[Federal Register Volume 63, Number 225 (Monday, November 23, 1998)]
[Rules and Regulations]
[Pages 64632-64636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31076]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[MI49-01(a); FRL-6189-8]


Approval of Section 112(l) Program of Delegation; Michigan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving, 
through a ``direct final'' procedure, a request for a program for 
delegation of the Federal air toxics program contained within 40 CFR 
Parts 61 and 63 pursuant to Section 112(l) of the Clean Air Act (Act) 
of 1990. The State's mechanism of delegation involves the straight 
delegation of all existing and future Section 112 standards unchanged 
from the Federal standards. The actual delegation of authority of 
individual standards, except for standards addressed specifically in 
this action, will be in the form of a letter from EPA to the Michigan 
Department of Environmental Quality (MDEQ). This request for approval 
of a mechanism of delegation encompasses all sources not covered by the 
Part 70 program. In the proposed rules section of this Federal 
Register, the EPA is proposing approval of, and soliciting comments on, 
this approval. If adverse comments are received on this action, the EPA 
will withdraw this final rule. It will then address the comments 
received in response to this action in a final rule based on the 
related proposed rule being published in the ``Proposed Rules'' section 
of this Federal Register. A second public comment period will not be 
held. Parties interested in commenting on this action should do so at 
this time. This approval makes the State's rule federally enforceable.

DATES: The ``direct final'' is effective on January 22, 1999, unless 
EPA receives adverse or critical written comments by December 23, 1998. 
If adverse comment is received, EPA will publish a timely withdrawal of 
the rule in the Federal Register informing the public that the rule 
will not take effect.

ADDRESSES: Written comments should be sent to: Robert B. Miller, Chief, 
Permits and Grants Section, Air

[[Page 64633]]

Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    Copies of the State's submittal and other supporting information 
used in developing the approval are available for inspection during 
normal business hours at the following locations:

EPA Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, Illinois, 
60604
Air Quality Division, Michigan Department of Environmental Quality, 106 
West Allegan Street, Lansing, Michigan 48909

    Please contact Laura Gerleman at (312) 353-5703 to arrange a time 
if inspection of the submittal is desired.

FOR FURTHER INFORMATION CONTACT: Laura Gerleman, AR-18J, 77 West 
Jackson Boulevard, Chicago, Illinois, 60604, (312) 353-5703.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    Section 112(l) of the Act enables the EPA to approve State air 
toxics programs or rules to operate in place of the Federal air toxics 
program. The Federal air toxics program implements the requirements 
found in Section 112 of the Act pertaining to the regulation of 
hazardous air pollutants. Approval of an air toxics program is granted 
by the EPA if the Agency finds that the State program: (1) is ``no less 
stringent'' than the corresponding Federal program or rule, (2) the 
State has adequate authority and resources to implement the program, 
(3) the schedule for implementation and compliance is sufficiently 
expeditious, and (4) the program is otherwise in compliance with 
Federal guidance. Once approval is granted, the air toxics program can 
be implemented and enforced by State or local agencies, as well as EPA. 
Implementation by local agencies is dependent upon appropriate 
subdelegation.
    On October 12, 1995, Michigan submitted to EPA a request for 
delegation of authority to implement and enforce the air toxics program 
under Section 112 of the CAA. On January 8, 1996, EPA found the State's 
submittal complete. In this notice EPA is taking final action to 
approve the program of delegation for Michigan.

