[Federal Register: January 9, 2008 (Volume 73, Number 6)]
[Proposed Rules]
[Page 1570-1576]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ja08-19]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2007-1043; FRL-8514-4]
Approval and Promulgation of Air Quality Implementation Plans;
Michigan; PSD Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to conditionally approve revisions to
Michigan's State Implementation plan (SIP) to add the prevention of
significant deterioration (PSD) construction permit program under the
Federal Clean Air Act (CAA). This program affects major stationary
sources in Michigan that are subject to or potentially subject to the
PSD construction permit program.
DATES: Comments must be received on or before February 8, 2008.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
[[Page 1571]]
OAR-2007-1043, by one of the following methods:
http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: blakley.pamela@epa.gov.
Fax: (312) 886-5824.
Mail: Pamela Blakley, Chief, Air Permits Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
Hand Delivery: Pamela Blakley, Chief, Air Permits 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-
2007-1043. 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 Laura Cossa,
Environmental Engineer, at (312) 886-0661 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT: Laura Cossa, Environmental Engineer,
Air Permits Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago,
Illinois 60604, (312) 886-0661, cossa.laura@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. What Should I Consider as I Prepare My Comments for EPA?
II. What Is Being Addressed in This Document?
III. What Are the Changes That EPA Is Conditionally Approving?
IV. What Action Is EPA Taking Today?
V. Statutory and Executive Order Reviews
I. What Should I Consider as I Prepare My Comments for EPA?
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
2. 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.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
II. What Is Being Addressed in This Document?
EPA is proposing to conditionally approve revisions to Michigan's
SIP to add the PSD construction permit program. Approval of the
proposed state rules would allow Michigan to obtain a full CAA New
Source Review (NSR) SIP. Current state SIP rules implement the major
NSR permitting program for sources located in counties not attaining
air quality standards, but not the PSD permitting program for sources
located in counties attaining air quality standards. Prior to
Michigan's development of the submitted PSD program, EPA delegated to
Michigan the authority to issue PSD permits through the Federal PSD
rules at 40 CFR 52.21 (via delegation letter dated September 26, 1988).
The new state PSD rules reflect the requirements of CAA 42 Sections
110(a)(2)(c) and 165. The state PSD rules also reflect recent changes
to 40 CFR 51.166, following the June 24, 2005, United States Court of
Appeals for the District of Columbia Circuit ruling on the Federal PSD
and non-attainment NSR regulation revisions. These revisions are
commonly referred to as ``NSR Reform'' regulations, and became
effective on March 3, 2003. Michigan adopted the PSD rules on December
4, 2006. The rules took effect immediately at the state level. The
Michigan Department of Environmental Quality (MDEQ) submitted to EPA a
final request for approval of these rules into the SIP on December 21,
2006. On February 12, 2007, EPA notified the state that the submittal
satisfied the completeness criteria set forth at 40 CFR 51, Appendix V.
III. What Are the Changes That EPA Is Conditionally Approving?
Michigan Air Pollution Control Rules, Part 18, Prevention of
Significant Deterioration of Air Quality, Rules R 336.2801 to R
336.2819 and R 336.2823 (1) to (14).
The following subsections discuss the elements of the proposed
state rules and how they compare to Federal requirements:
R 336.2801 Definitions
Actual Emissions
Michigan has established the definition of ``actual emissions'' in
R
[[Page 1572]]
336.2801(a). This definition is consistent with the definition in 40
CFR 51.166(b)(21).
Baseline Actual Emissions
Michigan has established the definition of ``baseline actual
emissions'' in R 336.2801 (b). This definition is consistent with the
definition in 40 CFR 51.166(b)(47).
Baseline Area
Michigan has established the definition of ``baseline area'' in R
336.2801(c). The definition is consistent with the definition in 40 CFR
51.166(b)(15). The reference to nonattainment area regulations in state
rule R 336.2801(c)(ii)(b) is irrelevant for the purposes of this PSD
SIP submittal.
