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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Part 52
DOCUMENT ID: [R05-OAR-2004-MI-0002; FRL-7849-1]
NOTICE: RULES
ACTION: Air quality implementation plans; approval and promulgation; various States:
DOCUMENT ACTION: Direct final rule.
SUBJECT CATEGORY: Approval and Promulgation of Implementation Plans: Michigan: Oxides of Nitrogen
DATES: This ``direct final'' rule is effective February 22, 2005, unless EPA receives written adverse comment by January 24, 2005. If written adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.
DOCUMENT SUMMARY: The EPA is approving a revision to the plan prepared by
Michigan that will limit the emissions of oxides of nitrogen
(NO
SUMMARY: Michigan,
SUPPLEMENTAL INFORMATION
Throughout this document whenever ``we,'' ``us,'' or ``our'' is used, we mean EPA. This section provides additional information by addressing the following questions: I. General InformationA. Does this action apply to me?
B. What Should I Consider as I Prepare My Comments for EPA? II. What is a SIP?
III. What is the Federal Approval Process for a SIP?
IV. Background
V. Michigan's Control of NO
VI. EPA Action
VII. What are the Statutory and Executive Order Review Requirements? I. General Information.
A. Does This Action Apply to Me?
This action applies to large stationary sources of NO
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments, remember to:
(a) Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
(b) Follow directionsThe agency may ask you to respond to
specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
(c) Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
(d) Describe any assumptions and provide any technical information and/or data that you used.
(e) If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be reproduced.
(f) Provide specific examples to illustrate your concerns, and suggest alternatives.
II. What Is a SIP?
Section 110 of the Clean Air Act (CAA) requires states to develop
air pollution regulations and control strategies to ensure that state
air quality meets the national ambient air quality standards
established by EPA. These ambient standards are established under
section 109 of the CAA, and they currently address six criteria
pollutants. These pollutants are: carbon monoxide, nitrogen dioxide,
ozone, lead, particulate matter, and sulfur dioxide. Each state must
submit these regulations and control strategies to us for approval [[Page 76850]]
and incorporation into the federallyenforceable SIP. Each federally
approved SIP protects air quality primarily by addressing air pollution
at its point of origin. These SIPs can be extensive and contain state
regulations or other enforceable documents, as well as supporting
elements such as emission inventories, monitoring networks, and modeling demonstrations.
III. What Is the Federal Approval Process For a SIP?
For state regulations to be incorporated into the federally
enforceable SIP, states must formally adopt the regulations and control
strategies consistent with state and federal requirements. This process
generally includes a public notice, public hearing, public comment
period, and a formal adoption by a stateauthorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the
state submits it to us for inclusion into the SIP. We must provide
public notice and seek additional public comment regarding the federal
action on the state submission. If adverse comments are received, they
must be addressed prior to any final federal action. All state
regulations and supporting information approved by EPA under section
110 of the CAA are incorporated into the federallyapproved SIP. EPA
has codified its actions on state SIP submittals in the Code of Federal
Regulations (CFR) at Title 40, part 52, entitled ``Approval and
Promulgation of Implementation Plans.'' The actual state regulations
which are approved are not reproduced in their entirety in the CFR, but
are ``incorporated by reference,'' which means that we have approved a given state regulation with a specific effective date.
IV. Background
A. What Are the Phase I NO
On October 27, 1998, EPA published a final rule entitled, ``Finding
of Significant Contribution and Rulemaking for Certain States in the
Ozone Transport Assessment Group Region for Purposes of Reducing
Regional Transport of Ozone,'' otherwise known as the ``NO
B. Conditional Approval of Michigan's Phase I NO
On April 3, 2003, MDEQ submitted to EPA for approval a SIP to
address the Phase I NO
C. What Deficiencies Were Identified and How Did MDEQ Address Them?
In the review of Michigan's April 3, 2003 NO
Following is a list of the identified deficiencies and a description of how MDEQ addressed them:
1. Deficiency: Rule 802(5) states, ``An oxides of nitrogen budget unit that is subject to a rule promulgated under section 126 of the Clean Air Act shall not be subject to this rule until the section 126 requirements no longer apply.'' Under this language, those oxides of nitrogen budget units that are subject to the Section 126 Rule and that would be subject to controls under the Michigan SIP are not covered by the SIP. The Section 126 Rule remains in place and will remain effective until EPA approves the Michigan SIP. The EPA cannot approve the Michigan SIP, and move forward to remove the Section 126 requirements, unless the SIP has in place regulations to achieve the necessary emissions reductions to meet the Phase I budget. In evaluating the SIP, EPA cannot take into consideration the emissions reductions required by the Section 126 Rule. Because the Section 126 Rule would still be in place at the time EPA takes action on the Michigan SIP, oxides of nitrogen budget units that would otherwise be subject to controls under the Michigan SIP would not be covered at that time. Therefore, the SIP would not be providing sufficient emissions reductions to meet the Phase I budget and would not be approvable. This language must be removed from the State's rules. EPA will then take action to ensure that no unit is subject to both trading programs.
