[Federal Register Volume 82, Number 156 (Tuesday, August 15, 2017)]
[Proposed Rules]
[Pages 38651-38654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17230]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-1092; FRL-9966-14-Region 5]


Air Plan Approval; Michigan Minor New Source Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve certain changes to the Michigan State Implementation Plan 
(SIP). This action relates to changes to the Permit to Install (PTI) 
requirements of the Michigan Rules submitted on November 12, 1993; May 
16, 1996; April 3, 1998; September 2, 2003; March 24, 2009; and 
February 28, 2017.

DATES: Comments must be received on or before September 14, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-1092 at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the For Further Information Contact section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Rachel Rineheart, Environmental 
Engineer, Air Permits Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,

[[Page 38652]]

Chicago, Illinois 60604, (312) 886-7017, [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. Background
II. Review of State Submittals
III. What action is EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background

    Section 110(a)(2)(C) of the Clean Air Act (CAA) requires that the 
SIP include a program to provide for the ``regulation of the 
modification and construction of any stationary source within the areas 
covered by the plan as necessary to assure that national ambient air 
quality standards are achieved.'' This includes a program for 
permitting construction and modification of both major sources and 
minor sources that the State deems necessary to protect air quality. 
The State of Michigan's minor source PTI rules are contained in Part 2 
of the Michigan Administrative Code. EPA last approved changes to the 
Part 2 rules in 1982. The Michigan Department of Environmental Quality 
(MDEQ) has submitted several Part 2 revision packages since that time; 
however, EPA has not taken a final action on any of the submittals. The 
following table provides a summary of the various state submittals with 
the most recent version of each section of the Michigan Rule 
highlighted in bold.

------------------------------------------------------------------------
                           State
       Submittal         effective    Submittal       Rules submitted
                            date         date            336.1xxx
------------------------------------------------------------------------
1.....................   04/20/1989   11/12/1993  240, 241.
                         04/17/1992  ...........  201, 283.
                         11/18/1993  ...........  278, 279, 280, 281,
                                                   282, 284, 285, 286,
                                                   287, 288, 289, 290.
2.....................   07/26/1995   05/16/1996  201, 205, 208
                                                   (rescinded), 209,
                                                   219, 278, 279, 280,
                                                   281, 282, 283, 284,
                                                   285, 286, 287, 288,
                                                   289, 290.
3.....................   12/12/1996   04/03/1998  201a, 205.
4.....................   06/13/1997   08/20/1998  278, 283, 284, 285,
                                                   286, 287, 290.
5.....................   07/01/2003   09/02/2003  201, 201a, 202, 203,
                                                   204, 205, 206, 207,
                                                   212, 216, 219, 240,
                                                   241, 278, 278a, 279
                                                   (rescinded), 281,
                                                   282, 284, 285, 287,
                                                   289, 299.
6.....................   06/20/2008   03/24/2009  201, 202, 205, 207,
                                                   219, 240, 241, 278,
                                                   281, 284, 285, 288,
                                                   299.
7.....................   12/20/2016    2/21/2017  278a, 280, 281, 282,
                                                   283, 284, 285, 286,
                                                   287, 288, 289, 290.
------------------------------------------------------------------------

    EPA published a proposed disapproval of the 1993, 1996, and 1998 
submittals on November 9, 1999; however, EPA never published a final 
disapproval. The changes included in the 2003, 2009, and 2017 
submittals were primarily intended to address disapproval issues 
identified by EPA in 1999. At the time of the 1999 proposed 
disapproval, the Part 2 Rules also included the state's major non-
attainment PTI program. The major non-attainment provisions have been 
removed from Part 2, and are now covered by the Part 19 rules which 
were approved on December 16, 2013.

