[Federal Register Volume 89, Number 81 (Thursday, April 25, 2024)]
[Proposed Rules]
[Pages 31677-31680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08798]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2022-0295; FRL-10162-06-R5]
Air Plan Approval; Michigan; Revisions to Part 1 and 2 Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to Michigan Air Pollution Control rules Part 2 Air
Use Approval for inclusion in the Michigan State Implementation Plan
(SIP).
DATES: Comments must be received on or before May 28, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2022-0295 at https://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 https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Constantine Blathras, Air Permit
Section, Air Programs Branch (AR-18J), Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312)
886-0671, [email protected]. The EPA Region 5 office is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal
holidays and facility closures due to COVID-19.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
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 (NAAQs) 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, R. 336.1201 to R. 336.1299 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; February 28, 2017; and March 8, 2022. EPA approved
changes to the Part 2 rules most recently in a final approval dated
April 27, 2023 (88 FR 25498).
On September 27, 2022 (87 FR 58471), EPA proposed approval, via a
direct final rule, of the Michigan SIP revisions submitted on March 8,
2022. During the public comment period, EPA received an adverse comment
on the Michigan rule revisions to R 336.1285 ``Permit to install
exemptions; miscellaneous'' and R 336.1291, ``Permit to install
exemptions; emission units with `de minimis' emissions''. On November
14, 2022 (87 FR 68634), EPA withdrew the direct final rule. EPA
approved the revisions to the Michigan rule revision which did not
receive adverse comment (88 FR 25498, April 27, 2023). As explained in
that action, we did not consider the comments received to be germane or
relevant to EPA's proposal to approve portions of Michigan's Part 1 and
Part 2 rules beyond the permit exemption rules, and therefore not
adverse to approving them into the Michigan SIP.
EPA is now proposing to approve Michigan's rules R 336.1285(2)(oo)
and R 336.1291 into the Michigan SIP. On November 14, 2023, Michigan
submitted a supplement to the original March 8, 2022, submittal by
supplying additional information regarding the approval of Michigan
rules R 336.1285(2)(oo) and R 336.1291 in response to comments we
received on the rulemaking. These rules exempt certain processes and/or
equipment from Michigan's minor New Source Review permitting program.
The November 14, 2023, Michigan supplemental submittal as well as the
original March 8, 2022, submittal are available with the docket for
this rulemaking action.
Michigan Rule R 336.1285(2)(oo)
Michigan rule R 336.1285(2)(oo) exempts vapor intrusion mitigation
systems. Specifically, this exemption applies to equipment or systems,
or both, used exclusively to mitigate vapor intrusion of an indoor
space that is not on the property where the release of the hazardous
substance occurred, and which has an exhaust that meets all of the
following requirements:
i. Unobstructed vertically upward.
ii. At least 12 inches above the nearest eave of the roof or at
least 12 inches above the surface of the roof at the point of
penetration.
iii. More than 10 feet above the ground.
iv. More than 2 feet above or more than 10 feet away from windows,
doors, other buildings, and other air intakes.
[[Page 31678]]
Michigan Rule R 336.1291
Michigan rule R 336.1291 exempts emission units with ``de minimis''
emissions. Specifically, rule R 336.1291 requires that records be
maintained providing a description of the emission unit(s), and
documentation and/or calculations identifying the quality, nature, and
quantity of the air contaminant emissions are maintained in sufficient
detail to demonstrate that the potential emissions are less than those
listed in the table of air contaminants applicable to this exemption.
Michigan's rule R 336.1291 exemption is based on the units' potential
to emit. Potential to emit is defined in Michigan's rule 336.2801(hh)
as:
``(T)he maximum capacity of a stationary source to emit a pollutant
under its physical and operational design. A physical or operational
limitation on the capacity of the source to emit a pollutant, including
air pollution control equipment and restrictions on hours of operation
or on the type or amount of material combusted, stored, or processed,
shall be treated as part of its design if the limitation or the effect
it would have on emissions is legally enforceable and enforceable as a
practical matter by the state, local air pollution control agency, or
United States Environmental Protection Agency. Secondary emissions do
not count in determining the potential to emit of a stationary
source.''
