06-4985. Approval and Promulgation of Implementation Plans; Michigan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is partially approving and partially disapproving revisions to the Michigan State Implementation Plan (SIP). These revisions were submitted to the EPA by the Michigan Department of Environmental Quality (MDEQ) on April 3, 2003, May 28, 2003, September 17, 2004, October 25, 2004 and June 8, 2005. The following sections of Michigan's rules are affected: Part 3: Emission Limitations and Prohibitions—Particulate Matter; Part 4: Emission Limitations and Prohibitions—Sulfur-bearing Compounds; Part 6: Emission Limitations and Prohibitions—Existing Sources of Volatile Organic Compound Emissions; Part 7: Emission Limitations and Prohibitions—New Sources of Volatile Organic Compound Emissions; Part 9: Emission Limitations and Prohibitions—Miscellaneous; Part 10: Intermittent Testing and Sampling; and Part 11: Continuous Emission Monitoring. The revisions are primarily administrative changes and minor corrections. EPA's proposed partial approval and partial disapproval was published on December 29, 2005.

DATES:

This final rule is effective on July 3, 2006.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2004-MI-0001. All documents in the docket are listed on the http://www.regulations.gov Web site. 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 electronically through http://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 Federal holidays. We recommend that you telephone Kathleen D'Agostino, Environmental Engineer, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Kathleen D'Agostino, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone], [e-mail].

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 Is the Background for This Rule?

II. What Comments Did We Receive and What Are Our Responses?

III. What Action Is EPA Taking?

IV. Statutory and Executive Order Reviews.

I. What Is the Background for This Rule?

On April 3, 2003, May 28, 2003, September 17, 2004, October 25, 2004, and June 8, 2005 the MDEQ submitted revisions to the Michigan SIP. These submissions revise the following sections of Michigan's Air Pollution Control Rules: R 336.1301, R 336.1303, R 336.1330, R 336.1331 except item C8 of Table 31, R 336.1358, R 336.1361, R 336.1362, R 336.1363, R 336.1371, R 336.1372, R 336.1374, R 336.1401, R 336.1403, R 336.1601, R 336.1602, R 336.1604 to R 336.1608, R 336.1615 to R 336.1619, R 336.1622, R 336.1623, R 336.1625, R 336.1627 to R 336.1631, R 336.1702, R 336.1705, R 336.1906, R 336.1911, R 336.1930, R 336.2001 to R 336.2005, R 336.2007, R 336.2011 to R 336.2014, R 336.2021, R 336.2040 except subrules (9) and (10), R 336.2041, R 336.2101, R 336.2150, R 336.2155, R 336.2159, R 336.2170, R 336.2175, R 336.2189, and R 336.2190. The revisions are primarily administrative changes and minor corrections.

On December 29, 2005 (70 FR 77113), we proposed to partially approve and partially disapprove the State's submittal. We proposed to disapprove Rules R 336.1602 and R 336.2041 and to approve the remainder of the rules submitted by the State. The rationale for EPA's proposed action is explained in the notice of proposed rulemaking and will not be restated here.

II. What Comments Did We Receive and What Are Our Responses?

This section summarizes the comments submitted during the public comment period for the notice of proposed rulemaking and provides EPA's response to those comments. The comment period closed January 30, 2006. Adverse comments were received from the MDEQ.

Comment: The proposed Rule 602 revisions are appropriate and necessary to conform to the current version of Rule 610. Further, EPA's concern about eliminating the approved references should not be an issue because the version of Rules 602 and 610 that are approved in the SIP contain identical language as the current MDEQ Rules 602 and 610 in the specific subrules in question. The revisions being made to Rule 602 are simply changing the Rule 610 references to align with numbering changes to the relevant subrules in Rule 610. The fact that there are some other portions of MDEQ's current Rule 610 that are not approved by EPA and in the SIP should not impact the specific revisions that EPA is proposing to disapprove.

Response: Rule R 336.1602 (Rule 602) contains general provisions for sources of volatile organic compound (VOC) emissions. Rule R 336.1610 (Rule 610) regulates VOC emissions from coating lines. These rules were submitted by Michigan and approved by EPA pursuant to the Reasonably Available Control Technology (RACT) requirements of sections 182(a)(2)(A) and (b)(2) of the Clean Air Act (CAA). See 59 FR 46182. Further, MDEQ has made revisions to the state version of R 336.1610 which EPA has not approved into the SIP, and which are not currently before EPA for review.