II. Review of State Submittal

A. Program Summary

    Requirements for approval, specified in section 112(l)(5), require 
that a State's program contain adequate authorities, adequate resources 
for implementation, and an expeditious compliance schedule. These 
requirements are also requirements for an adequate operating permits 
program under Part 70 (40 CFR 70.4). On January 10, 1997, EPA 
promulgated a final interim approval under Part 70 of the State of 
Michigan's Operating Permit Program. The Federal Register rulemaking 
included the approval of a mechanism for delegation of all Section 112 
standards for sources subject to the Part 70 program. Sources subject 
to the Part 70 program are those sources that are required to operate 
pursuant to a Part 70 permit issued by the State, local agency or EPA. 
Sources not subject to the Part 70 program are those sources that are 
not required to obtain a Part 70 permit from either the State, local 
agency or EPA (see 40 CFR 70.3). This action supplements the Part 70 
rulemaking in that Michigan will have the authority to implement and 
enforce the Section 112 air toxics program as provided by the approved 
mechanism of delegation regardless of a source's Part 70 applicability.
    The Michigan program of delegation for sources not subject to Part 
70 will not include delegation of Section 112(r) authority or 
radionuclide emissions standards. The program will, however, include 
the delegation of the 40 CFR Part 63 general provisions to the extent 
that they are not reserved to the EPA and are delegable to the State.
    As stated above, this document constitutes EPA's approval of 
Michigan's program of straight delegation of all existing and future 
air toxics standards as they pertain to non-Part 70 sources, except for 
Section 112(r) standards or radionuclide emissions standards. Straight 
delegation means that the State will not promulgate individual State 
rules for each Section 112 standard promulgated by EPA, but will 
implement and enforce without changes the Section 112 standards 
promulgated by EPA. The Michigan program of straight delegation will 
operate as follows: For a future Section 112 standard for which MDEQ 
intends to accept delegation, EPA will automatically delegate the 
authority to implement a Section 112 standard to the State by letter 
unless MDEQ notifies EPA differently within 45 days of EPA final 
promulgation of the standard. MDEQ will incorporate non-part 70 
standards by reference into the State code of regulations as 
expeditiously as practicable, and if possible, within 12 months of 
promulgation by EPA. Upon completion of regulatory action, MDEQ will 
submit to EPA proof of incorporation by reference for that standard. 
EPA will respond with a letter delegating enforcement authority to the 
State.
    Michigan will assume responsibility for the timely implementation 
and enforcement required by the standard, as well as any further 
activities agreed to by MDEQ and EPA. Some activities necessary for 
effective implementation of the standard include receipt of initial 
notifications, recordkeeping, reporting and generally assuring that 
sources subject to the standard are aware of its existence. When deemed 
appropriate, MDEQ will utilize the resources of its Small Business 
Assistance Program to assist in general program implementation. The 
details of this delegation mechanism are set forth in a memorandum of 
agreement between EPA and MDEQ, copies of which are located in the 
docket associated with this rulemaking.

B. Criteria for Approval

    On November 26, 1993, EPA promulgated regulations to provide 
guidance relating to the approval of State programs under Section 
112(l) of the Act. 40 FR 62262. That rulemaking outlined the 
requirements of approval with respect to various delegation options. 
The requirements for approval, pursuant to Section 112(l)(5) of the 
Act, of a program to implement and enforce Federal Section 112 rules as 
promulgated without changes are found at 40 CFR 63.91. Any request for 
approval must meet all section 112(l) approval criteria, as well as all 
approval criteria of Section 63.91. A more detailed analysis of the 
State's submittal pursuant to Section 63.91 is contained in the 
Technical Support Document included in the official file of this 
rulemaking.
    Under Section 112(l) of the Act, approval of a State program is 
granted by the EPA if the Agency finds that it: (1) is ``no less 
stringent'' than the corresponding Federal program, (2) that the State 
has adequate authority and resources to implement the program, (3) the 
schedule for implementation and compliance is sufficiently expeditious, 
and (4) the program is otherwise in compliance with Federal guidance.

C. Analysis

    EPA is approving Michigan's mechanism of delegation for non-part 70 
sources because the State's submittal meets all requirements necessary 
for approval under Section 112(l). The first requirement is that the 
program be no less stringent than the Federal program. The Michigan 
program is no less stringent than the corresponding Federal program or 
rule because the State has requested straight delegation of all 
standards unchanged from the Federal standards. Second, the State has

[[Page 64634]]

shown that it has adequate authority and resources to implement the 
program. Michigan's Natural Resources and Environmental Protection Act 
authorizes MDEQ to issue construction and operating permits to Part 70 
and non-Part 70 sources of regulated pollutants to assure compliance 
with all applicable requirements of the Act. 55 MCL 324.5503(b). The 
authority to issue permits includes the authority to incorporate permit 
conditions that implement Federal Section 112 standards. Furthermore, 
Michigan has the authority to implement each Section 112 regulation, 
emission standard or requirement (regardless of Part 70 applicability), 
perform inspections, request compliance information, incorporate 
requirements into permits and to bring civil and criminal enforcement 
actions to recover penalties and fines. As for non-part 70 sources, 
Michigan will have the authority to enforce each Section 112 
regulation, emission standard or requirement applicable to non-part 70 
sources upon its incorporation into the State code of regulations. 
Adequate resources will be obtained through both State funding and 
Section 105 grant monies awarded to States by EPA to implement the 
program for non-Part 70 sources and through monies from the State's 
Title V program to fund acceptable Title V activities with respect to 
Part 70 sources.
    Third, upon promulgation of a standard, Michigan will immediately 
begin activities necessary for timely implementation of the standard. 
These activities will involve identifying sources subject to the 
applicable requirements and notifying these sources of the applicable 
requirements. Also, upon promulgation of a standard, Michigan will 
expeditiously incorporate by reference the standard into the State code 
of regulations. Such schedule is sufficiently expeditious for approval.
    Fourth, nothing in the Michigan program for straight delegation is 
contrary to Federal guidance.

