[Federal Register: September 16, 2008 (Volume 73, Number 180)]
[Proposed Rules]
[Page 53401-53403]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16se08-15]
[[Page 53401]]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2007-1043; FRL-8712-9]
Approval and Promulgation of Air Quality Implementation Plans;
Michigan; PSD Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to disapprove certain revisions to the State
of Michigan's prevention of significant deterioration (PSD) State
Implementation Plan (SIP), and in the alternative to approve the
revisions if the deficiencies in the rules involved are corrected, as
proposed by Michigan, and approved by EPA. These revisions are included
in Michigan Rule R 336.2816, and set out the mechanisms which
facilitate the participation of a potentially affected Federal Land
Manager (FLM) in the State's permitting process for purposes of
protecting either the increment or the Air Quality-Related Values
(AQRVs) associated with a Class I area from potential impacts from a
proposed major source or major modification. The Michigan Department of
Environmental Quality (MDEQ) submitted these revisions as part of the
SIP package on December 21, 2006. In a separate action in today's
Federal Register, EPA is conditionally approving all other portions of
Michigan's PSD SIP revision submission.
DATES: Comments must be received on or before October 16, 2008.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
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, (AR-
18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard,
Chicago, Illinois 60604.
Hand Delivery: Pamela Blakley, Chief, Air Permits 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-
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 U.S. 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 Federal
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 Proposing To Disapprove and To
Approve?
IV. What Action Is EPA Taking?
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--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?
MDEQ submitted Michigan Air Pollution Control Rules, Part 18, Rules
R 336.2801 to R 336.2819 and R 336.2823(1) to (14) (``Part 18'') to EPA
on December 21, 2006, for EPA approval and inclusion into the Michigan
SIP. Part 18 relates to Michigan's PSD permit program. Michigan adopted
revisions to Part 18 on December 4, 2006. Prior to approval of
Michigan's submitted PSD program, EPA delegated to Michigan
[[Page 53402]]
(via delegation letter dated September 26, 1988) the authority to issue
PSD permits through the Federal PSD rules at 40 CFR 52.21.
On January 9, 2008, EPA proposed to conditionally approve
Michigan's PSD SIP rules under section 110 of the Clean Air Act (CAA).
(73 FR 1570, January 9, 2008). During the public comment period, EPA
received a number of comments on our proposal. A summary of the
comments and our answers are included in a separate action published in
today's Federal Register, in which EPA is conditionally approving the
remainder of the SIP submittal.
Michigan Rule R 336.2816 is based on 40 CFR 51.166(p)(1)-(7), which
sets out the mechanisms which facilitate the participation of the FLM
in the State's permitting process for purposes of protecting either the
increment or the AQRVs associated with a Class I area from potential
impacts from a proposed major source or major modification.
EPA has determined that Michigan Rule R 336.2816, as submitted, is
not consistent with 40 CFR 51.166(p). Specifically, Michigan Rule R
332.2816(2)(a) does not include the requirements of 40 CFR
51.166(p)(3), under which a plan must provide a mechanism whereby the
FLM may present to the state a demonstration of adverse impacts to
AQRVs from a proposed source or modification, notwithstanding that the
change in air quality resulting from this proposed source or
modification would not cause or contribute to an exceedence of the
maximum allowable increase for the Class I area. In such cases, where
the state concurs with the FLM's demonstration, the State does not
issue a permit. Additionally, EPA sought clarification from the State
as to how it planned to implement certain State rules corresponding to
the variance provisions contained in 40 CFR 51.166(p)(4), (5), and (6).
On November 30, 2007, in a letter from Steven Chester, Director,
MDEQ, to the Regional Administrator, Michigan committed, among other
things, to making changes to Michigan Rule R 336.2816 consistent with
the requirements at 40 CFR 51.166(p). Based on this commitment, EPA
proposed to conditionally approve Michigan Rule R 336.2816.
During the comment period, commenters raised concerns that, insofar
as Michigan Rule R 336.2816 does not fully implement the regulatory
mechanism by which an FLM may participate in the State's permitting
process, EPA should act to ensure that the SIP contains these
requirements until such time as the State promulgates consistent
regulations.
Because Michigan currently implements the Federal PSD program under
EPA's delegation of 40 CFR 52.21, a conditional approval of Michigan
Rule R 336.2816 would have made the Michigan SIP less stringent than
the currently applicable, Federally delegated program. Therefore, EPA
is proposing to disapprove Michigan's submittal as it relates to
Michigan Rule R 336.2816. Michigan will retain its Federal delegation
of authority under 40 CFR 52.21(p) until such time as the State submits
promulgated rules equivalent to 40 CFR 51.166(p) and those rules are
approved into its SIP. Retention of the delegated program until such
time as Michigan promulgates and EPA approves a corrective rule will
ensure that the provisions of 40 CFR 51.166(p) will continue to apply,
thereby avoiding any regulatory gap, and ensuring full participation of
the FLM, as appropriate, in State permitting decisions.
