[Federal Register Volume 75, Number 57 (Thursday, March 25, 2010)]
[Rules and Regulations]
[Pages 14352-14356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6486]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2007-1043; FRL-9129-5]
Approval and Promulgation of Air Quality Implementation Plans;
Michigan; PSD Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to convert a conditional
approval of specified provisions of the Michigan State Implementation
plan (SIP) to a full approval. The revisions consist of requirements of
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. EPA is converting its
prior conditional approval to full approval because the Michigan
Department of Environmental Quality (MDEQ) submitted corrections to the
rules that satisfy the conditions listed in EPA's conditional approval.
As part of this direct final rule, EPA is rescinding Michigan's
delegation of authority for implementing the Federal PSD regulations.
This action is being taken under section 110 of the CAA.
DATES: This direct final rule will be effective May 24, 2010, unless
EPA receives adverse comments by April 26, 2010. If adverse comments
are received, EPA will publish a timely withdrawal of the direct final
rule in the Federal Register informing the public that the rule will
not take effect.
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: [email protected].
Fax: (312) 692-2450
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. 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.
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 Federal
holidays. We recommend that you telephone Laura Cossa, Environmental
Engineer, at (312) 886-0661 before visiting the Region 5 office.
[[Page 14353]]
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, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. Background
II. How Michigan's Revisions Satisfy the Terms of the Conditional
Approval
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
Michigan Air Pollution Control Rules, Part 18, Rules R 336.2801
[(a) through (tt)] except for (j) and (ff) to R 336.2819 and R
336.2823(1) to (14) (``Part 18'') were submitted to EPA for inclusion
in the SIP by MDEQ on December 21, 2006. Part 18 relates to the State
of Michigan's PSD permit program. Revisions to Part 18 were adopted by
MDEQ on December 4, 2006. EPA proposed to conditionally approve the PSD
SIP rules under section 110 of the CAA on January 9, 2008 (73 FR 1570).
EPA received several comments on its proposal. After considering the
comments, EPA finalized its conditional approval of rules R 336.2801 to
R 336.2819 (except R 336.2816, ``Sources Impacting Federal Class I
Areas--Additional Requirements'') and R 336.2823(1) to (14) on
September 16, 2008 (73 FR 53366). In addition, in a separate action on
September 16, 2008, EPA proposed to partially disapprove the portion of
Michigan's SIP revision submission consisting of Michigan Rule R
336.2816 (73 FR 53401).
On September 30, 2008, MDEQ submitted the revisions to the SIP,
incorporating the corrections required by EPA in the conditional
approval. Specifically, the rules revised are R 336.2801(r)(ii)
(definition of ``emission unit'') and R 336.2801(hh) (definition of
``potential to emit''). After consideration, EPA concludes that the
submitted revisions to the SIP satisfy the conditions listed in EPA's
conditional approval, and today is converting its prior conditional
approval to full approval. Additionally, EPA is rescinding its
delegation of the PSD regulations to Michigan.
The September 30, 2008 letter from Michigan to EPA also mentions
revisions to rules R 336.1816(2) through (4), R 336.1801(ee), and R
336.1818(3) and (3)(f). EPA will take separate action on rules R
336.1816(2) through (4) (requirements relating to Class I areas).
Michigan is not authorized to carry out its SIP approved PSD
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
PSD program in Indian Country.
Because modifications of Rule R 336.1801(ee) (``net emissions
increase'') and R 336.1818(3) and (3)(f) (the ``reasonable
possibility'' recordkeeping and reporting requirements) are not part of
the requirements of the conditional approval, and MDEQ has not
previously requested EPA's action on them, EPA is not acting on these
modifications at this time. Unless and until these modifications are
submitted and approved, they are not part of the SIP.
II. How Michigan's Revisions Satisfy the Terms of the Conditional
Approval
Michigan has established the definition of ``emissions unit'' in R
336.2801(r)(ii). 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 did not define ``replacement
unit,'' which is included in the Federal rule at 40 CFR 51.166(b)(32).
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. Therefore EPA
conditionally approved this rule on September 16, 2008 (73 FR 53366).
On September 11, 2008, MDEQ adopted the revised rule, at the State
level, to include the definition of ``replacement unit.'' The
definition is consistent with the definition in 40 CFR 51.166(b)(32).
On September 30, 2008, MDEQ submitted the revision of the rule to EPA.
EPA finds that this correction satisfies the condition listed in EPA's
conditional approval.
Michigan has established the definition of ``potential to emit'' in
rule 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 (DC 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 Potential to Emit, dated January 22,
1996 (``Interim Policy''). EPA concluded that the use of the term
``legally enforceable'' was approvable as part of the definition of
``potential to emit'' because Michigan agreed 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 committed in a letter dated September 11, 2007, to apply
the term ``legally enforceable'' in a manner 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 conditionally approved
this rule on September 16, 2008 (73 FR 53366).
On September 11, 2008, MDEQ adopted the revised rule, at the State
level, to include in the definition of ``potential to emit'' the
condition that a limitation must be ``enforceable as a practical matter
by the State, local air pollution control agency, or United States
environmental protection agency.'' The revised definition is consistent
with the definition in 40 CFR 51.166(b)(4) and with the Interim Policy
dated January 22, 1996. On September 30, 2008, MDEQ submitted to EPA
the
[[Page 14354]]
revision to the rule. EPA finds that this correction satisfies the
condition listed in EPA's conditional approval.