In Michigan's November 14, 2023, supplemental submittal, Michigan
provides an analysis of the rule revisions and addresses comments
raised in the October 27, 2022, letter. Michigan's analysis included
responses to the commenter's points including: 1) the section 110(l)
analysis must consider the program as a whole; 2) Michigan cannot rely
on the Tribal rule thresholds; 3) Michigan did not demonstrate that
annual potential to emit limitations sufficiently protect short-term
NAAQS; 4) Michigan's justification for not having more stringent
thresholds in non-attainment areas does not hold up; and 5) Michigan's
representation of its actual emission exemptions are insufficient.
To demonstrate that the two exemptions would not interfere with any
applicable requirement concerning the attainment and reasonable further
progress, or any other applicable requirement, Michigan reviewed its
Michigan Air Emissions Reporting System (MAERS). The Michigan rule 291
exemption has been in effect in the state since 2016. The MAERS data
contains information on a specific subset of emission units that are
exempt. As described in the table of emission unit and pollutant levels
for various exemptions in Michigan's supplemental submittal, of those
facilities that are reporting, Michigan rule 291 emission units are
responsible for less than 0.9 percent of volatile organic compound
emissions from all units reported to MAERS, and less than 3.6 percent
of volatile organic compound emissions from exempt units reported in
MAERS. Requiring Michigan to permit these exempt units would not
contribute to Michigan's plan for attainment or reasonable further
progress, but would rather divert Michigan air permitting program
resources from addressing other more significant air pollutant
emitters. The air permit exemptions have been in effect for several
years and have had no measurable impact on attainment or reasonable
further progress.
Section 110(l) Demonstration
As part of the SIP revision request supplemental submittal,
Michigan submitted a 110(l) demonstration. Section 110(l) of the CAA
governs the submittal of SIP revisions. Each revision to an
implementation plan submitted by a State shall be adopted by the State
after reasonable notice and public hearing. The Administrator shall not
approve a revision of a plan if the revision would interfere with any
applicable requirement concerning the attainment and reasonable further
progress (as defined by 40 CFR 7501), or any other applicable
requirement of this chapter.
As part of its 110(l) demonstration, Michigan provided an analysis
of the emission exemptions impacts, using the Modeled Emission Rates
for Precursors as a Tier 1 Demonstration Tool to demonstrate ozone and
fine particulate (PM2.5) impacts from single sources on
secondary pollutants for the Prevention of Significant Deterioration
(PSD) permitting program, from the sources using Michigan rule 291
exemption air emissions.
Michigan evaluated the air quality impact that Michigan Rule 291
would have on ozone and secondary PM2.5 formation. Michigan
used the method set forth in EPA's April 30, 2019, Guidance on the
Development of Modeled Emission Rates for Precursors (MERPs) as a Tier
1 Demonstration Tool for Ozone and PM2.5 under the PSD
Permitting Program (MERPs guidance) to estimate source specific
contributions to ozone and secondary PM2.5 formation.
As part of its analysis, Michigan utilized hypothetical source
modeling that EPA used to illustrate the framework established in the
MERPs guidance. Hypothetical sources, modeled emission rates, and
modeled air quality impacts were obtained using EPA's MERPs View Qlik
tool. For its analysis, Michigan considered hypothetical sources
located in Michigan. A hypothetical source was selected for this
analysis if the hypothetical source has the lowest MERP for a given
precursor pollutant. For a given precursor pollutant, a lower MERP
suggests that the precursor pollutant more readily forms the secondary
pollutant. As a result, choosing a lower MERP more conservatively
estimates the air quality impacts for the secondary pollutant since the
source has a higher modeled air quality impact for a given modeled
emission rate. For all precursor pollutants except VOC as a precursor
to ozone, Michigan utilized modeling results from the Montcalm County,
Michigan hypothetical source. For VOC as a precursor to ozone, Michigan
utilized the Marquette County, Michigan, hypothetical source. For all
precursor pollutants, Michigan chose the hypothetical source in
Michigan with the lowest MERP for a given precursor pollutant. Using
the modeled results for the Marquette and Montcalm County, Michigan,
hypothetical sources, Michigan evaluated the air quality impacts
associated with the emission thresholds for Michigan Rule 291 using a
method that was consistent with the framework recommended in the MERPs
guidance.
