[Federal Register Volume 73, Number 180 (Tuesday, September 16, 2008)]
[Proposed Rules]
[Pages 53401-53403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21620]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-1043; FRL-8712-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Michigan; PSD Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove certain revisions to the State 
of Michigan's prevention of significant deterioration (PSD) State 
Implementation Plan (SIP), and in the alternative to approve the 
revisions if the deficiencies in the rules involved are corrected, as 
proposed by Michigan, and approved by EPA. These revisions are included 
in Michigan Rule R 336.2816, and set out the mechanisms which 
facilitate the participation of a potentially affected Federal Land 
Manager (FLM) in the State's permitting process for purposes of 
protecting either the increment or the Air Quality-Related Values 
(AQRVs) associated with a Class I area from potential impacts from a 
proposed major source or major modification. The Michigan Department of 
Environmental Quality (MDEQ) submitted these revisions as part of the 
SIP package on December 21, 2006. In a separate action in today's 
Federal Register, EPA is conditionally approving all other portions of 
Michigan's PSD SIP revision submission.

DATES: Comments must be received on or before October 16, 2008.

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: [email protected].
     Fax: (312)886-5824.
     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. 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.
    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. 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 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 U.S. 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.

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, [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. What Is Being Addressed in This Document?
III. What Are the Changes That EPA Is Proposing To Disapprove and To 
Approve?
IV. What Action Is EPA Taking?
V. Statutory and Executive Order Reviews

I. What Should I Consider as I Prepare My Comments for EPA?

    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--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. What Is Being Addressed in This Document?

    MDEQ submitted Michigan Air Pollution Control Rules, Part 18, Rules 
R 336.2801 to R 336.2819 and R 336.2823(1) to (14) (``Part 18'') to EPA 
on December 21, 2006, for EPA approval and inclusion into the Michigan 
SIP. Part 18 relates to Michigan's PSD permit program. Michigan adopted 
revisions to Part 18 on December 4, 2006. Prior to approval of 
Michigan's submitted PSD program, EPA delegated to Michigan

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(via delegation letter dated September 26, 1988) the authority to issue 
PSD permits through the Federal PSD rules at 40 CFR 52.21.
    On January 9, 2008, EPA proposed to conditionally approve 
Michigan's PSD SIP rules under section 110 of the Clean Air Act (CAA). 
(73 FR 1570, January 9, 2008). During the public comment period, EPA 
received a number of comments on our proposal. A summary of the 
comments and our answers are included in a separate action published in 
today's Federal Register, in which EPA is conditionally approving the 
remainder of the SIP submittal.
    Michigan Rule R 336.2816 is based on 40 CFR 51.166(p)(1)-(7), which 
sets out the mechanisms which facilitate the participation of the FLM 
in the State's permitting process for purposes of protecting either the 
increment or the AQRVs associated with a Class I area from potential 
impacts from a proposed major source or major modification.
    EPA has determined that Michigan Rule R 336.2816, as submitted, is 
not consistent with 40 CFR 51.166(p). Specifically, Michigan Rule R 
332.2816(2)(a) does not include the requirements of 40 CFR 
51.166(p)(3), under which a plan must provide a mechanism whereby the 
FLM may present to the state a demonstration of adverse impacts to 
AQRVs from a proposed source or modification, notwithstanding that the 
change in air quality resulting from this proposed source or 
modification would not cause or contribute to an exceedence of the 
maximum allowable increase for the Class I area. In such cases, where 
the state concurs with the FLM's demonstration, the State does not 
issue a permit. Additionally, EPA sought clarification from the State 
as to how it planned to implement certain State rules corresponding to 
the variance provisions contained in 40 CFR 51.166(p)(4), (5), and (6).
    On November 30, 2007, in a letter from Steven Chester, Director, 
MDEQ, to the Regional Administrator, Michigan committed, among other 
things, to making changes to Michigan Rule R 336.2816 consistent with 
the requirements at 40 CFR 51.166(p). Based on this commitment, EPA 
proposed to conditionally approve Michigan Rule R 336.2816.
    During the comment period, commenters raised concerns that, insofar 
as Michigan Rule R 336.2816 does not fully implement the regulatory 
mechanism by which an FLM may participate in the State's permitting 
process, EPA should act to ensure that the SIP contains these 
requirements until such time as the State promulgates consistent 
regulations.
    Because Michigan currently implements the Federal PSD program under 
EPA's delegation of 40 CFR 52.21, a conditional approval of Michigan 
Rule R 336.2816 would have made the Michigan SIP less stringent than 
the currently applicable, Federally delegated program. Therefore, EPA 
is proposing to disapprove Michigan's submittal as it relates to 
Michigan Rule R 336.2816. Michigan will retain its Federal delegation 
of authority under 40 CFR 52.21(p) until such time as the State submits 
promulgated rules equivalent to 40 CFR 51.166(p) and those rules are 
approved into its SIP. Retention of the delegated program until such 
time as Michigan promulgates and EPA approves a corrective rule will 
ensure that the provisions of 40 CFR 51.166(p) will continue to apply, 
thereby avoiding any regulatory gap, and ensuring full participation of 
the FLM, as appropriate, in State permitting decisions.
    In the alternative, EPA is proposing to approve Michigan's revised 
Michigan Rule R 336.2816 if the rule is revised to meet the 
requirements set forth in Federal rule 40 CFR 51.166(p). In its letter 
to EPA dated November 30, 2007, Michigan has committed to make this 
revision to its rule.
    Michigan is not authorized to carry out its Federally approved air 
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 CAA program in 
Indian Country.