D. Michigan's Audit Privilege and Immunity Law

    On March 18, 1996, Michigan Governor John Engler signed the State's 
Environmental Audit Privilege and Immunity Law (Michigan's Privilege 
and Immunity Law of 1996), Part 148 of Michigan's Natural Resources and 
Environmental Protection Act. This law provides that sources can hold 
confidential broad categories of information contained in a voluntary 
environmental audit report. The law also provides sources immunity from 
certain State civil and criminal penalties for violations discovered 
through an environmental self audit, provided the violations are 
promptly reported and corrected. EPA believes that Michigan's Privilege 
and Immunity Law of 1996 affected the State's authority to assure 
compliance with and enforce Section 112 standards. In a letter dated 
July 1, 1997, to Russell Harding, Director of MDEQ, EPA stated what 
changes would need to be made to Michigan's Privilege and Immunity Law 
of 1996 in order to have sufficient enforcement authorities to meet, 
inter alia, the approval criteria in Part 63. On November 13, 1997, 
Michigan Governor John Engler signed into law Public Acts 133 and 134 
of 1997 (Michigan's Privilege and Immunity Law of 1997), which is Part 
148 of Michigan's Natural Resources and Environmental Protection Act, 
amending Michigan's Privilege and Immunity Law of 1996. Michigan's 
Privilege and Immunity Law of 1997 was submitted to EPA on November 21, 
1997, in order to address EPA's concerns. In a letter dated December 
12, 1997, EPA stated that with the newly enacted Michigan's Privilege 
and Immunity Law of 1997, along with MDEQ's commitment in a July 1, 
1997 letter on the use of confidentiality agreements and the 
interpretations by the Attorney General, EPA's concerns have been 
addressed and the audit privilege issues have been resolved. With 
Michigan's Privilege and Immunity Law of 1997, Michigan now has 
adequate authority to assure compliance by all sources with each 
applicable standard.

E. Determinations

    In approving this mechanism of delegation, EPA expects that the 
State will obtain concurrence from EPA on any matter involving the 
interpretation of Section 112 of the Clean Air Act or 40 CFR part 63 to 
the extent that implementation, administration, or enforcement of these 
sections have not been covered by EPA determinations or guidance.

III. Final Action

    The EPA is promulgating final approval of the October 12, 1995, 
request by the State of Michigan of a mechanism for straight delegation 
of Section 112 standards unchanged from Federal standards because the 
request meets all requirements of 40 CFR 63.91 and Section 112(l) of 
the Act. Upon the effective date of this action, the implementation and 
enforcement authority of all existing Section 112 standards pertaining 
to non-part 70 sources, excluding Section 112(r) and radionuclide 
emissions standards, which have been incorporated by reference into the 
State code of regulations are delegated to the State of Michigan 
(specifically 40 CFR Part 63 Subpart M, Dry Cleaning, and 40 CFR Part 
63 Subpart T, Halogenated Solvent Cleaning). As for the existing 
Section 112 standards which have not yet been incorporated by reference 
into the State code of regulations, the implementation authority of 
these standards are delegated to the State of Michigan upon the 
effective date of this action, and the enforcement authority will be 
delegated according to the procedures in the MOA. Future delegation of 
the Section 112 standards to the State will occur according to the 
procedures outlined in the MOA upon EPA's promulgation of the standard.
    Effective immediately, all notifications, reports and other 
correspondence required under Section 112 standards should be sent to 
the State of Michigan rather than to the EPA, Region 5, in Chicago. 
Affected sources should send this information to the supervisor of the 
appropriate District office. For sources located in Wayne County, send 
this information also to the Director of Compliance and Enforcement of 
the Wayne County Department of the Environment. For information on the 
District offices or Wayne County office, contact: Michigan Department 
of Environmental Quality, Air Quality Division, 106 West Allegan 
Street, P.O. Box 30260, Lansing, Michigan 48909-7760, 517-373-7023.
    EPA is publishing this action without prior proposal because EPA 
views this as a noncontroversial revision and anticipates no adverse 
comments. However, in a separate document in this Federal Register 
publication, EPA is proposing to approve the State Plan should adverse 
or critical written comments be filed. This action will be effective 
without further notice unless EPA receives relevant adverse written 
comment by December 23, 1998. Should EPA receive such comments, it will 
publish a final rule informing the public that this action will not 
take effect. Any parties interested in commenting on this action should 
do so at this time. If no such comments are received, the public is 
advised that this action will be effective on January 22, 1999.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any State Plan. Each request for revision to a State Plan 
shall be considered separately in light of specific technical, 
economic, and environmental factors and in relation to relevant 
statutory and regulatory requirements.