In reviewing the revisions to Rule 602 that MDEQ has submitted for approval into the SIP, EPA must evaluate their impact on the version of Rule 610 currently approved into the SIP. With respect to the SIP, the non-SIP approved, non-federally enforceable state version of Rule 610 is irrelevant. Further, the versions of Rules 602 and 610 currently approved into the SIP do not contain identical language to the versions currently effective at the state level.

The SIP approved version of Rule 602 requires any approval of equivalent emission rates, alternate emission rates, or compliance methods that are authorized pursuant to R 336.1610(7)(a) or R 336.1610(14), table 63, to be submitted to EPA as a revision to the SIP. Correspondingly, R 336.1610(7)(a) allows the state to “authorize compliance to be based upon a longer averaging period, which shall not be more than 1 calendar month.” R 336.1610(14) table 63 (Column B—transfer efficiency) allows credit for greater transfer efficiencies, with state approval of the transfer efficiency test method. It is the references to Rule 610 in Rule 602 that require these deviations to be submitted to EPA as a revision to the SIP.

If the changes to Rule 602 were approved by EPA as a revision to Michigan's SIP, the state would then be required to submit any approval of equivalent emission rates, alternate emission rates, or compliance methods that are authorized pursuant to sections R 336.1610(5)(a) or R 336.1610(11), table 63, to EPA as revisions to the SIP. However, in the version of Rule 610 contained in the SIP, R 336.1610(5)(a) requires sources to submit a written program for compliance with Rule 610, and there is no table 63 in R 336.1610(11). Neither section contains provisions authorizing approval of equivalent emission rates, alternate emission rates, or compliance methods. Further, the deviations allowed under SIP-approved R 336.1610(7)(a) and R 336.1610(14), table 63, would no longer be required to be submitted to EPA as revisions to the SIP.

As articulated in EPA's December 29, 2005 proposal, approval of the revision to R 336.1602 would relax RACT by allowing the State to alter the SIP without EPA review and approval (director's discretion). This is inconsistent with the requirements of the CAA and with RACT requirements as set forth in EPA policy guidance documents, including “Issues Relating to VOC Regulation Cutpoints, Deficiencies and Deviations, Clarification to Appendix D of November 24, 1987 Federal Register Notice,” dated May 25, 1988. For this reason, EPA is disapproving the revisions to R 336.1602.

Comment: The MDEQ agrees that language was added to subrule (1) of R 336.2041 (Rule 1041) that could allow recordkeeping requirements to be accepted by the MDEQ that are not SIP-approved. This was added to address any existing orders, agreements, contracts or rules that contain recordkeeping provisions but are not made part of the SIP. The intent was to prevent the unacceptable burden to these sources of having to revise previously approved recordkeeping provisions to fit the new Rule 1041 provisions. All recordkeeping in orders, agreements, contracts, or rules that are initiated after Rule 1041 became effective would be expected to follow the requirements in Rule 1041. EPA should accept the language in subrule (1) and approve it into the SIP.

Response: It should be noted that Rule 1041 was submitted by Michigan and approved by EPA pursuant to the RACT requirements of sections 182(a)(2)(A) and (b)(2) of the CAA. See 59 FR 46182.

In revising Rule 1041, it may have been the intention of MDEQ to allow recordkeeping flexibility only for those sources subject to orders, agreements, contracts or rules containing recordkeeping provisions which had been approved prior to adoption of Rule 1041 in 1993, but not regulated under the SIP. However, these limitations are not set forth in the rule. As written, the revised rule would allow the State to alter recordkeeping requirements for sources subject to the SIP and therefore alter the SIP without EPA review and approval.

This is inconsistent with the requirements of the CAA and with RACT requirements as set forth in EPA policy guidance documents, including “Issues Relating to VOC Regulation Cutpoints, Deficiencies and Deviations, Clarification to Appendix D of November 24, 1987 Federal Register Notice” dated May 25, 1988. For this reason, Rule 1041, as revised, is not approvable.

Comment: MDEQ recognizes that there may be provisions in Rule 1041 that impact portions of Rule 610 that are not approved into the SIP, but requests that EPA specifically identify these provisions. MDEQ also requests that EPA approve any portions of Rule 1041 that reference parts of Rule 610 that have basically remained the same in the earlier SIP-approved version of Rule 610 and the revised version.

Response: In reviewing the revisions to Rule 1041, EPA must evaluate their impact on the version of Rule 610 currently approved into the SIP. With respect to the SIP, the non-SIP approved, non-federally enforceable state version of Rule 610 is irrelevant. The problem noted in EPA's December 29, 2005 proposal is that Rule 1041 was revised to state that sources:

subject to emission limits in R 336.1610(11), table 62 shall keep records as required in the publication entitled “Protocol for Determining the Daily Volatile Organic Compound Emission Rate of Automobile and Light-duty Truck Topcoat Operations,” EPA-450/3-88-018, December, 1988, which is referenced in R 336.1610(6)(b).

