[Federal Register Volume 68, Number 217 (Monday, November 10, 2003)]
[Rules and Regulations]
[Pages 63735-63737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28213]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[MI 82-02; FRL-7585-3]


Clean Air Act Final Approval of Operating Permit Program 
Revision; Michigan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action to approve revisions to 
Michigan's title V air operating permit program, including revisions to 
Michigan Administrative Rule (R) 336.1216. R 336.1216(1)(b)(iv) no 
longer applies the permit shield provisions to certain administrative 
permit amendments. The EPA's final approval of this rule revision 
resolves the deficiency identified in EPA's Notice of Deficiency (NOD), 
published in the Federal

[[Page 63736]]

Register on December 11, 2001 (66 FR 64038). This final action also 
removes any resulting consequences, including sanctions, with respect 
to the December 11, 2001 NOD.

EFFECTIVE DATE: December 10, 2003.

ADDRESSES: Copies of the State's submittal and other supporting 
information used in developing the final approval are available for 
inspection during normal business hours at the following location.
    EPA Region 5, 77 West Jackson Boulevard (AR-18J), Chicago, Illinois 
60604. Please contact the person listed below to arrange a time to 
inspect the submittal.

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

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following:

I. What is the History of Michigan's Title V Operating Permit 
Program?
II. What is the Program Change That EPA is Approving?
III. What is Involved in This Final Action?
IV. Statutory and Executive Order Reviews

I. What Is the History of Michigan's Title V Operating Permit Program?

    As required under Subchapter V of the Clean Air Act (Act), EPA has 
promulgated regulations that define the minimum elements of an 
approvable state operating permit program and the corresponding 
standards and procedures by which EPA will approve, oversee, or 
withdraw approval of state operating permit programs. These regulations 
are codified at 40 Code of Federal Regulations (CFR) part 70. Pursuant 
to Subchapter V, generally known as title V, states and local 
permitting authorities developed, and submitted to EPA, programs for 
issuing operating permits to all major stationary sources and to 
certain other sources.
    The Michigan Department of Environmental Quality submitted 
Michigan's title V operating permit program for EPA approval on May 16, 
1995, with supplements submitted on July 20, 1995, October 6, 1995, 
November 7, 1995, and January 8, 1996. The EPA granted interim approval 
of the Michigan title V program on January 10, 1997 (62 FR 1387), and 
the program became effective on February 10, 1997. Subsequently, based 
on the interim approval corrections that the State submitted on June 1, 
2001 and September 20, 2001, EPA granted final full approval of the 
Michigan title V program, effective November 30, 2001. The EPA 
published the final full program approval in the Federal Register on 
December 4, 2001 (66 FR 62949).
    Pursuant to its authority at 40 CFR 70.10(b), EPA published an NOD 
for Michigan's title V operating permit program on December 11, 2001 
(66 FR 64038). The NOD was based upon EPA's finding that Michigan's 
regulation granting a permit shield for certain administrative permit 
amendments did not meet federal requirements for program approval. On 
May 7, 2003 and May 21, 2003, Michigan submitted to EPA a revision to 
its title V program correcting this program deficiency. Because 
Michigan's May 2003 submittals included revisions to R 336.1216 that 
the State had not yet finalized, EPA proposed approval of the draft 
State rule with final approval contingent upon Michigan promulgating 
and submitting a final rule identical in substance to the draft rule. 
The EPA's proposed approval of Michigan's title V operating permit 
program revisions was published on June 23, 2003 (68 FR 37110-37112). 
The EPA received no comments on the proposal. On August 18, 2003, 
Michigan submitted for EPA approval its final R 336.1216 and supporting 
documentation as a revision to Michigan's title V program. Michigan's 
final R 336.1216 is identical to the draft rule Michigan submitted to 
EPA on May 7, 2003.