Baseline Concentration
Michigan has established the definition of ``baseline
concentration'' in R 336.2801(d). This definition is consistent with
the definition in 40 CFR 51.166(b)(13).
Begin Actual Construction
Michigan has established the definition of ``begin actual
construction'' in R 336.2801 (e). This definition is consistent with
the definition in 40 CFR 51.166(b)(11).
Best Available Control Technology or ``BACT''
Michigan has established the definition of ``BACT'' in R
336.2801(f). This definition is consistent with the definition in 40
CFR 51.166(b)(12).
Building, Structure, Facility, or Installation
Michigan has established the definition of ``building, structure,
facility, or installation''--in R 336.2801 (g). This definition is
consistent with the definition in 40 CFR 51.166(b)(6).
Clean Coal Technology
Michigan has established the definition of ``clean coal
technology'' in R 336.2801 (h). This definition is consistent with the
definition in 40 CFR 51.166(b)(33).
Clean Coal Technology Demonstration Project
Michigan has established the definition of ``clean coal technology
demonstration project'' in R 336.2801(i). This definition is consistent
with the definition in 40 CFR 51.166(b)(34).
Commence
Michigan has established the definition of ``commence'' in R
336.2801(k). This definition is consistent with the definition in 40
CFR 51.166(b)(9).
Complete
Michigan has established the definition of ``complete''--in
reference to an application to a permit--in R 336.2801(l). This
definition is consistent with the definition in 40 CFR 51.166(b)(22).
Construction
Michigan has established the definition of ``construction'' in R
336.2801(m). This definition is consistent with the definition in 40
CFR 51.166(b)(8).
Continuous Emissions Monitoring System or ``CEMS''
Michigan has established the definition of ``CEMS'' in R
336.2801(n). This definition is consistent with the definition in 40
CFR 51.166(b)(43).
Continuous Emissions Rate Monitoring System or ``CERMS''
Michigan has established the definition of ``CERMS'' in R
336.2801(o). This definition is consistent with the definition in 40
CFR 51.166(b)(46).
Continuous Parameter Monitoring System or ``CPMS''
Michigan has established the definition of ``CPMS'' in R
336.2801(p). This definition is consistent with the definition in 40
CFR 51.166(b)(45).
Electric Utility Steam Generating Unit
Michigan has established the definition of ``electric utility steam
generating unit'' in R 336.2801(q). This definition is consistent with
the definition in 40 CFR 51.166(b)(30).
Emissions Unit
Michigan has established the definition of ``emissions unit'' in R
336.2801(r). This is consistent with the definition in 40 CFR
51.166(b)(7). Included in both the Federal and state definitions is the
statement that a replacement unit is considered an existing unit under
this definition. However, Michigan's rules do not define ``replacement
unit,'' which is included in the Federal rule at 40 CFR 51.166(b)(7).
In a letter sent to EPA on May 17, 2007, Michigan agreed to follow the
Federal definition of ``replacement unit'' in its implementation of
these rules, and committed to add the definition in a future
rulemaking. In a subsequent letter to EPA, dated November 30, 2007,
MDEQ committed to add this definition in the rules not later than one
year after EPA's conditional approval of this plan. Based on this
commitment, and the understanding that Michigan will follow the Federal
definition of ``replacement unit'' in its implementation of the rules
in the interim, EPA is proposing to conditionally approve this rule.
Federal Land Manager
Michigan has established the definition of ``federal land manager''
in R 336.2801(s). This definition is consistent with the definition in
40 CFR 51.166(b)(24).
High Terrain
Michigan has established the definition of ``high terrain'' in R
336.2801(t). This definition is consistent with the definition in 40
CFR 51.166(b)(25).
Hydrocarbon Combustion Flare
Michigan has established the definition of ``hydrocarbon combustion
flare'' in R 336.2801(u). This definition is consistent with the
definition in 40 CFR 51.166(b)(31)(iv).