II. Review of State Submittals

    Section 110(a)(2)(C) of the CAA requires that each SIP include a 
program to provide for the regulation of construction and modification 
of stationary sources as necessary to assure that the National Ambient 
Air Quality Standards (NAAQS) are achieved. Specific elements for an 
approvable construction permitting plan are found in the implementing 
regulations at 40 CFR 51 subpart I--Review of New Sources and 
Modifications. Requirements relevant to minor construction programs are 
40 CFR 51.160-51.163. EPA regulations have few specific criteria for 
state minor new source review (NSR) programs. Generally, state programs 
must set forth legally enforceable procedures that allow the state to 
determine if a planned construction activity would result in a 
violation of the state's SIP or a national standard and prevent any 
activity that would. In accordance with 40 CFR 51.162, the state plan 
must identify the responsible agency for making permitting decisions. 
40 CFR 51.160 requires that the plan identify the types and sizes of 
activities that are subject to the plan, provide that sources 
undertaking an activity submit adequate information regarding the 
location, design and emissions related information to enable the state 
to make a determination, and discuss the air quality data and 
dispersion or other air quality modeling used. 40 CFR 51.161 provides 
specific criteria for public availability of information and 
opportunity for public comment. Finally, 40 CFR 51.164 requires that 
the plan identify the administrative procedures that will be followed 
in making permitting decisions.
    The revisions to Part 2 submitted by MDEQ are largely provisions 
that strengthen the already approved minor NSR program adding greater 
detail with respect to applicability, required application material, 
and processing of applications; however, the revisions do include 
changes to waiver provisions and the addition of several categories of 
exemptions from the requirement to obtain a PTI. The revisions also 
include changes the public notice requirements, Michigan R 336.1205. 
EPA is not acting on Michigan R 336.1205 at this time, and it will be 
addressed in a subsequent rulemaking action.
    The expansion of exemptions would be viewed as a potential 
relaxation of the already approved plan; therefore, Michigan was 
required to provide information as required by section 110(l) of the 
CAA to demonstrate that the revision would not interfere with any 
applicable requirement concerning attainment and reasonable further 
progress, or any other applicable requirement of the CAA. The 2003 and 
2017 submittals provide analyses of the emissions associated with each 
new exemption and the impact they would have on air quality. EPA's 
review of the waiver and exemption provisions are discussed in greater 
detail below.
    Michigan R 336.1202 provides a waiver from the requirement to 
obtain a permit prior to commencing construction under limited 
circumstances. The Prevention of Significant Deterioration (PSD) 
provisions of the CAA prohibit commencement of construction without 
first obtaining the required permit authorizing construction; however, 
the requirement only applies to major sources, and no such restriction 
is specified under the minor NSR program requirements set forth in 40 
CFR 51.160. In addition, EPA has made determinations which further 
support that limited construction may begin before a permit is issued 
for minor sources. For example, EPA's October 10,

[[Page 38653]]