Correction: MDEQ has removed this language.
2. Deficiency: The applicability of these rules is based on named
counties in the southern portion of Michigan. While this applicability
is sufficient to meet the requirements found in the SIP Call, it is not
enough to remove all of the Section 126 requirements from the State.
This is because there is one source, DTE's Harbor Beach unit, that is
affected by Section 126 requirements, but is not in one of the counties
affected by Michigan's NO
NO
Correction: The applicability section of this rule now includes the unit at DTE's Harbor Beach facility in Huron County.
3. Deficiency: Twentyfive ton exemptionStates may develop
alternative 25ton NO
In addition, when a unit receives a 25ton exemption, the unit's
potential emissions (reflected as an equivalent number of allowances)
must be removed from the trading budget to avoid double counting. An
exempt unit's emissions are included in the state's large Electric
Generating Unit (EGU) or large nonEGU emissions budget and therefore
as allowances in the state's trading budget. EPA is concerned that
Michigan's rule does not account for potential emissions from the exempt units. Neither the rule
[[Page 76851]]
nor the SIP submittal specifies a procedure for removing from the
trading budget the allowances reflecting the exempt unit's potential
emissions. To address the deficiencies related to the 25 ton exemption
provisions including the related budget adjustments, Michigan must
modify its regulations to ensure an exempt source's emissions are less
than 25 tons in each ozone season and provide a process for adjusting
the trading budget accordingly. EPA provided MDEQ suggested language modifying the regulations.
Correction: Language has been added to require monitoring in accordance with 40 CFR part 75, subpart H. Also, MDEQ has adopted the language suggested by EPA to address EPA's other concerns.
4. Deficiency: New source setasideThe new source setaside provisions of section 811(1)(a) specify the setaside pool allocation. The rule contains a typographical error regarding the number of allowances to be setaside after 2006. A footnote in the Michigan SIP submittal highlights this error and indicates the correct number. This error should be corrected since the official regulations are the basis for all allocations.
Also, section 811(2) appears to address the issue of adjusting a new source's allowances to account for reduced utilization, but is incomplete and, for example, lacks the adjustment formula. This section also appears to specify how remaining setaside allowances are determined, but that matter is also addressed in section 811(3). Michigan must clarify these provisions. EPA provided MDEQ suggested language to clarify these provisions.
Correction: The typographical error has been corrected and MDEQ has adopted the language suggested by EPA to address EPA's other concerns.
5. Deficiency: Language in section 802(1)(a) appears to allow the State to exempt an EGU for which applicability has not been determined. EPA cannot approve any exemption that is solely at the discretion of the State and does not include EPA approval as well. The language relating to exemptions based solely on the State's discretion must be removed as a condition of final approval.
Correction: This language has been removed in the version submitted by MDEQ for approval.
6. Deficiency: Language in section 804 relating to retired unit exemptions must be modified to include the requirement that a unit that qualifies for this exemption, is not required to have a permit, and subsequently resumes operation will lose the exemption at the time of resumption of operation. EPA provided MDEQ suggested language modifying this section of the regulations.
Correction: The ``loss of exemption'' language suggested by EPA has been adopted and submitted by MDEQ.
V. Michigan's Control of NO
A. When Did Michigan Submit the SIP Revision to EPA in Response to the NO
On April 3, 2003, MDEQ submitted a final revision to its SIP to
meet the requirements of the Phase I NO
B. When Did Michigan Hold Public Hearings and What Were the Results?
Public hearings were held on December 3, 2001 and January 22, 2003
for the April 3, 2003 submittal. A public hearing was held on March 11,
2004 for the May 27, 2004 submittal. MDEQ holds public hearings on
rules at the end of a 30day public comment period. MDEQ either
modified its rules to accommodate the comments received or explained why the rules were not changed in light of the comments.