In the alternative, EPA is proposing to approve Michigan's revised
Michigan Rule R 336.2816 if the rule is revised to meet the
requirements set forth in Federal rule 40 CFR 51.166(p). In its letter
to EPA dated November 30, 2007, Michigan has committed to make this
revision to its rule.
Michigan is not authorized to carry out its Federally approved air
program in ``Indian Country,'' as defined in 18 U.S.C. 1151. Indian
Country includes: 1. All lands within the exterior boundaries of Indian
reservations within the State of Michigan; 2. Any land held in trust by
the U.S. for an Indian tribe; and 3. Any other land, whether on or off
an Indian reservation that qualifies as Indian Country. Therefore, EPA
retains the authority to implement and administer the CAA program in
Indian Country.
III. What Are the Changes That EPA Is Proposing To Disapprove and To
Approve?
EPA is proposing to disapprove the following section of ``Part 18,
Prevention of Significant Deterioration of Air Quality'' of Michigan's
Air Pollution Control Rules: ``R 336.2816, Sources Impacting Federal
Class I Areas--additional requirements.'' In the alternative, EPA is
proposing to approve this same section of Michigan's Rule R 336.2816,
if the rule is revised to meet the requirements set forth in Federal
rule 40 CFR 51.166(p), as Michigan has committed to do in its letter to
EPA dated November 30, 2007.
IV. What Action Is EPA Taking?
For reasons stated above, EPA is proposing to disapprove certain
revisions to Michigan's SIP, specifically Michigan Rule R 336.2816,
Sources Impacting Federal Class I Areas; additional requirements. EPA
is, in the alternative, proposing to approve Michigan Rule R 336.2816
when the rule is revised to meet the requirements set forth in Federal
rule 40 CFR 51.166(p), as Michigan has committed to do in its letter to
EPA dated November 30, 2007.
What Is the Effect of the Proposed Disapproval?
Under section 110(k)(3) of the CAA, EPA may fully approve or
disapprove a State submittal. Where portions of the State submittal are
separable, EPA may approve portions of the submittal that meet the
requirements of the CAA, and disapprove the portions of the submittal
that do not meet the requirements of the CAA. (57 FR 13566, April 16,
1992.) Elsewhere in today's Federal Register, EPA is conditionally
approving the remaining elements of the State's December 21, 2006
submittal. Under today's proposed disapproval, Michigan will retain its
Federal delegation of authority under 40 CFR 52.21(p) to administer
Michigan Rule R 336.2816 until such time as the State submits
promulgated rules equivalent to 40 CFR 51.166(p) and these rules are
approved into its SIP.
What Is Our Basis for Proposed Disapproval of Michigan's Rules?
The State's current Michigan Rule R 336.2816 is not consistent with
40 CFR 51.166(p), which sets out the mechanisms which facilitate the
participation of the FLM in the State's permitting process for purposes
of protecting either the increment or the AQRVs associated with a Class
I area from potential impacts from a proposed major source or major
modification.
What Is Our Basis for Proposed Approval of Michigan's Rules?
The State has committed to revise current Michigan Rule R 336.2816,
which sets out the mechanisms which facilitate the participation of the
FLM in the State's permitting process for purposes of protecting either
the increment or the AQRVs associated with a Class I area from
potential impacts from a proposed major source or major modification,
by promulgating rules equivalent to 40 CFR 51.166(p). The State has
formalized this commitment in a letter to EPA dated November 30, 2007.
EPA has reviewed the State's proposed regulatory changes and has
[[Page 53403]]
made a preliminary determination that they are consistent with 40 CFR
51.166(p). Once properly promulgated by the State, EPA proposes to
approve them into the State's SIP. A copy of the proposed revised rules
can be seen at http://www.regulations.gov (add the docket number EPA-
R05-OAR-2007-1043 to Advanced Docket Search option). If Michigan
submits these revised rules to EPA for final approval, EPA plans to
finalize the approval without an additional comment period. Any party
interested in commenting on whether Michigan's proposed revision to
Michigan Rule R 336.2816 meets the requirements of 40 CFR 51.166(p)
should do so during the comment period on this action.
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 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). Nevertheless, EPA
anticipates providing outreach to tribes located in Michigan and other
potentially affected areas regarding this proposed rulemaking.
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: August 25, 2008.
Lynn Buhl,
Regional Administrator, Region 5.
[FR Doc. E8-21620 Filed 9-15-08; 8:45 am]
BILLING CODE 6560-50-P