[Federal Register Volume 84, Number 59 (Wednesday, March 27, 2019)]
[Proposed Rules]
[Pages 11464-11466]
[FR Doc No: 2019-05772]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-1092; FRL-9991-39-Region 5]

Air Plan Approval; Michigan; Permit To Install Public Hearing
Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve certain changes to the Michigan State Implementation Plan
(SIP). This action relates to changes to the Permit to Install
requirements for public participation of permitting actions.
Additionally, the action contains changes to the rule which address
permit emission limits that are enforceable as a practical matter.

DATES: Comments must be received on or before April 26, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-1092 at https://www.regulations.gov, or via email to
<EMAIL_ADDRESS>For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the For Further Information Contact section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Constantine Blathras, Environmental
Engineer, Air Permits Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604,<PHONE_NUMBER><EMAIL_ADDRESS>
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. Review of State Submittal
III. What Action is EPA Taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background

    Section 110(a)(2)(C) of the Clean Air Act requires that the SIP
include a program to provide for the ``regulation of the modification
and construction of any stationary source within the areas covered by
the plan as necessary to assure that national ambient air quality
standards are achieved.'' This includes a program for permitting
construction and modification of both major and minor sources that the
state deems necessary to protect air quality. The State of Michigan's
minor source permit to install rules are contained in Part 2 (Air Use
Approval) of the Michigan Administrative Code. Changes to the Part 2
rules were submitted on November 12, 1993; May 16, 1996; April 3, 1998;
September 2, 2003; March 24, 2009; and February 28, 2017.
    Michigan originally submitted its Michigan R 336.1205 (rule 205) as
a revision to its Part 2 SIP on May 16, 1996. The most recent version
of rule 205 was submitted to EPA on March 24, 2009 and has a state
effective date of June 20, 2008. EPA published a proposed approval of
all Part 2 changes, except rule 205, on August 15, 2017 (82 FR 38651).
EPA took no action to approve rule 205 at that time. Most recently, EPA
approved changes to the Part 2 rules (except rule 205) in a final
approval dated August 31, 2018 (83 FR 44485). In this action, EPA is
proposing approval to revisions to the SIP for Michigan rule 205 and
324.5511(3) of the Michigan Natural Resources and Environmental
Protection Act. Rule 205 is titled ``Permit to install; approval.'' and
is a section of the Part 2 air use approval rules of the Michigan
Administrative Code that specifies the requirements for issuance of air
pollutant construction permits. Michigan Act 451, Part 55, section
324.5511(3) defines the permitting actions requiring public comment and
public hearing opportunities.

II. Review of State Submittal

(1) R 336.1205 (Rule 205) of Michigan's Part 2 Air Permit Rules

    The provisions of rule 205 require a permit to install that
includes limitations which restrict the potential to emit from a
stationary source, process, or process equipment to a quantity below
that which would otherwise constitute a major source or major
modification under any part of the Part 2 air permit rules. The permit
to install must contain adequate emission limits that are enforceable
as a practical matter; with a consideration to the time-period,
production, emission, usage and/or operational limits that

restrict the source's potential to emit in order to demonstrate
compliance.
    Michigan rule 205 describes the content and public participation
process for the Michigan Department of Environmental Quality (MDEQ), as
the permitting authority, to act on certain permits which need to be
``federally enforceable'' or enforceable as a practical matter.
Additionally, the rule also prescribes these requirements for any
permit issued under Section 112 of the Clean Air Act. This rule
incorporates guidance published by EPA in the Federal Register on June
28, 1989 (54 FR 27274) on limiting a source's potential to emit. The
rule applies only to sources and modifications defined as ``major''
under Federal regulations and to sources which would be subject to the
``major'' requirements except for conditions contained in the permit
which limit the potential to emit to less than the applicable emission
thresholds. Sources which accept conditions which limit the potential
to emit to something less than the true design capacity of the
equipment being installed are referred to as ``synthetic minor''
sources. The Michigan rule sets a deminimus level for these ``synthetic
minor'' sources at 50% of the applicable emission threshold.
    Rule 205 specifies that the draft permit is subject to the public
participation process specified in section 324.5511(3) of Michigan Act
451. The requirements of section 324.5511(3) are reviewed and further
described below. Lastly, Michigan, at its discretion, may approve a
permit to install that includes limitations restricting the potential
to emit of the stationary source without meeting the requirements of
section 324.5511(3) if the emission limitations restrict the potential
to emit of the source to less than 90% of the quantity referenced in
the applicable requirement.

