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E-M:/ Michigan gets full approval on Title V Clean Air Act permits

Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>

[Federal Register: December 4, 2001 (Volume 66, Number 233)]
[Rules and Regulations]
[Page 62949-62951]
 >From the Federal Register Online via GPO Access [wais.access.gpo.gov]



40 CFR Part 70

[MI; FRL-7111-6]

Clean Air Act Final Full Approval Of Operating Permit Program;

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: The EPA is taking final action to fully approve the operating
permit program submitted by the state of Michigan. Michigan submitted
its operating permit program pursuant to subchapter V of the Clean Air
Act (Act), which requires that permitting authorities develop, and
submit to EPA, programs for issuing operating permits to all major
stationary sources and to certain other sources within the permitting
authority's jurisdiction.

EFFECTIVE DATE: November 30, 2001.

ADDRESSES: Copies of the state's submittal and other supporting
information used in developing the final full approval are available
for inspection during normal business hours at the following location:
EPA Region 5, 77 West Jackson Boulevard (AR-18J), Chicago, Illinois
60604. Please contact the person listed below to arrange a time to
inspect the submittal.

FOR FURTHER INFORMATION CONTACT: Beth Valenziano, 77 West Jackson
Boulevard (AR-18J), Chicago, Illinois 60604, (312) 886-2703,
<A HREF="mailto:valenziano.beth@epa.gov";>valenziano.beth@epa.gov</A>.

SUPPLEMENTARY INFORMATION: This section provides additional information
by addressing the following questions:

What is being addressed in this document?
What is involved in this final action?

What Is Being Addressed in This Document?

     As required under Subchapter V of the Act, EPA has promulgated
regulations that define the minimum elements of an approvable state
operating permit program and the corresponding standards and procedures
by which EPA will approve, oversee, or withdraw approval of state
operating permit programs (see 57 FR 32250 (July 21, 1992)). These
regulations are codified at 40 Code of Federal Regulations (CFR) part
70. Pursuant to Subchapter V, generally known as title V, states and
local permitting authorities developed, and submitted to EPA, programs
for issuing operating permits to all major stationary sources and to
certain other sources.
     The EPA's program review occurs under section 502 of the Act and
the part 70 regulations, which together outline criteria for approval
or disapproval. Where a program substantially, but not fully, meets the
requirements of part 70, EPA granted the program interim approval. If
EPA has not fully approved a state operating permit program by the
expiration of its interim approval period, EPA must establish and
implement a federal operating permit program under 40 CFR part 71.
     The Michigan Department of Environmental Quality (MDEQ) submitted
the state's title V operating permit program for approval on May 16,
1995, with supplements submitted on July 20, 1995, October 6, 1995,
November 7, 1995, and January 8, 1996. The EPA promulgated interim
approval of the Michigan title V program on January 10, 1997 (62 FR
1387), finding that Michigan's program substantially, but not fully,
met the requirements of title V and part 70 and identifying certain
deficiencies that Michigan would need to correct. The interim approved
program became effective on February 10, 1997. Subsequently, EPA
extended Michigan's title V interim approval period on several
occasions, most recently to December 1, 2001 (65

[[Page 62950]]

FR 32036). On June 18, 1997, EPA granted Michigan source category
limited interim approval, approving Michigan's 4-year initial permit
issuance schedule (62 FR 34010). Source category limited interim
approval allows EPA to approve an initial state permit issuance
schedule up to 2 years past the 3-year phase in period required by 40
CFR 70.4(b)(11)(ii).
     The MDEQ submitted revisions to its title V program for EPA
approval on June 1, 2001, and submitted a supplemental package on
September 20, 2001. The submittals included corrections to the
deficiencies identified in the January 10, 1997 interim approval
action, and also included additional program revisions and updates.
Based on the interim approval corrections contained in the submittals,
EPA proposed full approval for the Michigan title V program on October
30, 2001 (66 FR 54737). The EPA did not receive any public comments on
the proposal. The EPA is taking final action to grant full approval to
the Michigan title V program.