In the SIP approved version of Rule 610, there is no table 62 in subpart 11, and the publication noted is not referenced in subsection (6)(b). The revisions are confusing and inconsistent with the SIP.

Comment: The MDEQ requested that EPA specifically identify rewording in Rule 1041 that is confusing.

Response: The wording of subsections (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), and (12) is confusing. Each subsection begins with similar language. For example, subsection (2) states:

If a coating line does not have an add-on emissions control device for which emission limits are expressed in pounds of volatile organic compounds per gallon of coating, minus water, as applied, and if only 1 coating is used on the coating line during the averaging time, then a person shall keep records. * * *

.

It is not clear from the wording of the rule if the emission limits referred to are coating line emission limits or control device emission limits. If the intention is that the emission limits, and the units in which they are expressed, refer to the coating line, clearer wording is advisable. For example, the requirement could be expressed as follows:

If a coating line for which emission limits are expressed in pounds of volatile organic compounds per gallon of coating, minus water, as applied, does not have an add-on emissions control device, and if only 1 coating is used on the coating line during the averaging time, then a person shall keep records. * * *

.

III. What Action Is EPA Taking?

To determine the approvability of a rule, EPA must evaluate the rule for consistency with the requirements of the CAA, EPA regulations and the EPA's interpretation of these requirements as expressed in EPA policy guidance documents. While we understand the concerns raised by MDEQ, Rules R 336.1602 and R 336.2041 remain inconsistent with the CAA and the applicable policies by which EPA must evaluate submittals, including, “Issues Relating to VOC Regulation Cutpoints, Deficiencies and Deviations, Clarification to Appendix D of November 24, 1987 Federal Register Notice,” dated May 25, 1988. Therefore, EPA is finalizing its disapproval of rules R 336.1602 and R 336.2041. We are also finalizing our approval of the remainder of the rules submitted by the State.

IV. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.

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

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy 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).

Regulatory Flexibility Act

This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this 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 approves 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 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 Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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 approves 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 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.

National Technology Transfer Advancement Act

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

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.).

Congressional Review Act

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 rule 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 31, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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
• Incorporation by reference
• Intergovernmental relations
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

Dated: April 12, 2006.

Bharat Mathur,

Acting Regional Administrator, Region 5.

For the reasons stated in the preamble, part 52, chapter I, of title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart X—Michigan

2. Section 52.1170 is amended by adding paragraph (c)(122) to read as follows:

§ 52.1170

Identification of plan.

* * * * *

(c) * * *

(122) On April 3, 2003, May 28, 2003, September 17, 2004, October 25, 2004 and June 8, 2005, Michigan submitted revisions to the State Implementation

Plan which affect the following sections of the Michigan Administrative Code: Part 3: Emission Limitations and Prohibitions—Particulate Matter; Part 4: Emission Limitations and Prohibitions—Sulfur-bearing Compounds; Part 6: Emission Limitations and Prohibitions—Existing Sources of Volatile Organic Compound Emissions; Part 7: Emission Limitations and Prohibitions—New Sources of Volatile Organic Compound Emissions; Part 9: Emission Limitations and Prohibitions—Miscellaneous; Part 10: Intermittent Testing and Sampling; and Part 11: Continuous Emission Monitoring.

(i) Incorporation by reference. The following sections of the Michigan Administrative Code are incorporated by reference.

(A) Revisions to the following provisions of the Michigan Administrative Code, effective April 30, 1998:

(1) R 336.1358 Roof monitor visible emissions at steel manufacturing facilities from electric arc furnaces and blast furnaces.

(2) R 336.1361 Visible emissions from blast furnace casthouse operations at steel manufacturing facilities.

(3) R 336.1362 Visible emissions from electric arc furnace operations at steel manufacturing facilities.

(4) R 336.1363 Visible emissions from argon-oxygen decarburization operations at steel manufacturing facilities.

(B) R 336.1625 Emission of volatile organic compound from existing equipment utilized in manufacturing synthesized pharmaceutical products, filed with the Secretary of State on November 14, 2000 and effective November 30, 2000.

(C) Revisions to the following provisions of the Michigan Administrative Code, filed with the Secretary of State March 11, 2002 and effective March 19, 2002:

(1) R 336.1301 Standards for density of emissions.

(2) R 336.1303 Grading visible emissions.

