[Federal Register Volume 84, Number 105 (Friday, May 31, 2019)]
[Rules and Regulations]
[Pages 25180-25183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11407]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-1092; FRL-9994-65-Region 5]


Air Plan Approval; Michigan; Permit To Install Public Hearing 
Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving certain 
changes to the Michigan State Implementation Plan (SIP). This action 
relates to changes to the Permit to Install requirements for public 
participation of permitting actions. Additionally, the action contains 
changes to the rule which address permit emission limits that are 
enforceable as a practical matter.

DATES: This final rule is effective on July 1, 2019.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2007-1092. All documents in the docket are listed on 
the www.regulations.gov website. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
through www.regulations.gov or 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 Federal holidays. We recommend 
that you telephone Constantine Blathras, Environmental Engineer, at 
(312) 886-0671 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Constantine Blathras, Environmental 
Engineer, Air Permits Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-0671, [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. State Submittal
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 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 and minor sources that the 
state deems necessary to protect air quality. The State of Michigan's 
minor source permit to install rules are contained in Part 2 (Air Use 
Approval) of the Michigan Administrative Code. Changes to the Part 2 
rules were submitted on November 12, 1993; May 16, 1996; April 3, 1998; 
September 2, 2003; March 24, 2009; and February 28, 2017.
    Michigan originally submitted its Michigan R 336.1205 (rule 205) as 
a revision to its Part 2 SIP on May 16, 1996. The most recent version 
of rule 205 was submitted to EPA on March 24, 2009 and has a State 
effective date of June 20, 2008. EPA published a proposed approval of 
all Part 2 changes, except rule 205, on August 15, 2017 (82 FR 38651). 
EPA took no action to approve rule 205 at that time. Most recently, EPA 
approved changes to the Part 2 rules (except rule 205) in a final 
approval dated August 31, 2018 (83 FR 44485). In this action, EPA is 
approving revisions to the SIP for Michigan rule 205 and 324.5511(3) of 
the Michigan Natural Resources and Environmental Protection Act. Rule 
205 is titled ``Permit to install; approval.'' and is a section of the 
Part 2 air use approval rules of the Michigan Administrative Code that 
specifies the public participation requirements for issuance of air 
pollutant construction permits. Michigan Act 451, Part 55, section 
324.5511(3) defines the permitting actions requiring public comment and 
public hearing opportunities.

II. State Submittal

(1) R 336.1205 (Rule 205) of Michigan's Part 2 Air Permit Rules

    Rule 205 requires permits to install which include limitations that 
restrict the potential to emit from a stationary source, process, or 
process equipment to a quantity below that which would otherwise 
constitute a major source or major modification under any part of the 
Part 2 air permit rules. Permits to install must contain adequate 
emission limits that are enforceable as a practical matter; with a 
consideration to the time-period, production, emission, usage and/or 
operational limits that restrict the source's potential to emit in 
order to demonstrate compliance.
    Michigan rule 205 describes the content and public participation 
process for the Michigan Department of Environmental Quality (MDEQ), as 
the permitting authority, to act on certain permits which need to be 
``federally enforceable'' or enforceable as a practical matter. 
Additionally, the rule also prescribes these requirements for

[[Page 25181]]

any permit issued under Section 112 of the Clean Air Act. This rule 
incorporates guidance published by EPA in the Federal Register on June 
28, 1989 (54 FR 27274) on limiting a source's potential to emit. The 
rule applies only to sources and modifications defined as ``major'' 
under Federal regulations and to sources which would be subject to the 
``major'' requirements except for conditions contained in the permit 
which limit the potential to emit to less than the applicable emission 
thresholds. Sources which accept conditions which limit the potential 
to emit to something less than the true design capacity of the 
equipment being installed are referred to as ``synthetic minor'' 
sources.
    Rule 205 specifies that the draft permit is subject to the public 
participation process specified in section 324.5511(3) of Michigan Act 
451. The requirements of section 324.5511(3) are reviewed and further 
described below. Lastly, Michigan, at its discretion, may approve a 
permit to install that includes limitations restricting the potential 
to emit of the stationary source without meeting the requirements of 
section 324.5511(3) if the emission limitations restrict the potential 
to emit of the source to less than 90% of the quantity referenced in 
the applicable requirement.

