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E-M:/ Michigan air operating permits

[Federal Register: November 10, 2003 (Volume 68, Number 217)]
[Rules and Regulations]
[Page 63735-63737]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]


40 CFR Part 70
[MI 82-02; FRL-7585-3]
Clean Air Act Final Approval of Operating Permit Program
Revision; Michigan

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.


SUMMARY: The EPA is taking final action to approve revisions to
Michigan's title V air operating permit program, including revisions to
Michigan Administrative Rule (R) 336.1216. R 336.1216(1)(b)(iv) no
longer applies the permit shield provisions to certain administrative
permit amendments. The EPA's final approval of this rule revision
resolves the deficiency identified in EPA's Notice of Deficiency (NOD),
published in the Federal

[[Page 63736]]

Register on December 11, 2001 (66 FR 64038). This final action also
removes any resulting consequences, including sanctions, with respect
to the December 11, 2001 NOD.

EFFECTIVE DATE: December 10, 2003.

ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the final 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="" href="" eudora="autourl">mailto:valenziano.beth@epa.gov">valenziano.beth@epa.gov</A>.

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

I. What is the History of Michigan's Title V Operating Permit
II. What is the Program Change That EPA is Approving?
III. What is Involved in This Final Action?
IV. Statutory and Executive Order Reviews

I. What Is the History of Michigan's Title V Operating Permit Program?

    As required under Subchapter V of the Clean Air Act (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. 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 Michigan Department of Environmental Quality submitted
Michigan's title V operating permit program for EPA approval on May 16,
1995, with supplements submitted on July 20, 1995, October 6, 1995,
November 7, 1995, and January 8, 1996. The EPA granted interim approval
of the Michigan title V program on January 10, 1997 (62 FR 1387), and
the program became effective on February 10, 1997. Subsequently, based
on the interim approval corrections that the State submitted on June 1,
2001 and September 20, 2001, EPA granted final full approval of the
Michigan title V program, effective November 30, 2001. The EPA
published the final full program approval in the Federal Register on
December 4, 2001 (66 FR 62949).
    Pursuant to its authority at 40 CFR 70.10(b), EPA published an NOD
for Michigan's title V operating permit program on December 11, 2001
(66 FR 64038). The NOD was based upon EPA's finding that Michigan's
regulation granting a permit shield for certain administrative permit
amendments did not meet federal requirements for program approval. On
May 7, 2003 and May 21, 2003, Michigan submitted to EPA a revision to
its title V program correcting this program deficiency. Because
Michigan's May 2003 submittals included revisions to R 336.1216 that
the State had not yet finalized, EPA proposed approval of the draft
State rule with final approval contingent upon Michigan promulgating
and submitting a final rule identical in substance to the draft rule.
The EPA's proposed approval of Michigan's title V operating permit
program revisions was published on June 23, 2003 (68 FR 37110-37112).
The EPA received no comments on the proposal. On August 18, 2003,
Michigan submitted for EPA approval its final R 336.1216 and supporting
documentation as a revision to Michigan's title V program. Michigan's
final R 336.1216 is identical to the draft rule Michigan submitted to
EPA on May 7, 2003.

II. What Is the Program Change That EPA Is Approving?

    Michigan has revised its permit modification regulation, R
336.1216, to remove the permit shield provision for certain types of
administrative permit amendments. Michigan's rule is now consistent
with 40 CFR 70.7(d)(4), which does not allow a permit shield for the
types of changes described below. The permit shield provisions at 40
CFR 70.6(f) offer enforcement protection in certain prescribed
situations. Michigan's revised R 336.1216(1)(b)(iv) states: ``The
permit shield provided under R 336.1213(6) does not extend to
administrative amendments made pursuant to subdivision (a)(i) to (iv)
of this subrule.'' R 336.1216(1)(a) (i) through (iv) allows
administrative amendments for the following types of changes: a change
that corrects typographical errors; a change in the name, address or
phone number of the responsible official or other contact person; a
change that provides for more frequent monitoring and reporting; and a
change in the ownership or operational control of a source where no
other changes to the permit are necessary. These types of
administrative permit amendments are the same as those specified in the
federal rules at 40 CFR 70.7(d)(1) (i)-(iv). This rule revision
resolves the deficiency identified in EPA's NOD, published in the
Federal Register on December 11, 2001 (66 FR 64038).
    In addition, R 336.1216 includes other minor changes to Michigan's
permit modification rule, including changes to the citation method for
Michigan laws, and a clarification to R 336.1216(1)(b)(iii) regarding
the implementation of administrative permit amendment changes made
pursuant to R 336.1216(1)(a) (i) through (iv). This clarification is
consistent with 40 CFR 70.7(d)(3)(iii) and 70.7(e)(2)(v).