C. What Is Included in Michigan's NO
Michigan allows, as in the model rule, EGUs and nonEGUs to
participate in the multistate cap and trade program. Cement kilns are
not included in the trading program, but will be required to install
low NO
Michigan's SIP revision to meet the requirements of the
NO
Michigan's Oxides of Nitrogen Budget Trading Program (Rules 802
through 816) establishes and requires participation in a NO
The State of Michigan chose to follow EPA's model NO
serving a generator with a nameplate capacity greater than 25 MW that
sell any amount of electricity) as well as nonEGUs (fossil fuel fired
industrial boilers and turbines that have a maximum design heat input
greater than 250 mmBtu per hour). Each NO
Source owners will monitor and report their NO
Michigan's Oxides of Nitrogen Budget Trading Program establishes
requirements for cement manufacturing facilities. These sources are
subject to NO
Michigan's submittal demonstrates that the Phase I NO
D. What Is the Compliance Supplement Pool?
To provide additional flexibility for complying with emission
control requirements associated with the NO
A state may issue some or all of the compliance supplement pool via
two mechanisms. First, a state may issue some or all of the pool to
sources with credits from implementing NO
E. How Does Michigan's NO
All of the existing sources in the SIP Call area that are subject
to EPA's Section 126 Rule are also subject to Michigan's NO
VI. EPA Action
EPA is fully approving the NO
We are approving: Michigan's revision of the ozone SIP that
responds to EPA's Phase I NO
By this action, we are also vacating our April 16, 2004 (69 FR
20548) conditional approval of Michigan's earlier NO
The EPA is publishing this action without prior proposal because we
view this as a noncontroversial amendment 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
comments are filed. This rule will be effective February 22, 2005
without further notice unless we receive relevant adverse written
comments by January 24, 2005. 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. The 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 February 22, 2005.
VII. What Are the Statutory and Executive Order Review Requirements? Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, 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
Because this action does not significantly affect energy supply, distribution or use, it is not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). 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
[[Page 76853]]
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Unfunded Mandates Reform Act
Because this rule approves preexisting 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 (Public Law 1044).
Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
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 (65 FR 67249, 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 (64 FR 43255, 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 CAA. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks
This 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 is not economically significant. National Technology Transfer Advancement Act
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
Paperwork Reduction Act
This rule 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. 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).
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 February 22, 2005. 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 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
Dated: December 3, 2004.
Bharat Mathur,
Acting Regional Administrator, Region 5.
Part 52, chapter I, title 40 of the Code of Federal Regulations 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 XMichigan
2. Section 52.1170 is amended by adding paragraph (c)(121) to read as follows:
Sec. 52.1170 Identification of plan.
* * * * *
(c) * * *
(121) On April 3, 2003, the Michigan Department of Environmental Quality (MDEQ) submitted a revision to the Michigan State
Implementation Plan (SIP). This SIP revision was made to address EPA
requirements placed on a number of States in the eastern half of the
country to reduce emissions of oxides of nitrogen (NO
[[Page 76854]]
R336.1817 Emission limitations and restrictions for Portland cement kilns.
(i) Incorporation by reference. The following sections of the
Michigan Administrative Code are incorporated by reference.
(A) R336.1802 Applicability under oxides of nitrogen budget trading program, effective May 20, 2004.
(B) R336.1803 Definitions for oxides of nitrogen budget trading program, effective December 4, 2002.
(C) R336.1804 Retired unit exemption from oxides of nitrogen budget trading program, effective May 20, 2004.
(D) R336.1805 Standard requirements of oxides of nitrogen budget trading program, effective December 4, 2002.
(E) R336.1806 Computation of time under oxides of nitrogen budget trading program, effective December 4, 2002.
(F) R336.1807 Authorized account representative under oxides of
nitrogen budget trading program, effective December 4, 2002.
(G) R336.1808 Permit requirements under oxides of nitrogen budget trading program, effective December 4, 2002.
(H) R336.1809 Compliance certification under oxides of nitrogen budget trading program, effective December 4, 2002.
(I) R336.1810 Allowance allocations under oxides of nitrogen budget trading program, effective December 4, 2002.
(J) R336.1811 New source setaside under oxides of nitrogen budget trading program, effective May 20, 2004.
(K) R336.1812 Allowance tracking system and transfers under oxides
of nitrogen budget trading program, effective December 4, 2002.
(L) R336.1813 Monitoring and reporting requirements under oxides of
nitrogen budget trading program, effective December 4, 2002.
(M) R336.1814 Individual optins under oxides of nitrogen budget trading program, effective December 4, 2002.
(N) R336.1815 Allowance banking under oxides of nitrogen budget trading program, effective December 4, 2002.
(O) R336.1816 Compliance supplement pool under oxides of nitrogen budget trading program, effective December 4, 2002.
(P) R336.1817 Emission limitations and restrictions for Portland cement kilns, effective December 4, 2002.
Sec. 52.1218 [Amended]
3. Section 52.1218 is amended by removing and reserving paragraph (a). [FR Doc. 0427983 Filed 122204; 8:45 am]
BILLING CODE 656050P
FOR FURTHER INFORMATION CONTACT Douglas Aburano, Environmental Engineer, Criteria Pollutant Section (AR18J), Air Programs Branch, Air and Radiation Division, United States Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 3536960, aburano.douglas@epa.gov.
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