What Is Involved in This Final Action?

     The EPA is granting full approval of the operating permit program
submitted by Michigan based on the interim approval corrections
submitted on June 1, 2001, and the supplemental package submitted on
September 20, 2001. These revisions satisfactorily address the program
deficiencies identified in EPA's January 10, 1997 interim approval
     On May 22, 2000, EPA promulgated a rulemaking that extended the
interim approval period of 86 operating permits programs until December
1, 2001 (65 FR 32035). The action was subsequently challenged by the
Sierra Club and the New York Public Interest Research Group. In
settling the litigation, EPA agreed to publish a notice in the Federal
Register that would alert the public that they may identify and bring
to EPA's attention alleged programmatic and/or implementation
deficiencies in title V programs. In turn, EPA would respond to the
public's allegations within specified time periods, if the comments
were made within 90 days of publication of the Federal Register notice.
     The EPA received two timely comment letters pertaining to the
Michigan title V program. As stated in the Federal Register notice
published on October 30, 2001 proposing to fully approve Michigan's
operating permit program, EPA takes no action on those comments in
today's action. Rather, EPA expects to respond by December 1, 2001 to
timely public comments on Michigan's program and other programs that
have obtained interim approval, and by April 1, 2002 to timely comments
on fully approved programs. Consistent with these time frames, EPA also
will publish a notice of deficiency (NOD) if EPA determines that a
deficiency exists, or will notify the commenter in writing to explain
the reasons for not making a finding of deficiency. An NOD will not
necessarily be limited to deficiencies identified by citizens and may
include any deficiencies that EPA has identified through its program
oversight. Furthermore, in the future, EPA may issue an additional NOD
if EPA or a citizen identifies other deficiencies. EPA Region 5 will
post its response letters on the Internet at <A 
r5/ardcorre.nsf/Title+V+Program+Comments</A>. EPA Region 5 includes the
states of Michigan, Minnesota, Illinois, Indiana, Ohio, and Wisconsin.
EPA will also publish a national notice of availability in the Federal
Register notifying the public that EPA has responded in writing to the
commenters and explaining how the public may obtain a copy of EPA's

Administrative Requirements

A. What Are the Administrative Requirements for This Action?

     Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this final approval is not a ``significant
regulatory action'' and therefore is not subject to review by the
Office of Management and Budget. For this reason, 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). 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 final approval 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.). 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
an unfunded mandate nor does it significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4).
     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,
``Consultation and Coordination with Indian Tribal Governments'' (65 FR
67249, November 9, 2000). This rule also does not have federalism
implications because it will 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,
``Federalism'' (64 FR 43255, August 10, 1999). This rule merely
approves existing requirements under state law, and does not alter the
relationship or the distribution of power and responsibilities between
the state and the federal government established in the Act.
     This final approval is also 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 a significant
regulatory action under Executive Order 12866. This action will not
impose any collection of information subject to the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., other than those
previously approved and assigned OMB control number 2060-0243. For
additional information concerning these requirements, see 40 CFR part
70. An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
     Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTA), 15 U.S.C. 272 note, 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 state operating permit programs submitted pursuant to title V
of the Act, EPA will approve state programs provided that they meet the
requirements of the Act and EPA's regulations codified at 40 CFR part
70. Absent a prior existing requirement for the state to use voluntary
consensus standards, EPA has no authority to disapprove a state
operating permit program for failure to

[[Page 62951]]

use such standards, and it would thus be inconsistent with applicable
law for EPA to use voluntary consensus standards in place of a state
program that otherwise satisfies the provisions of the Act. Therefore,
the requirements of section 12(d) of the NTTA do not apply.
     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. The 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). This rule will be effective November 30, 2001.
     Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 4, 2002. 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) of the Act.)