(2) 324.5511(3) of Michigan Act 451

    In its May 1996 submittal, MDEQ requested that all of Part 55 of 
Act 451 of the 1994 Michigan act be approved as a revision to the 
Michigan SIP in addition to rule 205 and other sections of Michigan's 
Part 2 air permit program rules. EPA did not act on the request to 
include Part 55 of the Michigan act into the Michigan SIP, nor did we 
approve rule 205. Upon EPA's review of the submittal, we determined 
that the other sections of the Part 55 act, such as 324.5506, pertain 
to the Michigan operating permits program. EPA approved the mechanism 
for Michigan's title V operating permits program but did not approve 
its operating permits rules into the SIP because that program has a 
different approval mechanism under the Clean Air Act. Additionally, 
section 324.5511(3) references consent orders and the public notice 
opportunity for those actions. Actions related to consent orders are 
not being approved into the State's SIP.
    On December 19, 2018, Michigan submitted a clarification letter to 
EPA specifying that it only intended to submit a selection of section 
324.5511(3) of the Natural Resources and Environmental Protection Act 
451 of 1994 as part of the revision with Michigan rule 205. Michigan 
rule 205 references the above-mentioned rule 324.5511(3) at R 
336.1205(1)(b) citing, ``A draft permit has been subjected to the 
public participation process specified in section 324.5511(3) of the 
act.'' EPA is approving the selection of section 5511(3) into the 
Michigan SIP as submitted by the State in their December 19, 2018 
letter. The selected language as submitted removes references to 
Michigan's operating permits program and consent order requirements 
which are not being approved into the SIP, nor are they required to be 
approved into the SIP. Whereas section 5511(3) contains provisions 
related to New Source Review (NSR), the operating permits program, and 
consent orders, this action is not intended as a revision to Michigan's 
SIP language pertaining to its title V operating permits program or to 
actions related to consent orders, but only for NSR construction 
permitting purposes.
    EPA requires that major sources and major modifications to major 
sources subject to the Prevention of Significant Deterioration of air 
quality and those sources impacting nonattainment areas be subject to 
public participation requirements, including a public comment period 
and opportunity for a public hearing. EPA already approved Michigan's 
major source air permitting program and its associated public 
participation requirements, found in Michigan rule R 336.2817, on March 
25, 2010 (75 FR14352) in accordance with the requirements found in 40 
CFR 51.166. Sources subject to Part 19, New Source Review for major 
sources impacting nonattainment areas, are required to obtain a permit 
subject to the permitting provisions of Michigan rules Part 19, which 
meet the requirements found in 40 CFR 51.165(a) and (b), and rule 201 
of the Part 2 air permit rules.
    Approving Michigan's rule 205 and section 324.5511(3) of the 
Michigan act as a revision to the Michigan SIP will strengthen the 
existing State public notice requirements for public participation for 
air permits. As stated in Michigan's letter, ``These additions will 
strengthen the Michigan SIP by formalizing the public participation 
process for all permits issued pursuant to Part 55 and R 336.1201, as 
well as major source prevention of significant deterioration and 
nonattainment NSR permits to install.''
    Section 324.5511(3), paragraphs (a), (b), and (c) specify the 
requirements for permit notification and sets the public comment period 
to at least 30 days with an opportunity for a public hearing with at 
least a 30-day notice. The current SIP required NSR public 
participation process provides for only a 21-day public notice and 
comment period. The Federal permit public participation requirements 
are only applicable for major source and major modifications in both 
attainment and nonattainment areas and not the minor source permitting 
program. These approved provisions of rule 205 and section 324.5511(3) 
further strengthen the already approved minor air pollutant 
construction permitting program by adding a public notice requirement 
for those sources above 90% of the quantity referenced in the 
applicable requirements which would constitute a major source or major 
modification and by prescribing the permit emission limitations which 
will make the synthetic minor air permit practically enforceable. 
Michigan will continue to exercise its discretion by making draft 
permits available for public comment which are below the 90% quantity 
in the applicable requirements for a major source or major 
modification.