1978, memorandum from Edward E. Reich to Thomas W. Devine in Region 1 
discusses limited preconstruction activities allowed at a site with 
both PSD and non-PSD sources. This memo states that construction may 
begin on PSD-exempt projects before the permit is issued. Furthermore, 
EPA approved a rule for Idaho's permit program and Wisconsin's permit 
program which allowed construction to commence under limited 
circumstance prior to a permit being issued. (See 68 FR 2217 and 73 FR 
12893.) As stated previously, the minor NSR provisions at 40 CFR 51.160 
require state programs to determine if activities would violate an 
applicable SIP or national standard and to prevent construction of an 
activity that would violate an applicable SIP provision or national 
standard. Michigan R 336.1202(1) requires an application for a waiver 
be submitted to MDEQ and requires MDEQ to act on the request within 30 
days. Construction may not proceed unless the waiver is granted. The 
rule also indicates that the waiver does not guarantee approval of the 
required PTI and any construction activity would be at the owner/
operator's risk. Michigan R 336.1202(2) limits the waiver to minor 
construction activities and activities that are not considered 
construction or reconstruction under a National Emission Standard for 
Hazardous Air Pollutants of 40 CFR part 61 or part 63. EPA finds the 
Michigan waiver provisions are consistent with EPA regulations and 
policy, are similar to waiver provisions previously approved in Idaho 
and Wisconsin, and provide adequate assurance that major construction 
activities would be prevented and activities will not result in a 
violation of the SIP or a national standard.
    Generally, MDEQ requires a PTI for any activity that results in the 
emission of any amount of a regulated air pollutant. The state's minor 
NSR program does not exempt based on emission thresholds and instead 
lists specific exempt source categories of emissions. The exemption 
provisions considered in this action are Michigan R 336.1278, 
336.1278a, and 336.1280-336.1290. When determining adequacy of the 
state rules, EPA is concerned with the possibility that an exemption 
might allow an activity that should be subject to major source 
permitting requirements escape appropriate review and permitting, that 
sources are required to maintain information adequate for the state to 
ensure that exemptions have been applied appropriately, and that the 
exemptions would not interfere with any applicable requirement 
concerning attainment and reasonable further progress, or any other 
applicable requirement of the CAA.
    Michigan R 336.1278 and 336.1278a provide limitation on the use of 
the specific exemptions provided in R 336.1280-336.1290, and require 
sources using the exemptions to maintain certain records to demonstrate 
that the exemptions have been applied appropriately. Michigan R 
336.1278 excludes any activity that would be subject to PSD or major 
non-attainment permitting from use of the exemptions. The rule also 
defines activity to include all ``concurrent and related installation, 
construction, reconstruction, relocation, or modification of any 
process or process equipment'' which will ensure that projects are 
aggregated properly before applying an exemption. Michigan R 336.1278a 
requires owner/operators applying an exemption to maintain records and 
a written demonstration supporting application of the exemption. 
Additionally, specific exemptions may include additional monitoring and 
recordkeeping as required to ensure that the equipment is operating as 
required under the exemption.
    Section 110(l) of the CAA states that a SIP revision cannot be 
approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
towards attainment of a NAAQS or any other applicable requirement of 
the CAA. The exemptions only apply to the need to obtain a PTI prior to 
construction. Exempt units would still be required to comply with any 
non-PTI related SIP requirements or standards under the CAA. The 2003 
and 2017 submittals provide an estimation of emissions that could 
result from each exemption. Many of these exemptions would result in 
very low levels of emissions, generally less than 3 tons per year of a 
regulated pollutant. Several would likely result in no emission of a 
regulated pollutant. Where an exemption could result in an increase of 
a regulated pollutant in amounts greater than 10 tons per year, MDEQ 
provided modeling, or in the case of ozone a qualitative analysis to 
demonstrate that the emissions that could result from the exempt 
categories would have no significant impact on compliance with the 
NAAQS. After reviewing the information provided by MDEQ, EPA agrees 
that the exemptions are unlikely to result in a violation of the NAAQS.

III. What action is EPA taking?

    EPA is proposing to approve all changes submitted by MDEQ except 
for changes to Michigan R 336.1205 which includes provisions for public 
notice. EPA will not be taking any action with respect to the changes 
in public notice and will be addressing Michigan R 336.1205 in a 
separate action. The already approved public notice procedures will 
remain in the SIP until EPA takes action on Michigan R 336.1205.

IV. Incorporation by Reference

    In this rule, EPA proposes to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA proposes to incorporate by 
reference Michigan's updated permitting rules including 336.1209, 
effective 07/26/1995; 336.1201a, 336.1203, 336.1204, 336.1206, 
336.1212, 336.1216, effective 07/01/2003; 336.1201, 336.1202, 336.1207, 
336.1219, 336.1240, 336.1241, 336.1278, 336.1299, effective 06/20/2008; 
and 336.1278a, 336.1280, 336.1281, 336.1282, 336.1283, 336.1284, 
336.1285, 336.1286, 336.1287, 336.1288, 336.1289, 336.1290, effective 
12/20/2016. EPA has made, and will continue to make, these documents 
generally available through www.regulations.gov, and/or at the EPA 
Region 5 Office (please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section of this preamble for more 
information).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Clean Air Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a

[[Page 38654]]

substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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: July 27, 2017.
Robert A. Kaplan,
Acting Regional Administrator, Region 5.
[FR Doc. 2017-17230 Filed 8-14-17; 8:45 am]
 BILLING CODE 6560-50-P