applicability Limits to reflect the impact of standards adopted under
Code of Federal Regulations, title 40, part 63, as amended;
? An amendment to clarify the meaning of a permit term;
? An amendment to extend a deadline in a permit by no more
than 120 days, provided that the agency may only extend a deadline
established by an applicable requirement described in part 7007.0100,
subpart 7, items A to K, if the agency has been delegated authority to
make such extensions by the administrator. Notwithstanding the previous
sentence, the agency may do an administrative amendment to extend a
testing deadline in a permit up to 365 days if the agency finds that
the extension is needed to allow the permittee to test at worst case
conditions as required by part 7017.2025, subpart 2;
? An amendment to remove any condition from a permit which
was based on an applicable requirement that has been repealed, but only
if the permit condition: (1) Is neither required nor replaced by
another applicable requirement; and, (2) was not established for a
specific facility to protect human health and the environment, to
prevent pollution, as a mitigation measure in an environmental impact
statement, or to obtain a negative declaration in an environmental
assessment worksheet;
? An amendment to correct or update a citation to an
applicable requirement where the corresponding permit condition is not
changed; and,
? An amendment to include operating conditions that ensure
that waste combustors emit mercury at less than 50 percent of the
applicable standard.
These ``administrative amendments'' either do not substantively
change the SIP or they actually strengthen the SIP (e.g., require more
frequent testing, reporting or recordkeeping) and are not expected to
generate public interest.
4. Unit or plant permanently shut down--In this case, all SIP
conditions have become obsolete because the unit or facility no longer
exists and these SIP conditions no longer apply. We agree that if the
unit or facility no longer exists, an automatic public hearing is not
necessary to remove those SIP conditions that no longer apply.
5. Non-controversial update to an existing maintenance plan--This
would be a ``technical change'' (e.g., 10-year update to a maintenance
plan) with no substantive compliance or inventory changes.
6. Incorporation of federal rule by reference into state rule--In
these cases, the federal rules have already been through public notice
and comment. Also, the state's incorporation by reference is likely to
be in response to a Federal Register noticed delegation or a memorandum
of agreement that dictates that MPCA must incorporate the rule in order
to administer the federal program.
7. Rulemaking where a state public hearing has been offered but no
one was interested--For some rulemakings, MPCA will hold non-mandatory
meetings to discuss the merits of the rulemaking and to invite comment
on draft or proposed rule language when ready. At the commencement of
every rulemaking, state law requires MPCA to publish a Notice of
Request for Comments (the State Register is currently published online
only). This occurs before a rule has been drafted and is intended to
inform potentially interested persons of the likely subject matter of
the rule that the MPCA is considering. The Notice is published in the
State Register (which is available only via the Internet), posted on
the MPCA's website and physically mailed to all persons that have
previously requested to be kept informed of such proposals. The Notice
does not specify meeting dates but invites public participation generally.
During the public participation process, requests for a state
public hearing (different than a SIP public hearing) can be made. If
any request for a state public hearing is made, then MPCA has committed
to hold a public hearing on the SIP because public interest has been
expressed. However, if no requests for a state public hearing are made
or if such requests are withdrawn,
[[Page 5209]]
then a SIP public hearing will only be held if requested.
B. Equivalent Hearing to a Public Hearing
In these instances, a public hearing that would meet the criteria
in 40 CFR 51.102(d)-(f) for a SIP public hearing [see the discussion on
the use of electronic notification of rulmakings and public hearing in
section II.C. of this notice]
has already been held as part of the
procedure for some other MPCA action. Minnesota has requested that we
approve this process under 40 CFR 51.102(g) as equivalent to the public
hearing requirement in 40 CFR 51.102. In the past, the state has held
separate SIP public hearings to satisfy the requirements of the Clean
Air Act, specifically noting that the materials available for the
public to comment on would be submitted for inclusion in the SIP. MPCA
has noted that in the future if a state public hearing will be held,
MPCA will include language in rule proposal notices that specifies which
rule changes will be submitted to EPA as a SIP revision. If this is done,
the state public hearing would also serve as the SIP public hearing.
C. Table Summarizing Proposed Alternative Public Hearing Processes
Below is a table summarizing the hearing procedures for SIP
submittals for the state of Minnesota under this new process.
Summary Table of SIP Types
----------------------------------------------------------------------------------------------------------------
Category Public participation on process
----------------------------------------------------------------------------------------------------------------
(1) Purely administrative--e.g., correction of Opportunity to request hearing.
typographical or grammatical error.
