[Federal Register Volume 73, Number 19 (Tuesday, January 29, 2008)]
[Rules and Regulations]
[Pages 5101-5104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1415]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-0024; FRL-8519-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Michigan; Oxides of Nitrogen Regulations, Phase II

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving Michigan's oxides of nitrogen 
(NOX) rules which satisfy the requirements of EPA's 
NOX SIP Call Phase II Rule (the Phase II Rule). We are 
approving these regulations based on Michigan's demonstration that they 
will result in the achievement of the Phase II budget through source 
compliance with rules affecting stationary internal combustion (IC) 
engines which are identified in the NOX plan submittal. 
Limiting NOX emissions from IC engines will enable the State 
to meet the Phase II incremental difference of 1,033 tons during the 
ozone season, thereby improving air quality and protecting the health 
of Michigan citizens.

DATES: This direct final will be effective March 31, 2008, unless EPA 
receives adverse comments by February 28, 2008. If adverse comments are 
received, EPA will publish a timely withdrawal of the direct final 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-2007-0024, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (312) 886-5824.
    4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air 
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: John M. Mooney, Chief, Criteria Pollutant 
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such 
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.

[[Page 5102]]

    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2007-0024. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or e-mail. 
The 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 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. For additional 
instructions on submitting comments, go to Section I of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
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 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 legal holidays. We 
recommend that you telephone Douglas Aburano, Engineer, at (312) 353-
6960 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Engineer, Criteria 
Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 353-6960, [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. What should I consider as I prepare my comments for EPA?
II. Background
III. Who is affected by the new rule and the amended rules?
IV. What does approval of this rule accomplish?
V. How are owners and operators expected to comply with the new 
requirement?
VI. What action is EPA taking today?
VII. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--The EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. Background

    On October 27, 1998 (63 FR 57356), EPA issued the NOX 
SIP Call, which required 22 states, including Michigan, to prepare 
plans to reduce the transport of ozone throughout the eastern part of 
the United States. This was to be accomplished by reducing emissions of 
NOX from selected source categories, primarily major fuel 
burning sources, using available cost-effective measures. The rule 
established a cap on emissions of NOX from each state. 
States had flexibility in determining which fuel burning sources were 
to be included in their rules. For the most part, states targeted 
NOX reductions from electric utilities and other large 
industrial boilers, cement kilns, and IC engines as sources which could 
be controlled in a cost-effective manner. Background information in 
this regard is available from documents prepared by EPA, and can be 
found at http://www.epa.gov/ttn/rto/otag/index.html.
    Some states and industry challenged the rule. In Michigan v. EPA, 
213 F.3d 663 (DC Cir. 2000), the Court largely upheld EPA's rulemaking. 
It did, however, remand a portion of the rule concerning IC engines to 
EPA for further notice and public comment.
    Subsequent to the Court's decision, EPA proceeded initially with 
rules concerning electric generating units (EGU), industrial boilers 
(non-EGU) and cement kilns as Phase I sources. The IC engines fell into 
the Phase II group, to be addressed at a later date. Michigan adopted 
its Phase I rules and submitted them to EPA. We conditionally approved 
them on April 16, 2004 (69 FR 20548) and finally approved them on May 
4, 2005 (70 FR 23029).
    On April 21, 2004 (69 FR 21603), EPA issued the Phase II Rule. It 
required most states with Phase I budget programs to submit a Phase II 
plan to achieve incremental reductions not addressed by Phase I rules. 
The Phase II Rule also identified the additional NOX budget 
reductions (incremental reductions) that states would have to achieve 
by regulating large (greater than one ton per day emissions) IC 
engines. EPA calculated the amount of incremental reductions required 
by re-calculating the overall budget to reflect a control level of 82 
percent from natural gas-fired lean-burn IC engines with greater than 
one ton per day NOX emissions. MDEQ drafted the new rule (R 
336.1818 Emission limitations for stationary internal combustion 
engines, also known as Rule 818) based on guidance from EPA dated 
September 19, 2004, which contained an example model rule.
    The public process for Rule 818 started on April 1, 2006 when the 
rule was made available for public comment in the Michigan State 
Register. On April 3, 2006, notices that the rule was available for 
public comment were published in four newspapers throughout Michigan. 
Both the notices in the Michigan State Register and the newspapers 
indicated that a public hearing would be held on the rule on May 9, 
2006.
    On December 22, 2006, the Michigan Department of Environmental 
Quality (MDEQ) submitted its Phase II rules to EPA. MDEQ sent 
additional follow-up

[[Page 5103]]

information addressing the budget demonstration for this source 
category in a March 12, 2007 letter requesting EPA approval. Because 
Michigan adopted EPA's model rule in which was used to calculate the 
state's Phase II budget, it follows that Michigan's Phase II budget 
will be met.
    In the Phase II Rule, EPA calculated the 2007 base year emissions 
inventory from which Michigan needed additional reductions of 1,033 
tons per ozone season. EPA based the calculation upon achieving an 82 
percent reduction at all IC engines in Michigan with greater than one 
ton per day of NOX emissions.

