[Federal Register Volume 66, Number 238 (Tuesday, December 11, 2001)]
[Notices]
[Pages 64038-64039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30451]



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ENVIRONMENTAL PROTECTION AGENCY

[AD-FRL-7115-3]


Notice of Deficiency for Clean Air Act Operating Permit Program 
in Michigan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of deficiency.

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SUMMARY: Pursuant to its authority at 40 CFR 70.10, EPA is publishing 
this Notice of Deficiency (NOD) for the State of Michigan's Clean Air 
Act title V operating permit program. The NOD is based upon EPA's 
finding that the state's requirements for administrative permit 
amendments do not comply with the requirements of 40 Code of Federal 
Regulations (CFR) part 70 and the Act. Publication of this document is 
a prerequisite for withdrawal of the state's title V program approval, 
but EPA is not withdrawing this program through this action.

EFFECTIVE DATE: November 30, 2001. Because this NOD is an adjudication 
and not a final rule, the Administrative Procedure Act's 30 day 
deferral of the effective date of a rule does not apply.

FOR FURTHER INFORMATION CONTACT: Beth Valenziano, EPA Region 5 (AR-
18J), 77 W. Jackson Boulevard, Chicago, Illinois 60604, (312) 886-2703, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On May 22, 2000, EPA promulgated a rulemaking that extended the 
interim approval period of 86 operating permits programs until December 
1, 2001 (65 FR 32035). Sierra Club and the New York Public Interest 
Research Group challenged the action. In settling the litigation, EPA 
agreed to publish a document in the Federal Register, so that the 
public would have the opportunity to identify and bring to EPA's 
attention alleged deficiencies in title V programs. The EPA published 
that document on December 11, 2000. 65 FR 77376.
    As stated in the Federal Register document, EPA agreed to respond 
by December 1, 2001 to timely public comments on programs that have 
obtained interim approval; and EPA agreed to respond by April 1, 2002 
to timely comments on fully approved programs. The EPA is publishing a 
NOD if the Agency determines that a deficiency exists, and is notifying 
the commenter in writing to explain the reasons for not making a 
finding of deficiency on other issues. The EPA received two timely 
comment letters pertaining to the Michigan title V program. In 
reviewing the commenters' concerns, EPA agrees that one commenter has 
identified a deficiency in Michigan's title V operating permit program 
relating to the state's administrative permit amendment regulations. 
The EPA is addressing that deficiency in this document. In addition, 
the commenters raised other issues that EPA has determined are not 
deficiencies. The EPA is responding to the commenters in writing, 
explaining the basis for EPA's decision.
    Under EPA's permitting regulations, citizens may, at any time 
petition EPA regarding alleged deficiencies in state title V operating 
permit programs. In addition, EPA may on its own identify deficiencies. 
If, in the future, EPA agrees with a new citizen petition or otherwise 
identifies deficiencies, EPA may issue a new NOD.

