2010-23987. Approval and Promulgation of Air Quality Implementation Plans; Michigan; PSD Regulations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve revisions to the Michigan State Implementation Plan (SIP). The revisions serve to meet specific requirements of the prevention of significant deterioration (PSD) construction permit program under the Federal Clean Air Act (CAA). This program affects major stationary sources in Michigan that are subject to or potentially subject to the PSD construction permit program. On July 16, 2010, Michigan submitted revisions pertaining to the “net emission increase” definition and the “reasonable possibility” recordkeeping and reporting requirements, and EPA has found the revisions acceptable.

DATES:

This direct final rule will be effective November 26, 2010, unless EPA receives adverse comments by October 27, 2010. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2010-0657, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone].
• 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. 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's 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-2010-0657. 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 through http://www.regulations.gov or email information that you consider to be CBI or otherwise protected. 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.

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 Pamela Blakley, Chief, Air Permits Section, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Pamela Blakley, Chief, Air Permits Section, Air Programs Branch (AR-18J), U.S. 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. Background

II. What Proposed Revisions Are Included in This Approval?

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background

On December 21, 2006, Michigan submitted to EPA the Michigan Air Pollution Control Rules, part 18, rules R 336.2801 [(a) through (tt) except (j) and (ff)] to R 336.2819 and R 336.2823(1) to (14) (“part 18”) for approval into the Michigan SIP. Part 18 relates to the State of Michigan's PSD permit program. Revisions to part 18 were adopted by Michigan Department of Natural Resources and Environment (MDNRE) on December 4, 2006. EPA proposed to conditionally approve the PSD SIP rules under section 110 of the CAA on January 9, 2008 (73 FR 1570). EPA received several comments on its proposal. On September 16, 2008, after considering the comments, EPA finalized its conditional approval of the submittal, except for Michigan rule R 336.2816, “Sources Impacting Federal Class I Areas—Additional Requirements” (73 FR 53366). In a separate action on September 16, 2008, EPA addressed that excepted section by proposing to partially disapprove the portion of Michigan's SIP revision submission consisting of Michigan rule R 336.2816 (73 FR 53401).

On September 30, 2008, MDNRE submitted additional revisions to the SIP which incorporated the corrections required by EPA in the conditional approval. Specifically, the rules revised are R 336.2801(r)(ii)(definition of “emission unit”) and R 336.2801(hh) (definition of “potential to emit”). EPA concluded that the submitted revisions to the SIP satisfied the conditions listed in EPA's conditional approval, and converted its prior conditional approval to full approval on March 25, 2010 (75 FR 14401).

II. What proposed revisions are included in this approval?

On July 16, 2010, Michigan submitted two SIP revisions pertaining to the “net emission increase” definition and the “reasonable possibility” recordkeeping and reporting requirements. As part of its December 21, 2006 submittal, Michigan had established and EPA had approved the definition of “net emissions increase” in R 336.2801(ee). As allowed by 40 CFR 51.166(b), this definition was more stringent than the corresponding Federal definition at 40 CFR 51.166(b). However, in a letter dated May 17, 2007, Michigan indicated that it was revising the definition of “net emissions increase” so that it would follow the same requirements as the Federal rule. The revision was approved by the State on September 11, 2008, and Michigan submitted it to EPA on July 16, 2010, for approval into the Michigan SIP. The definition in the July 16, 2010, submittal is consistent with the definition in 40 CFR 51.166(b)(3).

Michigan also established the “reasonable possibility” recordkeeping and reporting requirements in R 336.2818(3) and submitted the rule for approval into the Michigan SIP as part of the December 21, 2006, submittal. Michigan rule R 336.2818 places specific requirements on the PSD permit, including recordkeeping requirements for applicants using certain methods for determining if a project results in a significant emissions increase. However, the MDNRE's minor source permitting program—Michigan rule R 336.201—requires this information to be submitted for all sources as part of a complete Permit To Install application before beginning actual construction on the proposed project (rather than where there is a “reasonable possibility” that the source may exceed the projected actual emissions, as required by the Federal regulations). Therefore, on September 11, 2008, Michigan adopted a revised rule R 336.2818(3) and, on July 16, 2010, submitted it to EPA for approval into the Michigan SIP. The revision is consistent with the requirements of 40 CFR 51.166(r)(6).

III. Final Action

As explained above, MDNRE submitted revisions to R 336.2801(ee) and R 336.2818(3). The revisions are consistent with the requirements of 40 CFR 51.166. Therefore, EPA is taking direct final action to approve Michigan's SIP revisions.

We are publishing this action without prior proposal because we view this as a noncontroversial revision and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the State plan if relevant adverse written comments are filed. This rule will be effective November 26, 2010 without further notice unless we receive relevant adverse written comments by October 27, 2010. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective November 26, 2010.

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 regulations, 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 Order 12866 (58 FR 51735, October 4, 1993);
• 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 CAA; 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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state will not impose substantial direct costs on tribal governments or preempt tribal law.

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 of 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 26, 2010. 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: September 11, 2010.

Susan Hedman,

Regional Administrator, Region 5.

40 CFR part 52 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. In § 52.1170, the table in paragraph (c) entitled “EPA-Approved Michigan Regulations” is amended by adding new entries in numerical order for part 18 to read as follows:

§ 52.1170

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Michigan Regulations

Michigan citation	Title	State effective date	EPA approval date	Comments
*         *         *         *         *         *         *
Part 18. Prevention of Significant Deterioration of Air Quality
*         *         *         *         *         *         *
R 336.2801	Definitions	September 11, 2008	September 27, 2010, [Insert page number where the document begins]	Section (ee).
*         *         *         *         *         *         *
R 336.2818	Source Obligation	September 11, 2008	September 27, 2010, [Insert page number where the document begins]	Section (3).
*         *         *         *         *         *         *

* * * * *