Indian Reservation
Michigan has established the definition of ``Indian reservation''
in R 336.2801(v). This definition is consistent with the definition in
40 CFR 51.166(b)(27).
Indian Governing Body
Michigan has established the definition of ``Indian governing
body'' in R 336.2801(w). This definition is consistent with the
definition in 40 CFR 51.166(b)(28).
Innovative Control Technology
Michigan has established the definition of ``innovative control
technology'' in R 336.2801(x). This definition is consistent with the
definition in 40 CFR 51.166(b)(19).
Low Terrain
Michigan has established the definition of ``low terrain'' in R
336.2801(y). This definition is consistent with the definition in 40
CFR 51.166(b)(26).
``Lowest Achievable Emission Rate'' or ``LAER''
Michigan has established the definition of ``LAER'' in R
336.2801(z). This definition is consistent with the definition in 40
CFR 51.166(b)(52).
Major Modification
Michigan has established the definition of ``major modification''
in R 336.2801(aa). This definition is consistent with the definition in
40 CFR 51.166(b)(2).
Major and Minor Source Baseline Date
Michigan has established the definition of ``major source baseline
date'' and ``minor source baseline date'' in R 336.2801(bb). This
definition is consistent with the definition in 40 CFR 51.166(b)(14).
Major Stationary Source
Michigan has established the definition of ``major stationary
source'' in R 336.2801(cc). This definition is consistent with the
definition in 40 CFR 51.166(b)(1).
Necessary Preconstruction Approvals or Permits
Michigan has established the definition of ``necessary
preconstruction approvals or permits'' in R 336.2801(dd). This
definition is consistent with the definition in 40 CFR 51.166(b)(10).
Net Emissions Increase
Michigan has established the definition of ``net emissions
increase'' in
[[Page 1573]]
R 336.2801(ee). This definition exceeds the requirements of 40 CFR
51.166(b)(3). As described in 40 CFR 51.166(b), states can use
definitions that are more stringent than the corresponding definitions
listed in 40 CFR 51.166(b)(1) to (56). However, in a letter dated May
17, 2007, Michigan declined intent for a more stringent definition, and
stated that the definition of ``net emissions increase'' is being
rewritten under a state rulemaking, so that it will follow the same
requirements as the Federal rule. Michigan indicates that the
definition of ``net emissions increase'' as currently set forth in R
336.2801(ee) will be applied until the state rules are revised. EPA
finds that the rule is approvable as currently promulgated, and as
proposed to be revised to match the Federal definition. Therefore we
propose to approve the definition of ``net emissions increase'' as part
of the SIP.
Pollution Prevention
Michigan has established the definition of ``pollution prevention''
in R 336.2801(gg). This definition is consistent with the definition in
40 CFR 51.166(b)(38).
Potential to Emit or ``PTE''
``Michigan has established the definition of ``PTE'' in R
336.2801(hh). This definition is consistent with the definition in 40
CFR 51.166(b)(4), except instead of ``federally enforceable,'' vacated
in Chemical Manufacturers Assn v. EPA, No. 89-1514 (D.C. Cir. Sept. 15,
1995) the Michigan rules use the more general term ``legally
enforceable.'' See EPA Interim Policy on Federally Enforceable
Requirement for Limitations on PTE, dated January 22, 1996 (``Interim
Policy''). EPA proposes to find the use of the term ``legally
enforceable'' approvable as part of the definition of ``PTE'' because
Michigan agrees to apply the term ``legally enforceable'' in accordance
with the Interim Policy to mean legally and practically enforceable by
a state or local air pollution control agency, as well as by the EPA.
In general, practicable enforceability for a source-specific permit
means that the permit's provisions must specify: (1) A technically-
accurate limitation and the portions of the source subject to the
limitation; (2) the time period for the limitation (hourly, daily,
monthly, and annual limits such as rolling annual limits); and (3) the
method to determine compliance including appropriate monitoring,
recordkeeping, and reporting. For rules and general permits that apply
to categories of sources, practicable enforceability additionally
requires that the provisions: (1) Identify the types or categories of
sources that are covered by the rule; (2) where coverage is optional,
provide for notice to the permitting authority of the source's election
to be covered by the rule; and (3) specify the enforcement consequences
relevant to the rule.