II. Description of Action

    The EPA is publishing this NOD to notify the state of Michigan and 
the public that EPA has found a deficiency in the Michigan title V 
operating permit program. This document is being published to satisfy 
40 CFR 70.10(b)(1), which provides that EPA shall publish in the 
Federal Register a notice of any determination that a state's title V 
permitting program no longer complies with the requirements of 40 CFR 
part 70 and the Clean Air Act (Act). The deficiency being noticed today 
relates to Michigan's regulatory authority to grant a permit shield 
from enforcement for certain administrative amendments.
    The EPA's regulations at 40 CFR 70.7(d)(4) do not allow a state 
operating permit program to grant a permit shield for the following 
administrative permit amendments specified in 40 CFR 70.7(d)(1)(i)-
(iv): a change that corrects typographical errors; a change in the 
name, address or phone number of the responsible official or other 
contact person; a change that provides for more frequent monitoring and 
reporting; and a change in the ownership or operational control of a 
source where no other changes to the permit are necessary. However, 
Michigan's rules allow a permit shield for such amendments. 
Specifically, Michigan Rule (R) 336.1216(1)(b)(iii) provides that the 
permit shield as described in 40 CFR 70.6(f) and R 336.1213(6) applies 
to administrative amendments made pursuant to R 336.1216(a)(i) through 
(iv) once the changes have been approved by the Michigan Department of 
Environmental Quality (MDEQ). R 336.1216(a)(i) through (iv) allows 
administrative amendments for the changes specified in 40 CFR 
70.7(d)(1)(i) through (iv). Because Michigan's rules impermissibly 
allow for a permit shield for these administrative amendments, the 
state's program does not comply with the requirements of the Act and 40 
CFR part 70.
    Title V provides for the approval of state programs for the 
issuance of operating permits that incorporate the applicable 
requirements of the Act. To receive title V program approval, a state 
permitting authority must submit a program to EPA that meets certain 
minimum criteria, and EPA must disapprove a program that fails, or 
withdraw an approved program that subsequently fails, to meet these 
criteria. These criteria include requirements for revising operating 
permits, including administrative amendments. 40 CFR 70.4(b)(16); see 
40 CFR 70.7(d). Part 70 further provides that a permitting authority 
may grant a permit shield only in certain circumstances. 40 CFR 70.6(f) 
and 70.7(d)(4).
    40 CFR 70.4 and 70.10(b) and (c) provide that EPA may withdraw a 
part 70 program approval, in whole or in part, whenever the approved 
program no longer complies with the requirements of part 70 and the 
permitting authority fails to take corrective action. 40 CFR 
70.10(c)(1)(i) lists a number of potential bases for program 
withdrawal, including the case where the permitting authority's legal 
authority does not meet the requirements of 40 CFR part 70.
    40 CFR 70.10(b), which sets forth the procedures for program 
withdrawal, requires as a prerequisite to withdrawal that the EPA 
Administrator notify the permitting authority of any finding of 
deficiency by publishing a document in the Federal Register. Today's 
document satisfies this requirement and constitutes a finding of 
deficiency. According to 40 CFR 70.10(b)(2), if Michigan has not taken 
``significant action to assure adequate administration and enforcement 
of the program'' within 90 days after issuance of this notice of 
deficiency, EPA may withdraw the state program, apply any of the 
sanctions specified in section 179(b) of the Act, and/or promulgate, 
administer, and enforce a federal title V program. 40 CFR 70.10(b)(3) 
provides that, if the state has not corrected the deficiency within 18 
months after the date of the finding of deficiency and issuance of the 
NOD, EPA will apply the sanctions under section 179(b) of the Act, in 
accordance with section 179(a) of the Act. In addition, 40 CFR 
70.10(b)(4) provides that, if the state has not corrected the 
deficiency within 18 months after the date of the finding of

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deficiency, EPA will promulgate, administer, and enforce a whole or 
partial program within 2 years of the date of the finding. The 
sanctions will go into effect unless the state has corrected this 
deficiency within 18 months after signature of this document.
    This document is not a proposal to withdraw the state's title V 
program. Consistent with 40 CFR 70.10(b)(2), EPA will wait at least 90 
days to determine whether the state has taken significant action to 
correct the deficiency.

III. EPA Responses to Citizen Comments

    As discussed above, EPA is responding in writing to all timely 
comments that citizens submitted pursuant to the settlement agreement. 
For all comments not resulting in an NOD, EPA is responding directly to 
the commenter, explaining the reasons why EPA did not find that an NOD 
was warranted. EPA Region 5 will also post its response letters on the 
Internet at http://yosemite.epa.gov/r5/ardcorre.nsf/Title+V+Program+Comments. EPA Region 5 includes the states of Michigan, 
Minnesota, Illinois, Indiana, Ohio, and Wisconsin. Finally, EPA will 
publish a national notice of availability in the Federal Register 
notifying the public that EPA has responded in writing to the 
commenters and explaining how the public may obtain a copy of EPA's 
responses.

IV. Administrative Requirements

    Under section 307(b)(1) of the Act, petitions for judicial review 
of today's action may be filed under the United States Court of Appeals 
for the appropriate circuit within 60 days of December 11, 2001.

(Authority: 42 U.S.C. 7401-7671q.)

    Dated: November 30, 2001.
Thomas V. Skinner,
Regional Administrator, Region 5.
[FR Doc. 01-30451 Filed 12-6-01; 3:44 pm]
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