(3) R 336.1330 Electrostatic precipitator control systems.

(4) R 336.1331 Emission of particulate matter, except C8 of Table 31.

(5) R 336.1371 Fugitive dust control programs other than areas listed in table 36.

(6) R 336.1372 Fugitive dust control program; required activities; typical control methods.

(7) R 336.1374 Particulate matter contingency measures; area listed in table 37.

(8) R 336.1401 Emission of sulfur dioxide from power plants.

(9) R 336.1403 Oil- and natural gas-producing or transporting facilities and natural gas-processing facilities; emissions; operation.

(10) R 336.1601 Definitions.

(11) R 336.1604 Storage of organic compounds having true vapor pressure of more than 1.5 psia, but less than 11 psia, in existing fixed roof stationary vessels of more than 40,000-gallon capacity.

(12) R 336.1605 Storage of organic compounds having true vapor pressure of 11 or more psia in existing stationary vessels of more than 40,000-gallon capacity.

(13) R 336.1606 Loading gasoline into existing stationary vessels of more than 2,000-gallon capacity at dispensing facilities handling 250,000 or more gallons per year.

(14) R 336.1607 Loading gasoline into existing stationary vessels of more than 2,000-gallon capacity at loading facilities.

(15) R 336.1608 Loading gasoline into delivery vessels at existing loading facilities handling less than 5,000,000 gallons per year.

(16) R 336.1615 Existing vacuum-producing systems at petroleum refineries.

(17) R 336.1616 Process unit turnarounds at petroleum refineries.

(18) R 336.1617 Existing organic compound-water separators at petroleum refineries.

(19) R 336.1618 Use of cutback paving asphalt.

(20) R 336.1619 Standards for perchloroethylene dry cleaning equipment; adoption of standards by reference.

(21) R 336.1622 Emission of volatile organic compounds from existing components of petroleum refineries; refinery monitoring program.

(22) R 336.1623 Storage of petroleum liquids having a true vapor pressure of more than 1.0 psia, but less than 11.0 psia, in existing external floating roof stationary vessels of more than 40,000-gallon capacity.

(23) R 336.1627 Delivery vessels; vapor collection systems.

(24) R 336.1628 Emission of volatile organic compounds from components of existing process equipment used in manufacturing synthetic organic chemicals and polymers; monitoring program.

(25) R 336.1629 Emission of volatile organic compounds from components of existing process equipment used in processing natural gas; monitoring program.

(26) R 336.1630 Emission of volatile organic compounds from existing paint manufacturing processes.

(27) R 336.1631 Emission of volatile organic compounds from existing process equipment utilized in manufacture of polystyrene or other organic resins.

(28) R 336.1702 New sources of volatile organic compound emissions generally.

(29) R 336.1705 Loading gasoline into delivery vessels at new loading facilities handling less than 5,000,000 gallons per year.

(30) R 336.1906 Diluting and concealing emissions.

(31) R 336.1911 Malfunction abatement plans.

(32) R 336.1930 Emission of carbon monoxide from ferrous cupola operations.

(33) R 336.2001 Performance tests by owner.

(34) R 336.2002 Performance tests by department.

(35) R 336.2003 Performance test criteria.

(36) R 336.2004 Appendix A; reference test methods; adoption of Federal reference test methods.

(37) R 336.2005 Reference test methods for delivery vessels.

(38) R 336.2007 Alternate version of procedure L, referenced in R 336.2040(10).

(39) R 336.2013 Reference test method 5D.

(40) R 336.2021 Figures.

(41) R 336.2040 Method for determination of volatile organic compound emissions from coating lines and graphic arts lines, except subrules (9) and (10).

(42) R 336.2101 Continuous emission monitoring, fossil fuel-fired steam generators.

(43) R 336.2150 Performance specifications for continuous emission monitoring systems.

(44) R 336.2155 Monitor location for continuous emission monitoring systems.

(45) R 336.2159 Alternative continuous emission monitoring systems.

(46) R 336.2170 Monitoring data reporting and recordkeeping.

(47) R 336.2189 Alternative data reporting or reduction procedures.

(48) R 336.2190 Monitoring system malfunctions.

(D) Revisions to the following provisions of the Michigan Administrative Code, effective October 15, 2004:

(1) R 336.2012 Reference test method 5C.

(2) R 336.2014 Reference test method 5E.

(3) R 336.2175 Data reduction procedures for fossil fuel-fired steam generators.

(E) R 336.2011 Reference test method 5B, filed with the Secretary of State on April 21, 2005 and effective April 29, 2005.