III. Who is affected by the new rule and the amended rules?

    Rule 818 applies only in the fine grid portion of Michigan, as this 
is the only portion of Michigan where the NOX SIP Call (both 
Phases I and II) applies (see 69 FR 21627-8). Michigan's fine grid 
includes the following counties: Allegan, Barry, Bay, Berrien, Branch, 
Calhoun, Cass, Clinton, Eaton, Genesee, Gratiot, Hillsdale, Ingham, 
Ionia, Isabella, Jackson, Kalamazoo, Kent, Lapeer, Lenaee, Livingston, 
Macomb, Mecosta, Midland, Monroe, Montcalm, Muskegon, Newaygo, Oakland, 
Oceana, Ottawa, Saginaw, Saint Clair, Saint Joseph, Sanilac, 
Shiawassee, Tuscola, Vanburen, Washtenaw and Wayne. Rule 818 applies to 
any person who owns or operates a large stationary reciprocating IC 
engine and other smaller stationary internal combustion engines that 
are included in a compliance plan. A large IC engine is defined as an 
engine that emits more than one ton of NOX per ozone season 
day, based on operation during the 1995 ozone season.

IV. What does approval of this rule accomplish?

    EPA published the incremental budget for affected states including 
Michigan in the April 21, 2004, Federal Register (69 FR 21604). The 
State's budget demonstration shows that the State will be able to 
reduce emissions of NOX to meet the Phase II incremental 
difference of 1,033 tons of NOX for the ozone season.
    Approval of Rule 818 will provide a means by which the State of 
Michigan will meet the required reductions of NOX emissions 
from IC engines during the ozone season. The State rule affects 
NOX SIP Call IC engines, as well as any other stationary 
internal combustion engine subject to NOX control in the 
State's rule, within Michigan's fine grid. The emission reductions for 
some large engines will be permanent and year-round resulting from low 
emission combustion measures retrofitted to existing engines. Low 
emission combustion measures cannot be cycled off once the changes are 
made to the engine. The combustion control technology is a permanent, 
physical change to the design and operation of the engine which, when 
implemented, is expected to reduce emissions of NOX year-
round. The State's rules include provisions which the source must 
follow to demonstrate compliance with the rules. EPA expects 
environmental benefits and health implications to be permanent.

V. How are owners and operators expected to comply with the new 
requirement?

    The State Rule 818 includes a requirement that an owner or operator 
of a large IC engine shall not operate an affected engine during the 
ozone period, unless there is a compliance plan which meets the 
requirements of the rule. Owners and operators of subject large IC 
engines were required to submit compliance plans to the State by 
October 1, 2006, and the rules prohibit operation of affected engines 
after May 1, 2007, except in compliance with the requirements. Included 
in the compliance plan is a requirement that the projected 
NOX emissions from the engine, in grams per break 
horsepower-hour, be included in a federally enforceable permit. This 
information will enable the State to determine if reductions from the 
covered sources should meet the Phase II budget increment. The failure 
of a source to meet the required NOX reductions is a 
violation of the provisions of the permit. The State of Michigan is 
expected to enforce non-compliance with its rules by reviewing 
monitoring and testing information submitted by the owners and 
operators of the affected engines.

VI. What action is EPA taking today?

    EPA is approving Rule 818 submitted by Michigan. We are taking this 
action because we have determined that the rule satisfies the 
requirements of the Clean Air Act and the NOX SIP Call Phase 
II rules. The State has shown, through its budget demonstration, that 
it can achieve the Phase II budget increment through source compliance 
with the State's rules affecting IC engines and the State's permitting 
program. Meeting the Phase II budget increment and the Phase I 
increment means the State will meet its total overall ozone season 
NOX budget and bring about reductions in ozone 
concentrations in the State and downwind from Michigan.

VII. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, September 30, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget.

Paperwork Reduction Act

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

Regulatory Flexibility Act

    This action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed 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 rule proposes to approve pre-existing requirements 
under state law and does not impose any additional enforceable duty 
beyond that required by state law, it 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).

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 (64 FR 43255, August 
10, 1999). This action merely proposes to approve a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act.

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

[[Page 5104]]

Federal Government and Indian tribes, as specified by Executive Order 
13175 (65 FR 67249, November 9, 2000).

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

    This rule 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 economically significant.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant regulatory action,'' 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).

National Technology Transfer Advancement Act

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

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements.

    Dated: January 11, 2008.
Gary Gulezian,
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 an entry in Part 8 
for ``R 336.1818'' to read as follows:


Sec.  52.1170  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Michigan Regulations
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                                                          State
     Michigan  citation               Title          effective date     EPA approval date          Comments
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                                                  * * * * * * *
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                        Part 8. Emission Limitations and Prohibitions--Oxides of Nitrogen
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                                                  * * * * * * *
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R 336.1818.................  Emission limitations          11/20/06  1/29/08 [Insert page
                              for stationary                          number where the
                              internal combustion                     document begins].
                              engines.
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[FR Doc. E8-1415 Filed 1-28-08; 8:45 am]
BILLING CODE 6560-50-P