Michigan has committed in a letter dated September 11, 2007, to
apply the term ``legally enforceable'' consistent with the above, and
to revise the rule to make it consistent with this understanding. In a
subsequent letter to EPA, dated November 30, 2007, MDEQ committed to
add this definition in the rules not later than one year after EPA's
conditional approval of this plan. Therefore EPA is proposing to
conditionally approve this rule.
Predictive Emissions Monitoring System or ``PEMS''
Michigan has established the definition of ``PEMS'' in R
336.2801(ii). This definition is consistent with the definition in 40
CFR 51.166(b)(44).
Prevention of Significant Deterioration Program or ``PSD''
Michigan has established the definition of ``PSD'' in R
336.2801(jj). This definition is consistent with the definition in 40
CFR 51.166(b)(42).
Project
Michigan has established the definition of ``project'' in R
336.2801(kk). This definition is consistent with the definition in 40
CFR 51.166(b)(51).
Projected Actual Emissions
Michigan has established the definition of ``projected actual
emissions'' in R 336.2801(ll). This definition is consistent with the
definition in 40 CFR 51.166(b)(40).
Reactivation of a Very Clean Coal-Fired Electric Utility Steam
Generating Unit
Michigan has established the definition of ``reactivation of a very
clean coal-fired electric utility steam generating unit'' in R 336.2801
(mm). This definition is consistent with the definition in 40 CFR
51.166(b)(37).
Regulated New Source Review Pollutant
Michigan has established the definition of ``regulated new source
review pollutant'' in R 336.2801(nn). This definition is consistent
with the definition in 40 CFR 51.166(b)(49).
Repowering
Michigan has established the definition of ``repowering'' in R
336.2801(oo). This definition is consistent with the definition in 40
CFR 51.166(b)(36).
Secondary Emissions
Michigan has established the definition of ``secondary emissions''
in R 336.2801(pp). This definition is consistent with the definition in
40 CFR 51.166(b)(18).
Significant
Michigan has established the definition of ``significant'' in R
336.2801(qq). This definition is consistent with the definition in 40
CFR 51.166(b)(23).
Significant Emissions Increase
Michigan has established the definition of ``significant emissions
increase'' in R 336.2801(rr). This definition is consistent with the
definition in 40 CFR 51.166(b)(39).
Stationary source
Michigan has established the definition of ``stationary source'' in
R 336.2801(ss). This definition is consistent with the definition in 40
CFR 51.166(b)(5).
Temporary Clean Coal Technology Demonstration Project
Michigan has established the definition of ``temporary clean coal
technology demonstration project'' in R 336.2801(tt). This definition
is consistent with the definition in 40 CFR 51.166(b)(35).
Definitions Not Included in the PSD SIP
The following 40 CFR 51.166(b) definitions are not included in the
submitted SIP rules: ``allowable emissions'', ``federally
enforceable'', and ``fugitive emissions''. The definitions of
``allowable emissions'' and ``fugitive emissions'' are included in
previously approved SIP programs in Michigan's air rules (R 336.1101(j)
and R 336.1106(h)), and are consistent with the definitions in 40 CFR
51.166(b)(16) and 40 CFR 51.166(b)(20). EPA is proposing to approve the
rules based on Michigan's commitment that, in its implementation of the
PSD rules, the State will follow the definitions of ``allowable
emissions'' and ``fugitive emissions'' as included in previously
approved SIP programs in Michigan's air rules (R 336.1101(j) and R
336.1106(h)), and as consistent with the definitions in 40 CFR
51.166(b)(16) and 40 CFR 51.166(b)(20).
The definition of ``federally enforceable'' is not required for the
PSD SIP. See discussion above in conjunction with the definition of
``PTE.'' Instead of ``federally enforceable,'' the Michigan rules use
the term ``legally enforceable.'' Consistent with the Interim Policy,
EPA proposes to find the term ``legally enforceable'' conditionally
approvable as part of the rules' definition of ``PTE'' (R 336.2801(hh))
as long as Michigan agrees to apply the term ``legally enforceable'' in
accordance with the Interim Policy to mean legally and practically
enforceable by the EPA, a state or local air pollution control
agency,'' as discussed above.