(3) Proposed Approval and Comments Received

    On March 27, 2019, EPA published an action proposing approval of 
Michigan rule R336.1205 and 324.5511(3) of Michigan Act 451 (84 FR 
11464). The comment period for the proposed approval ended April 26, 
2019. EPA received two comments via the regulations.gov website during 
the comment period. Commenters submitted comments that generally were 
in support of this proposed action. One commenter noted that the 
requirement for public hearing being put into place in Michigan needs 
to be country-wide and not just limited to communities that demand it 
after damage has already happened. The commenter also raised concerns 
with the oil and gas companies not requiring public notice for drilling 
operations. The Federal major source construction permitting rules 
require that all major sources of air pollution be subject to a public 
participation process including a 30-day public comment period and 
opportunity for a public hearing. States are required to adopt 
requirements that are at least as stringent as the Federal applicable 
air permitting requirements. The State of Michigan issues air permits 
pursuant to its regulations including all applicable Federal 
requirements, with their associated public notice and comment period 
requirements.

III. What action is EPA taking?

    EPA is approving Michigan rule R 336.1205, ``Permit to install; 
approval''

[[Page 25182]]

and portions of section 324.5511(3) of Michigan Act 451 of 1994 into 
the Michigan SIP.

IV. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the Michigan 
Regulations described in the amendments to 40 CFR part 52 set forth 
below. EPA has made, and will continue to make, these documents 
generally available through www.regulations.gov, and at the EPA Region 
5 Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information). 
Therefore, these materials have been approved by EPA for inclusion in 
the State implementation plan, have been incorporated by reference by 
EPA into that plan, are fully federally enforceable under sections 110 
and 113 of the CAA as of the effective date of the final rulemaking of 
EPA's approval, and will be incorporated by reference in the next 
update to the SIP compilation.\1\
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    \1\ 62 FR 27968 (May 22, 1997).
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V. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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 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).
    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. EPA will submit a report containing this action 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).
    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 July 30, 2019. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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 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: May 21, 2019.
Cheryl L. Newton,
Acting Regional Administrator, Region 5.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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


0
2. Section 52.1170 is amended:
0
a. In the table in paragraph (c) by adding an entry for ``R 336.1205'' 
after the entry for ``R 336.1204'' under the heading ``Part 2. Air Use 
Approval''; and
0
b. In the table in paragraph (e) by adding an entry for ``List of 
permit applications; list of consent order public notices; notice, 
opportunity for public comment and public hearing required for certain 
permit actions.'' after the entry for ``Regional Haze Progress 
Report''.
    The additions read as follows:


Sec.  52.1170  Identification of plan.

* * * * *
    (c) * * *

[[Page 25183]]



                                        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 2. Air Use Approval
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                                                  * * * * * * *
R 336.1205..................  Permit to install;          6/20/2008  5/31/2019, [Insert
                               approval.                              Federal Register
                                                                      citation].
 
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* * * * *
    (e) * * *

                       EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
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                                     Applicable
   Name of nonregulatory SIP        geographic or         State       EPA approval date          Comments
           provision             nonattainment area  submittal date
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                                                  * * * * * * *
List of permit applications;     Statewide.........      12/19/2018  5/31/2019, [Insert  Includes: Letter from
 list of consent order public                                         Federal Register    Michigan Department of
 notices; notice, opportunity                                         citation].          Environmental Quality
 for public comment and public                                                            Director C. Heidi
 hearing required for certain                                                             Grether to Regional
 permit actions.                                                                          Administrator Cathy
                                                                                          Stepp, dated 12/19/
                                                                                          2018, along with an
                                                                                          enclosed selection of
                                                                                          Section 5511 (3) of
                                                                                          Part 55, Air Pollution
                                                                                          Control, of the
                                                                                          Natural Resources and
                                                                                          Environmental
                                                                                          Protection Act, 1994
                                                                                          PA 451, as amended.
 
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[FR Doc. 2019-11407 Filed 5-30-19; 8:45 am]
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