(2) De minimis change to a ``secondary'' compliance Opportunity to request hearing.
requirement. ``Secondary'' means that the requirement
supports a primary requirement NAAQS related
restriction such as an emission limit or fuel usage
limit.
(3) Changes categorized as ``administrative Opportunity to request hearing.
amendments'' under MPCA's operating permit rules (see
Exhibit 2; Minn. R. 7007.1400) and see 40 CFR Sec.
70.7(d)(3)).
(4) Unit or plant permanently shut down--all SIP Opportunity to request hearing.
conditions have become obsolete (e.g., Continental
Nitrogen--no longer operates the boilers that were the
only regulated units in its Admin Order).
(5) Addition or modification of emission unit to Mandatory SIP hearing.
facility with SIP conditions with no overall increase
in emissions. [Amendment of a Permit or Administrative
Order that is part of SIP].
(6) Addition or modification of emission unit to Mandatory SIP hearing.
facility with SIP conditions with overall increase in
emissions. [Involves amendment of a Permit or
Administrative Order that is part of SIP].
(7a) Non-controversial update to an existing Opportunity to request hearing.
maintenance plan that is a ``technical change;'' or 10-
year update to maintenance plan with no substantive
compliance or inventory changes.
(7b) Update to an existing maintenance plan that Mandatory SIP hearing.
changes the compliance scheme, including 10-year
update with compliance or inventory changes. Also any
update that involves a known controversy.
(8) Redesignation requests............................. Mandatory SIP hearing.
(9) New Plans (e.g., PM2.5, Ozone, Regional Haze)...... Mandatory SIP hearing.
(10a) Rulemaking that has been the subject of a formal State hearing would serve as the SIP public hearing.
state public hearing. Minnesota will include language
in rule proposal notices that specifies which rule
changes will be submitted to EPA as a SIP revision.
[Formal public hearing before an ALJ--Minn. Stat. Sec.
14.14].
(10b) Rulemaking where non-mandatory stakeholder Opportunity to request hearing.
meetings are convened and the MPCA receives no
requests for a formal public hearing on the proposed
rule (or receives requests but all requests are
withdrawn in a timely manner).
(10c) Rulemaking where non-mandatory stakeholder Mandatory SIP hearing.
meetings are convened and the MPCA receives one or
more requests for a formal public hearing on the
proposed rule (and if requests withdrawn, not done so
in time for cancellation of the public hearing).
(10d) Rulemaking where stakeholder meetings were not Mandatory SIP hearing.
held or where meetings were too informal or selective.
If the rule is potentially of interest in the SIP
context but for some reason the type of meeting in
11(b) was not held, a SIP-specific meeting should be
held. This might occur if response to the rulemaking
was minimal but the rule is part of a larger SIP plan
and in that context may have special significance to a
specific state action.
(11) Incorporation of federal rule by reference into Opportunity to request hearing.
state rule.
----------------------------------------------------------------------------------------------------------------
D. Use of Internet Notification of Upcoming Rulemakings and Public
Hearings Versus Using Newspapers
EPA is particularly interested in your opinion on the use of
electronic notification, via the internet, of rulemakings and public
hearings. 40 CFR 51.102(d)-(f) describe the specific requirements
states must meet in conducting public hearings for SIP submittals.
However, 40 CFR 51.102(g) provides that alternative procedures may be
approved provided they still ensure adequate public notification and
public participation. The following provisions of 40 CFR 51.102(d) may
be impacted by the use of electronic notice:
(d) Any hearing required by paragraph (a) of this section will be
held only after reasonable notice, which will be considered to include,
at least 30 days prior to the date of such hearing(s):
(1) Notice given to the public by prominent advertisement in the
area affected announcing the date(s), time(s), and place(s) of such
hearing(s);
(2) Availability of each proposed plan or revision for public
inspection in at least one location in each region to which it will
apply, and the availability of each compliance schedule for public
inspection in at least one location in the region in which the affected
source is located.
Currently, the MPCA does not use printed media to inform the
general public of upcoming rulemakings or public hearings. This is
different from the more common and accepted practice of states
publishing notices in newspapers, or other widely available printed
media, in the area affected by the rulemaking. In the past, the MPCA
would use the newspaper and the State Register as a means of publishing
such public notices. MPCA has discontinued using newspaper notices and,
as of July 1, 2004, the Minnesota State Register is no longer printed
in a hardcopy format and can only be accessed on the internet. The
Minnesota State Register does offer an additional tailored subscription
service but there is a $180 annual fee associated with this service.