III. Final Action
As explained above, MDEQ submitted revisions to the rules at R
336.2801(r)(ii) (definition of ``emission unit'') and R 336.2801(hh)
(definition of ``potential to emit''), and has satisfied the conditions
listed in EPA's conditional approval. Therefore, EPA is taking direct
final action to convert its conditional approval of Michigan's SIP
revisions to a full approval of Michigan's PSD program, with the
exception of Rule R 336.2816. EPA is taking separate action on Michigan
Rule R 336.2816, which was also included in the State's December 21,
2006, PSD program submission. Because modifications of Rule R
336.1801(ee) (``net emissions increase'') and R 336.1818(3) and (3)(f)
(the ``reasonable possibility'' recordkeeping and reporting
requirements) were not previously submitted to EPA for approval, EPA is
not taking action on these modifications at this time.
We are publishing this action without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the State plan if relevant adverse
written comments are filed. This rule will be effective May 24, 2010
without further notice unless we receive relevant adverse written
comments by April 26, 2010. If we receive such comments, we will
withdraw this action before the effective date by publishing a
subsequent document that will withdraw the final action. All public
comments received will then be addressed in a subsequent final rule
based on the proposed action. EPA will not institute a second comment
period. Any parties interested in commenting on this action should do
so at this time. If we do not receive any comments, this action will be
effective May 24, 2010.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve State regulations,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves State law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by State
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and, additionally, EPA notes that it will not impose
substantial direct costs on Tribal governments or preempt Tribal law.
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 action 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).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 24, 2010. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
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: March 11, 2010.
Walter W. Kovalick Jr.,
Acting Regional Administrator, Region 5.
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40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart X--Michigan
0
2. In Sec. 52.1170, the table in paragraph (c) entitled ``EPA-Approved
Michigan Regulations'' is amended by adding a new entry for Part 18 to
read as follows:
Sec. 52.1170 Identification of plan.
* * * * *
(c) * * *
[[Page 14355]]
EPA-Approved Michigan Regulations
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Michigan citation Title State effective date EPA approval date Comments
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* * * * * * *
Part 18. Prevention of Significant Deterioration of Air Quality
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R 336.2801............... Definitions......... December 4, 2006.... March 25, 2010, All sections except
[Insert page number for (j) and (ff),
where the document [reserved in
begins]. original rule].
R 336.2801............... Definitions......... September 11, 2008.. March 25, 2010, Sections (hh) and
[Insert page number (r)(ii).
where the document
begins].
R 336.2802............... Applicability....... December 4, 2006.... March 25, 2010,
[Insert page number
where the document
begins].
R 336.2803............... Ambient Air December 4, 2006.... March 25, 2010,
Increments. [Insert page number
where the document
begins].
R 336.2804............... Ambient Air Ceilings December 4, 2006.... March 25, 2010,
[Insert page number
where the document
begins].
R 336.2805............... Restrictions on Area December 4, 2006.... March 25, 2010,
Classifications. [Insert page number
where the document
begins].
R 336.2806............... Exclusions from December 4, 2006.... March 25, 2010,
Increment [Insert page number
Consumption. where the document
begins].
R 336.2807............... Redesignation....... December 4, 2006.... March 25, 2010,
[Insert page number
where the document
begins].
R 336.2808............... Stack Heights....... December 4, 2006.... March 25, 2010,
[Insert page number
where the document
begins].
R 336.2809............... Exemptions.......... December 4, 2006.... March 25, 2010,
[Insert page number
where the document
begins].
R 336.2810............... Control Technology December 4, 2006.... March 25, 2010,
Review. [Insert page number
where the document
begins].
R 336.2811............... Source Impact December 4, 2006.... March 25, 2010,
Analysis. [Insert page number
where the document
begins].
R 336.2812............... Air Quality Models.. December 4, 2006.... March 25, 2010,
[Insert page number
where the document
begins].
R 336.2813............... Air Quality Analysis December 4, 2006.... March 25, 2010,
[Insert page number
where the document
begins].
R 336.2814............... Source Information.. December 4, 2006.... March 25, 2010,
[Insert page number
where the document
begins].
R 336.2815............... Additional Impact December 4, 2006.... March 25, 2010,
Analyses. [Insert page number
where the document
begins].
R 336.2817............... Public Participation December 4, 2006.... March 25, 2010,
[Insert page number
where the document
begins].
R 336.2818............... Source Obligation... December 4, 2006.... March 25, 2010,
[Insert page number
where the document
begins].
R 336.2819............... Innovative Control December 4, 2006.... March 25, 2010,
Technology. [Insert page number
where the document
begins].
R 336.2823............... Actuals Plantwide December 4, 2006.... March 25, 2010, Only sections (1)
Applicability [Insert page number through (14).
Limits (PALs). where the document
begins].
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* * * * * * *
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[[Page 14356]]
* * * * *
Sec. 52.1188 [Removed and Reserved]
0
3. Remove and reserve Sec. 52.1188.
[FR Doc. 2010-6486 Filed 3-24-10; 8:45 am]
BILLING CODE 6560-50-P