
[Federal Register: March 25, 2010 (Volume 75, Number 57)]
[Rules and Regulations]               
[Page 14352-14356]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25mr10-7]                         

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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: blakley.pamela@epa.gov.
     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, 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. 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.

0
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
----------------------------------------------------------------------------------------------------------------
    Michigan citation              Title         State effective date    EPA approval date         Comments
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
                         Part 18. Prevention of Significant Deterioration of Air Quality
----------------------------------------------------------------------------------------------------------------
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].

----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[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