II. What Is the Program Change That EPA Is Approving?

    Michigan has revised its permit modification regulation, R 
336.1216, to remove the permit shield provision for certain types of 
administrative permit amendments. Michigan's rule is now consistent 
with 40 CFR 70.7(d)(4), which does not allow a permit shield for the 
types of changes described below. The permit shield provisions at 40 
CFR 70.6(f) offer enforcement protection in certain prescribed 
situations. Michigan's revised R 336.1216(1)(b)(iv) states: ``The 
permit shield provided under R 336.1213(6) does not extend to 
administrative amendments made pursuant to subdivision (a)(i) to (iv) 
of this subrule.'' R 336.1216(1)(a) (i) through (iv) allows 
administrative amendments for the following types of changes: 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. These types of 
administrative permit amendments are the same as those specified in the 
federal rules at 40 CFR 70.7(d)(1) (i)-(iv). This rule revision 
resolves the deficiency identified in EPA's NOD, published in the 
Federal Register on December 11, 2001 (66 FR 64038).
    In addition, R 336.1216 includes other minor changes to Michigan's 
permit modification rule, including changes to the citation method for 
Michigan laws, and a clarification to R 336.1216(1)(b)(iii) regarding 
the implementation of administrative permit amendment changes made 
pursuant to R 336.1216(1)(a) (i) through (iv). This clarification is 
consistent with 40 CFR 70.7(d)(3)(iii) and 70.7(e)(2)(v).

III. What Is Involved in This Final Action?

    The EPA is approving revisions to the title V operating permit 
program submitted by the State of Michigan on May 7, 2003, May 21, 
2003, and August 18, 2003. The program submittals include revisions to 
Michigan's operating permit modification rule, R 336.1216. These 
revisions meet the requirements of title V and 40 CFR part 70. R 
336.1216(1)(b)(iv) is now consistent with 40 CFR 70.7(d)(4). Michigan's 
program revision satisfactorily addresses the program deficiency 
identified in EPA's NOD, published on December 11, 2001 (66 FR 64038). 
Pursuant to 40 CFR 70.10(b), EPA finds that Michigan is not subject to 
sanctions for the deficiency identified in the December 11, 2001 
notice. Further, EPA is not obligated to promulgate a federal permit 
program for the December 11, 2001 NOD.
    Consistent with EPA's final full approval of Michigan's title V 
program (66 FR 62951), this approval does not extend to Indian Country, 
as defined in 18 United States Code 1151.

IV. Statutory and Executive Order Reviews

Executive Order 12866; Regulatory Planning and Review

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this action is not a ``significant 
regulatory action'' and therefore is not subject to review by the 
Office of Management and Budget.

Executive Order 13211; Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    For this reason, 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).

[[Page 63737]]

Regulatory Flexibility Act

    This action merely approves state law as meeting federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this 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 action approves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain an unfunded mandate nor does 
it significantly or uniquely affect small governments, as described in 
the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

Executive Order 13175 Consultation and Coordination With Indian Tribal 
Governments

    This 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, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, November 9, 2000).

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, ``Federalism'' (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Act.

Executive Order 13045 Protection of Children From Environmental Health 
and Safety Risks

    This final approval 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 is not a significant 
regulatory action under executive order 12866.

National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 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 impracticable. In 
reviewing program submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Act. Absent a prior 
existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a program 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 
Act. Therefore, the requirements of section 12(d) of the NTTA do not 
apply.

Civil Justice Reform

    As required by section 3 of Executive Order 12988 (61 FR 4729, 
February 7, 1996), in issuing this rule, EPA has taken the necessary 
steps to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct.

Governmental Interference With Constitutionally Protected Property 
Rights

    EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the rule in accordance 
with the ``Attorney General's Supplemental Guidelines for the 
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued 
under the executive order, and has determined that the rule's 
requirements do not constitute a taking.

Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Congressional Review Act

    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 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).

Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 9, 2004. 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 Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Dated: October 31, 2003.
Bharat Mathur,
Acting Regional Administrator, Region V.

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40 CFR part 70 is amended as follows:

PART 70--[AMENDED]

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1. The authority citation for part 70 continues to read as follows:

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


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2. Appendix A to part 70 is amended by adding paragraph (a)(4) to the 
entry for Michigan to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

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Michigan

    (a) * * *
    (4) Department of Environmental Quality: Program revisions 
submitted on May 7, 2003, May 21, 2003, and August 18, 2003, 
including Michigan Administrative Rule 336.1216; submittals 
satisfactorily address EPA's Notice of Program Deficiency, published 
on December 11, 2001 (66 FR 64038). Final full approval of these 
revisions is effective December 10, 2003.
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[FR Doc. 03-28213 Filed 11-7-03; 8:45 am]
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