[[Page 1574]]
R 336.2802 Applicability
The Michigan rule defines the applicability of the PSD permitting
program. The rule states that new major sources or major modifications
at existing major sources of air pollution must obtain a PSD permit
before construction begins. The rule also states that major
modifications occur when a project causes a significant increase in an
air pollutant. The rule then goes on to provide four methods of
determining whether a significant increase occurs: (1) Baseline actual
emissions v. future potential emissions (applies to new or existing
sources); (2) baseline actual emissions v. projected actual emissions
(applies to existing sources only); (3) hybrid combination (for
projects involving new and existing sources); and (4) Plantwide
Applicability Limitations. Rule R 336.2802 is consistent with 40 CFR
51.166(a)(7).
R 336.2803 Ambient Air Increments
This rule contains the ambient air increment requirements
(acceptable maximum impacts that may be caused by a new source of air
pollution). Rule R 336.2803 is consistent with 40 CFR 51.166(c).
R 336.2804 Ambient Air Ceilings
This rule sets forth ambient air increment requirements to ensure
that no source may cause the concentration of air pollutants in the
ambient air to exceed the National Ambient Air Quality Standards
(NAAQS). Rule R 336.2804 is consistent with 40 CFR 51.166(d).
R 336.2805 Restrictions on Area Classifications
This rule contains the ambient air ceiling requirements for certain
Class I areas (such as national parks and national wildlife areas). All
other areas of the state are Class II areas. The Federal and state PSD
rules allow greater impacts from air pollutants in Class III areas, but
Michigan does not currently contain any Class III areas. If Michigan
were to seek to establish any Class III areas, then this rule would
need to be consistent with Class III requirements at that time. Rule R
336.2805 is consistent with 40 CFR 51.166(e).
R 336.2806 Exclusions From Increment Consumption
This rule specifies concentrations which shall be excluded from
determining compliance with maximum allowable increments. Rule R
336.2806 is consistent with 40 CFR 51.166(f).
R 336.2807 Redesignation
This rule contains provisions for obtaining waivers from normal
increment consumption requirements. Rule R 336.2807 is consistent with
40 CFR 51.166(g).
R 336.2808 Stack Heights
This rule contains stack heights requirements. Rule R 336.2808 is
consistent with 40 CFR 51.166(h).
R 336.2809 Exemptions
This rule exempts certain sources from applicable technology
review, air quality monitoring, and projected emission impact modeling
requirements. Rule R 336.2809 is consistent with 40 CFR 51.166(i).
R 336.2810 Control Technology Review
This rule requires permit applicants to include the BACT on
proposed new major sources or major modifications at existing major
sources. Rule R 336.2810 is consistent with 40 CFR 51.166(j).
R 336.2811 Source Impact Analysis
This rule requires permit applicants to demonstrate that their
proposed emissions will not cause a violation of the NAAQS or the air
quality increment. Rule R 336.2811 is consistent with 40 CFR 51.166(k).
R 336.2812 Air Quality Models
This rule provides requirements for acceptable computer models
which may be used in an air quality impact demonstration. Rule R
336.2812 is consistent with 40 CFR 51.166(l).
R 336.2813 Air Quality Analysis
This rule requires that a PSD permit applicant analyze the existing
condition of the ambient air at the proposed site both before and after
construction (sometimes referred to as preconstruction and post-
construction monitoring). Rule R 336.2813 is consistent with 40 CFR
51.166(m).
R 336.2814 Source Information
This rule contains minimum information content requirements for PSD
permit applications. Rule R 336.2814 is consistent with 40 CFR
51.166(n).
R 336.2815 Additional Impact Analyses
This rule requires that the PSD permit applicant evaluate
additional environmental impacts, like the impairment of visibility,
soils, or vegetation. Rule R 336.2815 is consistent with 40 CFR
51.166(o).
