[Federal Register Volume 68, Number 120 (Monday, June 23, 2003)]
[Proposed Rules]
[Pages 37110-37112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15762]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[MI 82-01-7291; FRL-7517-4]
Clean Air Act Proposed Approval of Operating Permit Program
Revisions; Michigan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to approve revisions to Rule (R) 336.1216
of Michigan's title V air operating permit program. Michigan has not
yet promulgated the rule revision which the State has submitted in
draft for EPA action; however, if Michigan finalizes the revision as
drafted, the permit shield provisions will no longer apply to certain
administrative permit amendments. This rule revision would resolve the
deficiency identified in EPA's Notice of Deficiency (NOD), published in
the Federal Register on December 11, 2001.
The EPA is proposing to approve Michigan's operating permit program
rule revision at the same time that Michigan is processing the rule
revision. The EPA will finalize its approval of Michigan's program
revision if Michigan promulgates and submits a final rule identical in
substance to the draft rule it is processing.
DATES: Written comments on this proposed rule must be received on or
before July 23, 2003.
ADDRESSES: Send comments to: Robert Miller, Chief, Permits and Grants
Section, Air Programs Branch (AR-18J), EPA Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
Copies of the State's submittal are available for inspection at the
following location: EPA Region 5, Air and Radiation Division, 77 West
Jackson Boulevard, Chicago, Illinois 60604. Please contact the person
listed below to arrange a time to inspect the submittal.
FOR FURTHER INFORMATION CONTACT: Beth Valenziano, Permits and Grants
Section, Air Programs Branch, 77 West Jackson Boulevard (AR-18J),
Chicago, Illinois 60604, (312) 886-2703, [email protected].
SUPPLEMENTARY INFORMATION: This section provides additional information
by addressing the following:
I. What is the history of Michigan's title V operating permit
program?
II. What is the program revision that EPA is proposing to approve?
III. What is involved in this proposed action?
IV. Statutory and Executive Order reviews
I. What Is the History of Michigan's Title V Operating Permit Program?
As required under Subchapter V of the Clean Air Act (Act), EPA has
promulgated regulations that define the minimum elements of an
approvable state operating permit program and the corresponding
standards and procedures by which EPA will approve, oversee, or
withdraw approval of state operating permit programs (see 57 FR 32250
(July 21, 1992)). These regulations are codified at 40 Code of Federal
Regulations (CFR) part 70. Pursuant to Subchapter V, generally known as
title V, states and local permitting authorities developed, and
submitted to EPA, programs for issuing operating permits to all major
stationary sources and to certain other sources.
The Michigan Department of Environmental Quality submitted the
State's title V operating permit program for EPA approval on May 16,
1995, with supplements submitted on July 20, 1995, October 6, 1995,
November 7, 1995, and January 8, 1996. The EPA granted interim approval
of the Michigan title V program on January 10, 1997 (62 FR 1387), and
the program became effective on February 10, 1997. Subsequently, based
on the interim approval corrections that the State submitted on June 1,
2001 and September 20, 2001, EPA granted full approval of the Michigan
title V program, effective November 30, 2001. The EPA published the
full program approval in the Federal Register on December 4, 2001 (66
FR 62949).
[[Page 37111]]
Pursuant to its authority at 40 CFR 70.10(b), EPA published an NOD
for Michigan's title V operating permit program on December 11, 2001
(66 FR 64038). The NOD was based upon EPA's finding that Michigan's
regulation granting a permit shield for certain administrative permit
amendments did not meet federal requirements for program approval. On
May 7, 2003 and May 21, 2003, Michigan submitted to EPA a revision to
its title V program correcting this program deficiency. As discussed in
detail below, EPA is proposing to approve Michigan's title V program
revision. Final approval of this program revision will resolve the NOD.
II. What Is the Program Revision That EPA Is Proposing To Approve?
Michigan is in the final stages of revising its title V permit
modification rule, R 336.1216, to remove the permit shield provision
for certain types of administrative permit amendments. Although
Michigan's rule revision is not yet final, the State's May 7, 2003
submittal included the draft rule that is awaiting review by Michigan's
Joint Legislative Committee on Administrative Rules. The public comment
period on the draft rule ended on November 6, 2002, and Michigan did
not receive any adverse comment on the administrative amendment rule
revision. Michigan expects that the rule will be finalized in the
summer of 2003, at which time the State will submit the final rule to
EPA.