(2) 324.5511(3) of Michigan Act 451

    In its May 1996 submittal, MDEQ requested that all of Part 55 of
Act 451 of the 1994 Michigan act be approved as a revision to the
Michigan SIP in addition to rule 205 and other sections of Michigan's
Part 2 air permit program rules. EPA did not act on the request to
include Part 55 of the Michigan act into the Michigan SIP, nor did we
approve rule 205. Upon EPA's review of the submittal, we determined
that the other sections of the Part 55 act, such as 324.5506, pertain
to the Michigan operating permits program. EPA approved the mechanism
for Michigan's title V operating permits program but did not approve
its operating permits rules into the SIP because that program has a
different approval mechanism under the Clean Air Act. Additionally,
section 324.5511(3) references consent orders and the public notice
opportunity for those actions. Actions related to consent orders are
not being approved into a state's SIP.
    On December 19, 2018, Michigan submitted a clarification letter to
EPA specifying that it only intended to submit a selection of section
324.5511(3), of the Natural Resources and Environmental Protection Act
451 of 1994 as part of the revision with Michigan rule 205 into the
SIP. Michigan rule 205 references the above-mentioned rule 324.5511(3)
at R 336.1205(1)(b) citing, ``A draft permit has been subjected to the
public participation process specified in section 324.5511(3) of the
act.'' EPA is proposing to approve the selection of section 5511(3)
into the Michigan SIP as submitted by the state in their December 19,
2018 letter. The selected language as submitted removes references to
Michigan's operating permits program and consent order requirements
which are not being approved into the SIP, nor are they required to be
approved into the SIP. Michigan does not intend to submit a revision to
its SIP language pertaining to its title V operating permits program or
to actions related to consent orders, but only for New Source Review
construction permitting purposes.
    EPA requires that major sources and major modifications to major
sources subject to the Prevention of Significant Deterioration of air
quality and those sources impacting nonattainment areas be subject to
public participation requirements, including a public comment period
and opportunity for a public hearing. EPA already approved Michigan's
major source air permitting program into the Michigan SIP and its
associated public participation requirements, found in Michigan rule R
336.2817, on March 25, 2010 (75 FR14352) in accordance with the minimum
requirements found in 40 CFR 51.166. Sources subject to Part 19, new
source review for major sources impacting nonattainment areas, are
required to obtain a permit subject to the permitting provisions of
Michigan rules Part 19, which meet the minimum requirements found in 40
CFR 51.165(a) and (b), and rule 201 of the Part 2 air permit rules.
    By approving Michigan's rule 205 and section 324.5511(3) of the
Michigan act as a revision to the Michigan SIP, the SIP is therefore
strengthening the existing state public notice requirements for public
participation of air permits. As stated in Michigan's letter, ``These
additions will strengthen the Michigan SIP by formalizing the public
participation process for all permits issued pursuant to Part 55 and R
336.1201, as well as major source prevention of significant
deterioration and nonattainment NSR permits to install.''
    Section 324.5511(3), paragraphs (a), (b), and (c) specify the
requirements for permit notification and sets the public comment period
to at least 30 days with an opportunity for a public hearing with at
least a 30-day notice. The current SIP required NSR public
participation process provides for only a 21-day public notice and
comment period. The Federal permit public participation requirements
are only applicable for major source and major modifications in both
attainment and nonattainment areas and not the minor source permitting
program. Approving the provisions of rule 205 and section 324.5511(3)
into the SIP will further strengthen the already approved minor air
pollutant construction permitting program by adding a public notice
requirement for those sources above 90% of the quantity referenced in
the applicable requirements which would constitute a major source or
major modification and prescribing the permit emission limitations
which will make the synthetic minor air permit practically enforceable.
Michigan will continue to exercise its discretion making draft permits
available for public comment which are below the 90% quantity in the
applicable requirements for a major source or major modification.

III. What action is EPA taking?

    EPA is proposing to approve Michigan rule R 336.1205, ``Permit to
install; approval'' and portions of section 324.5511(3) of Michigan Act
451 of 1994 into the Michigan SIP.

IV. Incorporation by Reference

    In this rule, EPA proposes to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements on 1 CFR 51.5, EPA proposes to incorporate by
reference Michigan Administrative Code R 336.1205 Permit to install;
approval, effective June 20, 2008. EPA has made, and will continue to
make, these documents generally available through www.regulations.gov
and at the EPA Region 5 Office (please contact the person identified in
the For Further Information Contact section of this preamble for more
information).

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Clean Air Act
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
choices, provided that they meet the criteria of the Clean Air Act.
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 Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
     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 Clean Air Act; 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, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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: March 18, 2019.
Cathy Stepp,
Regional Administrator, Region 5.
[FR Doc. 2019-05772 Filed 3-26-19; 8:45 am]
 BILLING CODE 6560-50-P