[[Page 64635]]

IV. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866 review.

B. Executive Order 13045

    This final rule is not subject to Executive Order 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks,'' because it is not an ``economically significant'' action under 
Executive Order 12866.

C. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875 (E.O. 12875), EPA may not issue a 
regulation that is not required by statute and that creates a mandate 
upon a State, local or tribal government, unless the Federal government 
provides the funds necessary to pay the direct compliance costs 
incurred by those governments, or EPA consults with those governments. 
If EPA complies by consulting, E.O. 12875 requires EPA to provide to 
the Office of Management and Budget a description of the extent of 
EPA's prior consultation with representatives of affected State, local 
and tribal governments, the nature of their concerns, copies of any 
written communications from the governments, and a statement supporting 
the need to issue the regulation. In addition, E.O. 12875 requires EPA 
to develop an effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. This rule delegates the Federal air toxics program to the 
MDEQ at MDEQ's request. Accordingly the requirements of section 1(a)of 
E.O. 12875 do not apply to this rule.

D. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084 (E.O. 13084), EPA may not issue a 
regulation that is not required by statute, that significantly or 
uniquely affects the communities of Indian tribal governments, and that 
imposes substantial direct compliance costs on those communities, 
unless the Federal government provides the funds necessary to pay the 
direct compliance costs incurred by the tribal governments, or EPA 
consults with those governments. If EPA complies by consulting, E.O. 
13084 requires EPA to provide to the Office of Management and Budget, 
in a separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, E.O. 13084 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This rule delegates the 
Federal air toxics program to the MDEQ at MDEQ's request. It imposes no 
new requirements. Accordingly the requirements of section 3(b) of E.O. 
13084 do not apply to this rule.

E. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This direct final rule will not have a significant 
impact on a substantial number of small entities because Straight 
delegation of the Section 112 standards unchanged from the Federal 
standards does not create any new requirements, but simply allows the 
State to administer requirements that have been or will be separately 
promulgated. Therefore, because this delegation approval does not 
impose any new requirements, I certify that it does not have a 
significant impact on any small entities affected. Moreover, due to the 
nature of the Federal-State relationship under the CAA preparation of a 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of a State action. The CAA forbids EPA to base its 
actions concerning State plans on such grounds. Union Electric Co., v. 
U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under Section 202 of the Unfunded Mandates Reform Act of 1995, 
signed into law on March 22, 1995, EPA must undertake various actions 
in association with any proposed or final rule that includes a Federal 
mandate that may result in estimated costs to State, local, or tribal 
governments in the aggregate; or to the private sector, of $100 million 
or more. This Federal action merely approves delegation to a State of 
pre-existing requirements under Federal law, and imposes no new 
requirements on the private sector. The cost to the state, local, or 
tribal government, of implementing this program will be less than $100 
million. The State also voluntarily requested this delegation under 
Section 112(l) for the purpose of implementing and enforcing the air 
toxics program with respect to sources not covered by Part 70. Since 
the State was not required by law to seek delegation, this Federal 
action does not impose a mandate on the State.

G. Submission to Congress and the Comptroller General

    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. The EPA will submit a report containing this rule and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to the publication of the rule in the Federal Register. This rule is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

    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 January 22, 1999. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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 63

    Environmental protection, Administrative practice and procedure,

[[Page 64636]]

Air pollution control, Hazardous substances, Intergovernmental 
relations.

    Authority: 42 U.S.C. 7401, et seq.

    Dated: August 26, 1998.
Gail Ginsberg,
Acting Regional Administrator, Region V.
[FR Doc. 98-31076 Filed 11-20-98; 8:45 am]
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