Michigan's draft administrative permit amendment rule is consistent
with 40 CFR 70.7(d)(4), which does not allow a permit shield for the
types of changes described below. The permit shield provisions at 40
CFR 70.6(f) offer enforcement protection in certain prescribed
situations. Michigan's draft revised R 336.1216(1)(b)(iv) states: ``The
permit shield provided under R 336.1213(6) does not extend to
administrative amendments made pursuant to subdivision (a)(i) to (iv)
of this subrule.'' R 336.1216(1)(a)(i) through (iv) allow
administrative amendments for the following types of changes: a change
that corrects typographical errors; a change in the name, address or
phone number of the responsible official or other contact person; a
change that provides for more frequent monitoring and reporting; and a
change in the ownership or operational control of a source where no
other changes to the permit are necessary. These types of
administrative permit amendments are the same as those specified in the
federal rules at 40 CFR 70.7(d)(1)(i)-(iv).
In addition, draft R 336.1216 includes other minor changes to the
State permit modification rule, including changes to the citation
method for Michigan laws, and a clarification to R 336.1216(1)(b)(iii)
regarding the implementation of administrative permit amendment changes
made pursuant to R 336.1216(1)(a)(i) through (iv). This clarification
is consistent with 40 CFR 70.7(d)(3)(iii) and 70.7(e)(2)(v).
III. What Is Involved in This Proposed Action?
The EPA is proposing to approve revisions to R 336.1216 of
Michigan's title V operating permit program at the same time that
Michigan is processing the State's rule revision. Michigan's draft
regulation R 336.1216(1)(b)(iv) is now consistent with 40 CFR
70.7(d)(4). The EPA will finalize its approval of Michigan's program
revision if Michigan promulgates and submits a final rule that is
identical in substance to the draft rule it is processing. Upon final
EPA approval, Michigan's program revision will resolve the program
deficiency identified in EPA's NOD, published on December 11, 2001 (66
FR 64038).
Section 502(i)(2) of the Act and 40 CFR 70.10(b)(3) provide that,
if a state has not corrected a deficiency within 18 months after the
effective date of an NOD, EPA will apply the sanctions under section
179(b) of the Act, in accordance with section 179(a) of the Act. The
sanctions set forth in section 179(b) include a prohibition on highway
funding and an increase in the emission offset requirements under part
D of title I of the Act. Michigan's 18 month sanctions clock expired on
May 30, 2003. However, EPA interprets section 179(a) to mean that
section 179(b) sanctions shall not apply until EPA selects the order in
which sanctions shall apply through notice-and-comment rulemaking. This
interpretation follows the interpretation of section 179(a) set forth
in the title I sanctions rule, which selects the order of sanctions
following certain State Implementation Plan findings under section
179(a). See EPA's proposed title I sanctions rule, 58 FR 51270, 51272
(October 1, 1993); see also EPA's final title I sanctions rule, 59 FR
39832, 39857 (August 4, 1994). The EPA has not yet promulgated the
title V order of sanctions rulemaking, and thus no sanctions go into
effect at this time.\1\
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\1\ As noted in the NOD, EPA is in the process of developing the
title V order of sanctions rule.
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Consistent with EPA's final full approval of Michigan's title V
program (66 FR 62951), this proposed approval does not extend to
sources in Indian Country, as defined in 18 United States Code 1151.
IV. Statutory and Executive Order Reviews
Executive Order 12866; Regulatory Planning and Review
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.
Executive Order 13211; Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
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).
Regulatory Flexibility Act
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.).
Unfunded Mandates Reform Act
Because this action 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 an 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).
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, ``Consultation and Coordination with Indian Tribal
Governments'' (65 FR 67249, November 9, 2000).
Executive Order 13132 Federalism
This action also does not have federalism implications because it
does
[[Page 37112]]
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 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 Act.
Executive Order 13045 Protection of Children from Environmental Health
and Safety Risks
This proposed approval 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.
National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTA), 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 impracticable. In
reviewing program 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 program 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
Act. Therefore, the requirements of section 12(d) of the NTTA do not
apply.
Civil Justice Reform
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.
Governmental Interference With Constitutionally Protected Property
Rights
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.
Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
Congressional Review Act
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 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.
804(2).
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et. seq.
Dated: June 9, 2003.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. 03-15762 Filed 6-20-03; 8:45 am]
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