III. What Is Involved in This Final Action?

    The EPA is approving revisions to the title V operating permit
program submitted by the State of Michigan on May 7, 2003, May 21,
2003, and August 18, 2003. The program submittals include revisions to
Michigan's operating permit modification rule, R 336.1216. These
revisions meet the requirements of title V and 40 CFR part 70. R
336.1216(1)(b)(iv) is now consistent with 40 CFR 70.7(d)(4). Michigan's
program revision satisfactorily addresses the program deficiency
identified in EPA's NOD, published on December 11, 2001 (66 FR 64038).
Pursuant to 40 CFR 70.10(b), EPA finds that Michigan is not subject to
sanctions for the deficiency identified in the December 11, 2001
notice. Further, EPA is not obligated to promulgate a federal permit
program for the December 11, 2001 NOD.
    Consistent with EPA's final full approval of Michigan's title V
program (66 FR 62951), this approval does not extend to Indian Country,
as defined in 18 United States Code 1151.

IV. Statutory and Executive Order Reviews

Executive Order 12866; Regulatory Planning and Review

    Under Executive Order 12866, ``Regulatory Planning and Review''
(<a href="" href="" eudora="autourl">http://www.epa.gov/fedrgstr/eo/eo12866.htm">58 FR 51735</a>, 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

    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).

[[Page 63737]]

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 action 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).

Executive Order 13175 Consultation and Coordination With Indian Tribal

    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''
(<a href="" href="" eudora="autourl">http://www.epa.gov/fedrgstr/eo/eo13175.htm">65 FR 67249</a>, 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, ``Federalism''
(<a href="" href="" eudora="autourl">http://www.epa.gov/fedrgstr/eo/eo13132.htm">64 FR 43255</a>, 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 Act.

Executive Order 13045 Protection of Children From Environmental Health
and Safety Risks

    This final approval 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 a significant
regulatory action under executive order 12866.

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

Civil Justice Reform

    As required by section 3 of Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this rule, EPA has taken the necessary
steps to eliminate drafting errors and ambiguity, minimize potential
litigation, and provide a clear legal standard for affected conduct.

Governmental Interference With Constitutionally Protected Property

    EPA has complied with Executive Order 12630 (53 FR 8859, March 15,
1988) by examining the takings implications of the rule in accordance
with the ``Attorney General's Supplemental Guidelines for the
Evaluation of Risk and Avoidance of Unanticipated Takings'' issued
under the executive order, and has determined that the rule's
requirements do not constitute a taking.

Paperwork Reduction Act

    This action 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. 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.

Judicial Review

    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 January 9, 2004. 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 Part 70

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

    Dated: October 31, 2003.
Bharat Mathur,
Acting 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)(4) to the
entry for Michigan to read as follows:

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

* * * * *


    (a) * * *
    (4) Department of Environmental Quality: Program revisions
submitted on May 7, 2003, May 21, 2003, and August 18, 2003,
including Michigan Administrative Rule 336.1216; submittals
satisfactorily address EPA's Notice of Program Deficiency, published
on December 11, 2001 (66 FR 64038). Final full approval of these
revisions is effective December 10, 2003.
* * * * *
[FR Doc. 03-28213 Filed 11-7-03; 8:45 am]

Alex J. Sagady & Associates        http://www.sagady.com

Environmental Enforcement, Permit/Technical Review, Public Policy,
Evidence Review and Litigation Investigation on Air, Water and
Waste/Community Environmental and Resource Protection
Prospectus at:  http://www.sagady.com/sagady.pdf

PO Box 39,  East Lansing, MI  48826-0039 
(517) 332-6971; (517) 332-8987 (fax); ajs@sagady.com