B. What Is the Effective Date of EPA's Full Approval of Michigan's
Title V Program?

     The EPA's approval of Michigan's title V program is effective on
November 30, 2001. Pursuant to section 502(h) of the Act, the effective
date of a permitting program approved under title V is the date of
approval by the Administrator or her delegatee. Furthermore, the good
cause exception under the Administrative Procedure Act (APA) allows EPA
to make the full approval of the state's program immediately effective.
In relevant part, the APA provides that publication of ``a substantive
rule shall be made not less than 30 days before its effective date,
except--* * * (3) as otherwise provided by the agency for good cause
found and published with the rule.'' 5 U.S.C. 553(d)(3). Section
553(b)(3)(B) of the APA provides that good cause may be supported by an
agency determination that a delay in the effective date is
impracticable, unnecessary, or contrary to the public interest. The EPA
finds that it is necessary and in the public interest to make this
action effective sooner than 30 days following publication. In this
case, EPA believes that it is in the public interest for the program to
take effect before December 1, 2001. The EPA's interim approval of
Michigan's prior program expires on December 1, 2001. In the absence of
this full approval of Michigan's amended program taking effect on
November 30, the federal program under 40 CFR part 71 would
automatically take effect in Michigan and would remain in place until
the effective date of the fully-approved state program. The EPA
believes it is in the public interest for sources, the public and
Michigan to avoid any gap in coverage of the state program, as such a
gap could cause confusion regarding permitting obligations.
Furthermore, a delay in the effective date is unnecessary because MDEQ
has been administering the title V permit program for nearly five years
under an interim approval. Through this action, EPA is approving a few
revisions to the existing and currently operational program. The change
from the interim approved program which substantially met the part 70
requirements, to the fully approved program is relatively minor, in
particular if compared to the changes between a state-established and
administered program and the federal program.

C. What Is the Scope of EPA's Full Approval?

     In Michigan's final interim approval (62 FR 1387, January 10,
1997), EPA did not approve the state's program in Indian country.
Similarly, this final full approval, which only addresses the state's
interim approval corrections, also does not approve Michigan's
operating permit program in Indian country. To date, no tribal
government in Michigan has applied to EPA for approval to administer a
title V program in Indian country within the state. The EPA regulations
at 40 CFR part 49 govern how eligible Indian tribes may seek approval
from EPA to implement a title V program on Indian reservations and in
non-reservation areas over which the tribe has jurisdiction. The EPA's
part 71 regulations govern the issuance of federal operating permits in
Indian country. The EPA's authority to issue permits in Indian country
was challenged in Michigan v. EPA, (D.C. Cir. No. 99-1151). On October
30, 2001, the court issued its decision in the case, vacating a
provision that would have allowed EPA to treat areas over which EPA
determines there is a question regarding the area's status as if it is
Indian country, and remanding to EPA for further proceedings. The EPA
will respond to the court's remand and explain EPA's approach for
further implementation of part 71 in Indian country in a future action.

List of Subjects in Part 70

     Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.

     Authority: 42 U.S.C. 7401-7671q.

     Dated: November 27, 2001.
Thomas V. Skinner,
Regional Administrator, Region V.

     40 CFR part 70 is amended as follows:


     1. The authority citation for part 70 continues to read as follows:

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

     2. Appendix A to part 70 is amended by adding paragraph (a)(3) to
the entry for Michigan to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs

* * * * *


     (a) * * *
     (3) Department of Environmental Quality: interim approval
corrections submitted on June 1, 2001 and September 20, 2001;
submittals adequately address the conditions of the interim approval
which expires on December 1, 2001. Based on these corrections, Michigan
is hereby granted final full approval effective on November 30, 2001.
* * * * *
[FR Doc. 01-29965 Filed 12-3-01; 8:45 am]

Alex J. Sagady & Associates  http://my.voyager.net/~ajs/sagady.pdf

Environmental Enforcement, Technical Review, Public Policy and
Communications on Air, Water and Waste/Community Environmental Protection

PO Box 39,  East Lansing, MI  48826-0039
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