R 336.2816 Sources Impacting Federal Class I Areas; Additional
Requirements
This rule establishes alternative increment requirements for
sources impacting Class I areas. Rule R 336.2816, as submitted, is not
consistent with 40 CFR 51.166(p). Specifically, state rule R
332.2816(2)(a) does not include the requirements of 51.166(p)(3), under
which a plan must provide a mechanism whereby the Federal Land Manager
may present to the state a demonstration of impacts of air quality-
related values from proposed source/modification where maximum
allowable increases for a Class I area are not violated, in which case
if the state concurs, the state does not issue a permit. In a letter to
EPA dated November 30, 2007, MDEQ committed to include these
requirements in a future rule-making revision, to be completed no later
than one year after EPA's conditional approval. Additionally, the state
committed to clarify Rules R 332.2816 to more closely comport with 40
CFR 51.166(p). The proposed language, included in the November 30,
2007, letter is acceptable. Therefore EPA is proposing to conditionally
approve this rule.
R 336.2817 Public Participation
This rule establishes the minimum acceptable opportunities for
public comment on a proposed PSD permit. In its rules, Michigan is
foregoing the right to one full year to act on a complete permit
application, and is bound, instead, under the rules to act within 120
days. We approve this change. Rule R 336.2817 is consistent with 40 CFR
51.166(q).
R 336.2818 Source Obligation
This rule places additional requirements upon the PSD permit
applicant, including recordkeeping requirements for applicants using
certain methods for determining if a project results in a significant
increase.
On December 31, 2002, EPA published revisions to the Federal PSD
and non-attainment NSR regulations. These revisions are commonly
referred to as ``NSR Reform'' regulations and became effective on March
3, 2003. These regulatory revisions include provisions for baseline
emissions determinations, actual-to-future actual methodology,
Plantwide Applicability Limits (PALs), Clean Units, and Pollution
Control Projects (PCP). The Federal rules require a source to follow
the recordkeeping and reporting requirements in this section if there
is a ``reasonable possibility'' that a source may exceed the projected
actual
[[Page 1575]]
emissions (40 CFR 51.166(r)(6)). The ``reasonable possibility'' clause
of this provision of the Federal rule has been remanded to EPA in the
June 24, 2005, D.C. Circuit Court ruling in State of New York et al. v.
EPA, 413 F.3d 3 (D.C. Cir. 2005). On December 14, 2007, EPA issued a
final rule that provides additional explanation and more detailed
criteria to clarify the ''reasonable possibility'' recordkeeping and
reporting standard of the 2002 NSR reform rules. This final action will
require recordkeeping and reporting when the projected increase in
emissions to which the ``reasonable possibility'' test applies equals
or exceeds 50 percent of the CAA's NSR significance levels for any
pollutant.\1\ MDEQ must submit a notice to EPA within 1 year from this
conditional approval--before EPA takes final action to approve this
aspect of the SIP--to acknowledge the rule change and that the PSD
regulations will continue to follow the ``reasonable possibility''
provisions in a manner that is consistent with EPA's final rule. All
the requirements of rule R 336.2818 are consistent with 40 CFR
51.166(r).
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\1\ Currently, the MDEQ's minor source permitting program--Rule
R 336.1201--requires this information to be submitted for all
sources as part of a complete Permit to Install application before
beginning actual construction on the proposed project (not just
where there is a ``reasonable possibility'' that the source may
exceed the projected actual emissions). Because this is more
stringent than the Federal requirement, we approve this approach.
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R 336.2819 Innovative Control Technology
This rule contains provisions allowing a PSD permit applicant to
experiment with new control technologies to satisfy the BACT
requirement. Rule R 336.2819 is consistent with 40 CFR 51.166(s).
R 336.2823 (1) to (14) Actuals Plantwide Applicability Limits (PALs)
This rule contains an alternate applicability method for
determining if a source requires a PSD permit. Rule R 336.2823(1) to
(14) is consistent with 40 CFR 51.166(w).