For the single emission unit impact analysis, Michigan evaluated a
proposed project that would emit 10 tons per year of sulfur dioxide
(SO2), 10 tons per year of nitrogen oxides (NOX),
and 5 tons per year of volatile organic compounds (VOC). This is the
maximum emission rate that would be allowed for a single emission unit
under Michigan Rule 291. Based on its single emission unit impact
analysis, Michigan determined that ozone impacts would be 0.047 parts
per billion (ppb), annual PM2.5 impacts would be 0.000413
micrograms per cubic meter ([mu]g/m\3\), and 24-hour PM2.5
impacts would be 0.0155 [mu]g/m\3\.
For the multiple emission unit impact analysis, Michigan evaluated
a proposed project that would emit 40 tons of SO2, 40 tons
per year of NOX, and 40 tons per year of VOC. This is the
maximum emission rate that would be allowed for multiple emission units
that are part of the same project without being considered significant
as defined under Michigan Rule 119(e). Based on its multiple emission
unit impact analysis, Michigan determined that 8-hour ozone
[[Page 31679]]
impacts would be 0.20 ppb, annual PM2.5 impacts would be
0.00165 [mu]g/m\3\, and 24-hour PM2.5 impacts would be 0.062
[mu]g/m\3\.
EPA believes that Michigan's goal of reducing permitting workload
on Michigan permitting staff by utilizing these permit exemptions would
not interfere with Michigan's air program since any permitting of these
exempt units would not impose any additional air pollution controls due
to the de minimus level of the exempted unit's air emissions. The
amount of emissions from these exempt units do not interfere with
continued Michigan's attainment nor reasonable further progress, or any
other applicable requirement of the NAAQs.
The 110(l) demonstration in the SIP revision request adequately
addresses this requirement and will have no effect on Michigan's NAAQS
attainment status, or any backsliding on achieved improvements. The
Michigan air permit exemptions do not apply to any activity that is
subject to PSD of air quality regulations or new source review for
major sources in non-attainment areas regulations. As Michigan has
stated in its supplemental submittal, the exemptions have not had any
measurable or discernable impact on attainment. The exemptions
specified do not apply to the construction, modification, or
reconstruction of a new major source of hazardous air pollutants as
defined in the Federal requirements of 40 CFR parts 61 and 63, or any
other applicable requirement or existing program limitation. By
including such language in Michigan's minor source regulations,
Michigan has attempted to address any sources that may have significant
emissions and the potential to negatively impact ambient air quality.
This approach ensures that sources that might otherwise be exempt from
permitting are subject to minor NSR permitting. States must develop
minor NSR programs to attain and maintain the NAAQS and the Federal
requirements for state minor NSR programs are outlined in 40 CFR 51.160
through 51.164. These Federal requirements for minor NSR programs are
considerably less prescriptive than those for major sources and, as a
result, there is a larger variation of requirements across the state
minor NSR programs. The air permit exemptions allow Michigan to
allocate its limited resources to address sources in air permitting by
avoiding the permitting of small sources with no perceivable impact on
attainment. Michigan's November 14, 2023, supplemental submittal
demonstrates that its minor NSR program will adequately protect the
NAAQs with the additional exemptions to the already approved air permit
rule exemptions in its SIP.
II. What Action is EPA Taking?
EPA is proposing approval of revisions to Michigan's Part 2
regulations, specifically Michigan Air Pollution Control Rules R
336.1285(2)(oo) and R 336.1291.
III. Incorporation by Reference
In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference Michigan rules R 336.1285(2)(oo) and R 336.1291, effective 1/
2/2019 and 12/20/2016 respectively, discussed in section I. of this
preamble. 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).
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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 CAA. 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 14094 (88 FR 21879, April 11, 2023);
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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
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 CAA.
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).
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
EGLE did not evaluate environmental justice considerations as part
of its SIP submittal; the CAA and applicable implementing regulations
neither prohibit nor require such an evaluation. EPA did not perform an
EJ analysis and did not consider EJ in this action. Consideration of EJ
is not required as part of this action, and there is no information in
the record inconsistent with the stated goal of E.O. 12898 of achieving
environmental justice for people of color, low-income populations, and
Indigenous peoples.
[[Page 31680]]
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Dated: April 18, 2024.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2024-08798 Filed 4-24-24; 8:45 am]
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