III. What Are the Changes That EPA Is Proposing To Disapprove and To 
Approve?

    EPA is proposing to disapprove the following section of ``Part 18, 
Prevention of Significant Deterioration of Air Quality'' of Michigan's 
Air Pollution Control Rules: ``R 336.2816, Sources Impacting Federal 
Class I Areas--additional requirements.'' In the alternative, EPA is 
proposing to approve this same section of Michigan's Rule R 336.2816, 
if the rule is revised to meet the requirements set forth in Federal 
rule 40 CFR 51.166(p), as Michigan has committed to do in its letter to 
EPA dated November 30, 2007.

IV. What Action Is EPA Taking?

    For reasons stated above, EPA is proposing to disapprove certain 
revisions to Michigan's SIP, specifically Michigan Rule R 336.2816, 
Sources Impacting Federal Class I Areas; additional requirements. EPA 
is, in the alternative, proposing to approve Michigan Rule R 336.2816 
when the rule is revised to meet the requirements set forth in Federal 
rule 40 CFR 51.166(p), as Michigan has committed to do in its letter to 
EPA dated November 30, 2007.

What Is the Effect of the Proposed Disapproval?

    Under section 110(k)(3) of the CAA, EPA may fully approve or 
disapprove a State submittal. Where portions of the State submittal are 
separable, EPA may approve portions of the submittal that meet the 
requirements of the CAA, and disapprove the portions of the submittal 
that do not meet the requirements of the CAA. (57 FR 13566, April 16, 
1992.) Elsewhere in today's Federal Register, EPA is conditionally 
approving the remaining elements of the State's December 21, 2006 
submittal. Under today's proposed disapproval, Michigan will retain its 
Federal delegation of authority under 40 CFR 52.21(p) to administer 
Michigan Rule R 336.2816 until such time as the State submits 
promulgated rules equivalent to 40 CFR 51.166(p) and these rules are 
approved into its SIP.

What Is Our Basis for Proposed Disapproval of Michigan's Rules?

    The State's current Michigan Rule R 336.2816 is not consistent with 
40 CFR 51.166(p), which sets out the mechanisms which facilitate the 
participation of the FLM in the State's permitting process for purposes 
of protecting either the increment or the AQRVs associated with a Class 
I area from potential impacts from a proposed major source or major 
modification.

What Is Our Basis for Proposed Approval of Michigan's Rules?

    The State has committed to revise current Michigan Rule R 336.2816, 
which sets out the mechanisms which facilitate the participation of the 
FLM in the State's permitting process for purposes of protecting either 
the increment or the AQRVs associated with a Class I area from 
potential impacts from a proposed major source or major modification, 
by promulgating rules equivalent to 40 CFR 51.166(p). The State has 
formalized this commitment in a letter to EPA dated November 30, 2007. 
EPA has reviewed the State's proposed regulatory changes and has

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made a preliminary determination that they are consistent with 40 CFR 
51.166(p). Once properly promulgated by the State, EPA proposes to 
approve them into the State's SIP. A copy of the proposed revised rules 
can be seen at http://www.regulations.gov (add the docket number EPA-
R05-OAR-2007-1043 to Advanced Docket Search option). If Michigan 
submits these revised rules to EPA for final approval, EPA plans to 
finalize the approval without an additional comment period. Any party 
interested in commenting on whether Michigan's proposed revision to 
Michigan Rule R 336.2816 meets the requirements of 40 CFR 51.166(p) 
should do so during the comment period on this action.

V. 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 proposed 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 proposed 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 CAA.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This proposed 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 (65 FR 67249, November 9, 2000). Nevertheless, EPA 
anticipates providing outreach to tribes located in Michigan and other 
potentially affected areas regarding this proposed rulemaking.

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

    This proposed 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 proposes approval of 
a state rule implementing a Federal standard.

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 CAA. 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 
CAA. Therefore, the requirements of section 12(d) of the NTTAA do not 
apply.

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: August 25, 2008.
Lynn Buhl,
Regional Administrator, Region 5.
[FR Doc. E8-21620 Filed 9-15-08; 8:45 am]
BILLING CODE 6560-50-P