Access to the Minnesota State Register is otherwise free assuming a
person already has access to the internet.
[[Page 5210]]
At the beginning of the rulemaking process, MPCA will publish a
Notice of Request for Comments in the Minnesota State Register which is
only available online. At this point in time, a rule or rule language
has not yet been drafted and the Notice of Request for Comments serves
to inform potentially interested parties of the likely subject matter
of the rule that MPCA is considering. This notice also appears on the
MPCA's website and notification is also mailed to those parties that
have expressed interest in rulemakings of this type. This initial
notice helps generate a more extensive list of interested parties than
the MPCA may already have. In many cases the MPCA will invite these
parties to meetings to discuss the merits of MPCA's rulemaking and to
comment on draft or proposed rule language when ready.
In past practice, the MPCA would have published these notices in
the Minnesota State Register when it was in print and the Minnesota
State Register was available at any public library. Copies of draft or
proposed rule language would be available at MPCA offices.
It is MPCA's current practice to then publish a Notice of Intent to
Adopt online in the State Register. It is at this point the rule, as
well as a detailed statement of basis, is now made available on the
MPCA's Web site for public review and comment.
The argument can be made that, because our society is now highly
computerized, making all of these documents available electronically is
as accessible to the public, if not more so, than it was in the past
when these documents were actually printed. For example, in the past if
someone was interested in environmental rules he or she could go to the
library to read the State Register. Now that same person can go to the
same library and access the State Register online to view the same type
of information once carried in the printed version of the Minnesota
State Register. Since the use of home computers and access to the
internet is widespread, a person can now access the Minnesota State
Register from home whether they live in Minnesota or not.
We would like your comments on whether electronic notification of
upcoming rulemakings and public hearings is an acceptable alternative
to printed notice which ensures public notice and participation. It is
important for us to hear your comments now as we will consider all of
them before rendering a final decision on this matter and we will not
be reproposing on this in the future.
E. Summary
In summary, we are proposing to approve under 40 CFR 51.102(g)
MPCA's request to allow the above-identified types of SIP revisions to
forego automatic public hearings. Instead the public would be offered
the opportunity to request a public hearing on these SIP revisions.
Approval of this alternative public participation process is allowed
under the Code of Federal Regulations Title 40 Part 51 at 51.102(g). We
believe that the requirements found in 40 CFR 51.102(g) have been met.
Sections 110(a)(2) and 110(l) of the Clean Air Act require public
hearings on all SIP revisions before they are submitted to the EPA. We
believe that the process that MPCA has submitted for approval preserves
the opportunity for the public to request the same public hearing and
does not curtail the public participation process. Additionally, where
MPCA provides a state public hearing that meets the requirements of
51.102(d)-(f), including effective electronic notice [see the
discussion on the use of electronic notification of rulemakings and
public hearing in section II. C. of this notice], and notifies the
public that the rule changes will be submitted as a SIP revision, then
such process is consistent with 40 CFR 51.102 and can be approved under
40 CFR 51.102(g). We are also soliciting specific comments on the use
of electronic notice of MPCA rulemakings and hearings. Public comments
on the use of electronic notice of hearings and rulemakings may impact
the EPA's approval of the proposed alternative public hearing processes.
III. Statutory and Executive Order Reviews.
Executive Order 12866; Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, September 30, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget.
Paperwork Reduction Act
This proposed 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.).
Regulatory Flexibility Act
This proposed action merely proposes to approve state law as
meeting Federal requirements and imposes no additional requirements
beyond those imposed by state law. Accordingly, the Administrator
certifies that this proposed 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.).
Unfunded Mandates Reform Act
Because this rule proposes to approve 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 (Pub. L. 104-4).
Executive Order 13132 Federalism
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 proposes to approve 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.
Executive Order 13175 Consultation and Coordination With Indian Tribal
Governments
This proposed 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 (59 FR 22951, November 9, 2000).
Executive Order 13045 Protection of Children From Environmental Health
and Safety Risks
This proposed 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.
Executive Order 13211: Actions That Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy action,'' this action
is also not subject to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply,
[[Page 5211]]
Distribution, or Use'' (66 FR 28355, May 22, 2001).
National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), 15 U.S.C. 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 impractical. In
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the Clean Air 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 program submission that otherwise satisfies the provisions of the
Clean Air Act. Therefore, the requirements of section 12(d) of the NTTA
do not apply.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations.
Dated: January 19, 2006.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. E6-1367 Filed 1-31-06; 8:45 am]
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