Daily Rules, Proposed Rules, and Notices of the Federal Government
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MDEQ submitted Michigan Air Pollution Control Rules, Part 18, Rules R 336.2801 to R 336.2819 and R 336.2823(1) to (14) (“Part 18”) to EPA on December 21, 2006, for EPA approval and inclusion into the Michigan SIP. Part 18 relates to Michigan's PSD permit program. Michigan adopted revisions to Part 18 on December 4, 2006. Prior to approval of Michigan's submitted PSD program, EPA delegated to Michigan
On January 9, 2008, EPA proposed to conditionally approve Michigan's PSD SIP rules under section 110 of the Clean Air Act (CAA). (73 FR 1570, January 9, 2008). During the public comment period, EPA received a number of comments on our proposal. A summary of the comments and our answers are included in a separate action published in today's
Michigan Rule R 336.2816 is based on 40 CFR 51.166(p)(1)-(7), which sets out the mechanisms which facilitate the participation of the FLM in the State's permitting process for purposes of protecting either the increment or the AQRVs associated with a Class I area from potential impacts from a proposed major source or major modification.
EPA has determined that Michigan Rule R 336.2816, as submitted, is not consistent with 40 CFR 51.166(p). Specifically, Michigan Rule R 332.2816(2)(a) does not include the requirements of 40 CFR 51.166(p)(3), under which a plan must provide a mechanism whereby the FLM may present to the state a demonstration of adverse impacts to AQRVs from a proposed source or modification, notwithstanding that the change in air quality resulting from this proposed source or modification would not cause or contribute to an exceedence of the maximum allowable increase for the Class I area. In such cases, where the state concurs with the FLM's demonstration, the State does not issue a permit. Additionally, EPA sought clarification from the State as to how it planned to implement certain State rules corresponding to the variance provisions contained in 40 CFR 51.166(p)(4), (5), and (6).
On November 30, 2007, in a letter from Steven Chester, Director, MDEQ, to the Regional Administrator, Michigan committed, among other things, to making changes to Michigan Rule R 336.2816 consistent with the requirements at 40 CFR 51.166(p). Based on this commitment, EPA proposed to conditionally approve Michigan Rule R 336.2816.
During the comment period, commenters raised concerns that, insofar as Michigan Rule R 336.2816 does not fully implement the regulatory mechanism by which an FLM may participate in the State's permitting process, EPA should act to ensure that the SIP contains these requirements until such time as the State promulgates consistent regulations.
Because Michigan currently implements the Federal PSD program under EPA's delegation of 40 CFR 52.21, a conditional approval of Michigan Rule R 336.2816 would have made the Michigan SIP less stringent than the currently applicable, Federally delegated program. Therefore, EPA is proposing to disapprove Michigan's submittal as it relates to Michigan Rule R 336.2816. Michigan will retain its Federal delegation of authority under 40 CFR 52.21(p) until such time as the State submits promulgated rules equivalent to 40 CFR 51.166(p) and those rules are approved into its SIP. Retention of the delegated program until such time as Michigan promulgates and EPA approves a corrective rule will ensure that the provisions of 40 CFR 51.166(p) will continue to apply, thereby avoiding any regulatory gap, and ensuring full participation of the FLM, as appropriate, in State permitting decisions.
In the alternative, EPA is proposing to approve Michigan's revised Michigan Rule R 336.2816 if the rule is revised to meet the requirements set forth in Federal rule 40 CFR 51.166(p). In its letter to EPA dated November 30, 2007, Michigan has committed to make this revision to its rule.
Michigan is not authorized to carry out its Federally approved air program in “Indian Country,” as defined in 18 U.S.C. 1151. Indian Country includes: 1. All lands within the exterior boundaries of Indian reservations within the State of Michigan; 2. Any land held in trust by the U.S. for an Indian tribe; and 3. Any other land, whether on or off an Indian reservation that qualifies as Indian Country. Therefore, EPA retains the authority to implement and administer the CAA program in Indian Country.
EPA is proposing to disapprove the following section of “Part 18, Prevention of Significant Deterioration of Air Quality” of Michigan's Air Pollution Control Rules: “R 336.2816, Sources Impacting Federal Class I Areas—additional requirements.” In the alternative, EPA is proposing to approve this same section of Michigan's Rule R 336.2816, if the rule is revised to meet the requirements set forth in Federal rule 40 CFR 51.166(p), as Michigan has committed to do in its letter to EPA dated November 30, 2007.
For reasons stated above, EPA is proposing to disapprove certain revisions to Michigan's SIP, specifically Michigan Rule R 336.2816, Sources Impacting Federal Class I Areas; additional requirements. EPA is, in the alternative, proposing to approve Michigan Rule R 336.2816 when the rule is revised to meet the requirements set forth in Federal rule 40 CFR 51.166(p), as Michigan has committed to do in its letter to EPA dated November 30, 2007.
Under section 110(k)(3) of the CAA, EPA may fully approve or disapprove a State submittal. Where portions of the State submittal are separable, EPA may approve portions of the submittal that meet the requirements of the CAA, and disapprove the portions of the submittal that do not meet the requirements of the CAA. (57 FR 13566, April 16, 1992.) Elsewhere in today's
The State's current Michigan Rule R 336.2816 is not consistent with 40 CFR 51.166(p), which sets out the mechanisms which facilitate the participation of the FLM in the State's permitting process for purposes of protecting either the increment or the AQRVs associated with a Class I area from potential impacts from a proposed major source or major modification.
The State has committed to revise current Michigan Rule R 336.2816, which sets out the mechanisms which facilitate the participation of the FLM in the State's permitting process for purposes of protecting either the increment or the AQRVs associated with a Class I area from potential impacts from a proposed major source or major modification, by promulgating rules equivalent to 40 CFR 51.166(p). The State has formalized this commitment in a letter to EPA dated November 30, 2007. EPA has reviewed the State's proposed regulatory changes and has
Under Executive Order 12866 (58 FR 51735, September 30, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.
This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this proposed 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
Because this rule proposes to approve 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).
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 proposes to approve a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA.
This proposed 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). Nevertheless, EPA anticipates providing outreach to tribes located in Michigan and other potentially affected areas regarding this proposed rulemaking.
This proposed 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 proposes approval of a state rule implementing a Federal standard.
Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory 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).
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 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 impractical. In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP 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 CAA. Therefore, the requirements of section 12(d) of the NTTAA do not apply.
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.