Rules Not Included in the PSD SIP
Subrule R 336.1823(15) contains provisions synchronizing the
Michigan minor permit to install program with the new PAL provisions.
This subrule is mainly concerned with state air toxics provisions and
was not submitted as part of Michigan's PSD SIP. Therefore, EPA is not
taking action on rule R 336.1823(15) as part of this rulemaking action.
Rule R 336.2830 is intended to provide a parallel appeal procedure
to the procedure that is currently in place for the Federal PSD program
in Michigan under the regulation at 40 CFR 124. The rule creates a
right to an administrative hearing before a state administrative law
judge that is similar to the current appeal rights under the Federal
PSD permitting program. This rule is not submitted as part of
Michigan's PSD SIP. Therefore, EPA is not taking action on rule R
336.2830.
IV. What Action Is EPA Taking Today?
EPA is proposing to conditionally approve revisions to the SIP to
include the PSD construction permit programs of the State of Michigan.
Conditions for Conditional Approval
As noted above, EPA has identified several minor deficiencies that
are necessary to correct in Michigan's rules so that the rules are
approvable. The areas of concern are discussed in more detail above. In
a letter to EPA dated May 17, 2007, Michigan committed to follow the
federal definition of ``replacement unit'' (40 CFR 51.166(b)(7)) in its
implementation of these rules, and to add the definition to the state
rules in a future rulemaking. For the definition of ``PTE'' (Rule
336.2801(hh)), Michigan follows the federal definition, except instead
of ``federally enforceable'', the Michigan rules use the more general
term ``legally enforceable''. Michigan has committed, in a letter to
EPA dated September 11, 2007, to apply the term legally enforceable to
mean legally and practically enforceable by the EPA, a state or local
air pollution agency, consistent with the Interim Policy dated January
22, 1996.
The state's current Rule 336.2816 does not include a mechanism
under which the Federal Land Manager may present to the state a
demonstration of impacts of air quality-related values from proposed
source/modification where maximum allowable increases for a Class I
area are not violated, and if the state concurs it does not issue the
permit (as per 40 CFR 51.166(p) (3)). In order to add the missing
requirement for sources impacting federal Class I areas, MDEQ
committed, in a letter to EPA dated November 30, 2007, to add these
requirements through a future rule-making revision. Additionally, the
state committed to clarify this state rule to more closely comport with
federal requirements (The deficiencies being addressed are described in
more detail above in Part III of this document entitled ``What Are The
Changes That EPA is Conditionally Approving?'').
Under section 110(k)(4) of the CAA, EPA may conditionally approve a
SIP revision based on a commitment from the state to adopt specific
enforceable measures by a date certain that is no more than one year
from the date of conditional approval. In this action, we are proposing
to approve the SIP revision that Michigan has submitted on the
condition that the specified deficiencies in the SIP revision are
corrected, as noted above, within a year of a final conditional
approval of the rules.
If this condition is not fulfilled within one year of the effective
date of final rulemaking by correction of all of the specified
deficiencies, the conditional approval for the uncorrected sections of
the state rules will automatically revert to disapproval, as of the
deadline for meeting the conditions, without further action from the
EPA. EPA would subsequently publish a notice in the Federal Register
providing notice and details of such disapproval.
If Michigan submits final and effective rule revisions correcting
the deficiencies, as discussed above, within one year from this
conditional approval becoming final and effective, EPA will publish a
subsequent notice in the Federal Register to acknowledge conversion of
the conditional approval to a full approval.
V. 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
[[Page 1576]]
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 CAA.
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 (65 FR 67249, 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 proposes approval of
a state rule implementing a Federal Standard.
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 regulatory action,'' 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).
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 CAA. 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
CAA. Therefore, the requirements of section 12(d) of the NTTAA do not
apply.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: December 27, 2007.
Gary Gulezian,
Acting Regional Administrator, Region 5.
[FR Doc. E8-186 Filed 1-8-08; 8:45 am]
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