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. How Michigan's Revisions Satisfy the Terms of the Conditional Approval

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background

Michigan Air Pollution Control Rules, Part 18, Rules R 336.2801 [(a) through (tt)] except for (j) and (ff) to R 336.2819 and R 336.2823(1) to (14) (“Part 18”) were submitted to EPA for inclusion in the SIP by MDEQ on December 21, 2006. Part 18 relates to the State of Michigan's PSD permit program. Revisions to Part 18 were adopted by MDEQ on December 4, 2006. EPA proposed to conditionally approve the PSD SIP rules under section 110 of the CAA on January 9, 2008 (73 FR 1570). EPA received several comments on its proposal. After considering the comments, EPA finalized its conditional approval of rules R 336.2801 to R 336.2819 (except R 336.2816, “Sources Impacting Federal Class I Areas—Additional Requirements”) and R 336.2823(1) to (14) on September 16, 2008 (73 FR 53366). In addition, in a separate action on September 16, 2008, EPA proposed to partially disapprove the portion of Michigan's SIP revision submission consisting of Michigan Rule R 336.2816 (73 FR 53401).

On September 30, 2008, MDEQ submitted the revisions to the SIP, incorporating the corrections required by EPA in the conditional approval. Specifically, the rules revised are R 336.2801(r)(ii) (definition of “emission unit”) and R 336.2801(hh) (definition of “potential to emit”). After consideration, EPA concludes that the submitted revisions to the SIP satisfy the conditions listed in EPA's conditional approval, and today is converting its prior conditional approval to full approval. Additionally, EPA is rescinding its delegation of the PSD regulations to Michigan.

The September 30, 2008 letter from Michigan to EPA also mentions revisions to rules R 336.1816(2) through (4), R 336.1801(ee), and R 336.1818(3) and (3)(f). EPA will take separate action on rules R 336.1816(2) through (4) (requirements relating to Class I areas).

Michigan is not authorized to carry out its SIP approved PSD 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 PSD program in Indian Country.

Because modifications of Rule R 336.1801(ee) (“net emissions increase”) and R 336.1818(3) and (3)(f) (the “reasonable possibility” recordkeeping and reporting requirements) are not part of the requirements of the conditional approval, and MDEQ has not previously requested EPA's action on them, EPA is not acting on these modifications at this time. Unless and until these modifications are submitted and approved, they are not part of the SIP.

II. How Michigan's Revisions Satisfy the Terms of the Conditional Approval

Michigan has established the definition of “emissions unit” in R 336.2801(r)(ii). This is consistent with the definition in 40 CFR 51.166(b)(7). Included in both the Federal and State definitions is the statement that a replacement unit is considered an existing unit under this definition. However, Michigan's rules did not define “replacement unit,” which is included in the Federal rule at 40 CFR 51.166(b)(32). In a letter sent to EPA on May 17, 2007, Michigan agreed to follow the Federal definition of “replacement unit” in its implementation of these rules, and committed to add the definition in a future rulemaking. In a subsequent letter to EPA, dated November 30, 2007, MDEQ committed to add this definition in the rules not later than one year after EPA's conditional approval of this plan. Therefore EPA conditionally approved this rule on September 16, 2008 (73 FR 53366).

On September 11, 2008, MDEQ adopted the revised rule, at the State level, to include the definition of “replacement unit.” The definition is consistent with the definition in 40 CFR 51.166(b)(32). On September 30, 2008, MDEQ submitted the revision of the rule to EPA. EPA finds that this correction satisfies the condition listed in EPA's conditional approval.

Michigan has established the definition of “potential to emit” in rule R 336.2801(hh). This definition is consistent with the definition in 40 CFR 51.166(b)(4), except instead of “federally enforceable,” vacated in Chemical Manufacturers Assn v. EPA, No. 89-1514 (DC Cir. Sept. 15, 1995), the Michigan rules use the more general term “legally enforceable.” See EPA Interim Policy on Federally Enforceable Requirement for Limitations on Potential to Emit, dated January 22, 1996 (“Interim Policy”). EPA concluded that the use of the term “legally enforceable” was approvable as part of the definition of “potential to emit” because Michigan agreed to apply the term “legally enforceable” in accordance with the Interim Policy to mean “legally and practically enforceable by a State or local air pollution control agency, as well as by the EPA.” In general, practicable enforceability for a source-specific permit means that the permit's provisions must specify: (1) A technically-accurate limitation and the portions of the source subject to the limitation; (2) the time period for the limitation (hourly, daily, monthly, and annual limits such as rolling annual limits); and (3) the method to determine compliance including appropriate monitoring, recordkeeping, and reporting. For rules and general permits that apply to categories of sources, practicable enforceability additionally requires that the provisions: (1) Identify the types or categories of sources that are covered by the rule; (2) where coverage is optional, provide for notice to the permitting authority of the source's election to be covered by the rule; and (3) specify the enforcement consequences relevant to the rule.

Michigan committed in a letter dated September 11, 2007, to apply the term “legally enforceable” in a manner consistent with the above, and to revise the rule to make it consistent with this understanding. In a subsequent letter to EPA, dated November 30, 2007, MDEQ committed to add this definition in the rules not later than one year after EPA's conditional approval of this plan. Therefore EPA conditionally approved this rule on September 16, 2008 (73 FR 53366).

On September 11, 2008, MDEQ adopted the revised rule, at the State level, to include in the definition of “potential to emit” the condition that a limitation must be “enforceable as a practical matter by the State, local air pollution control agency, or United States environmental protection agency.” The revised definition is consistent with the definition in 40 CFR 51.166(b)(4) and with the Interim Policy dated January 22, 1996. On September 30, 2008, MDEQ submitted to EPA the ( printed page 14354) revision to the rule. EPA finds that this correction satisfies the condition listed in EPA's conditional approval.

III. Final Action

As explained above, MDEQ submitted revisions to the rules at R 336.2801(r)(ii) (definition of “emission unit”) and R 336.2801(hh) (definition of “potential to emit”), and has satisfied the conditions listed in EPA's conditional approval. Therefore, EPA is taking direct final action to convert its conditional approval of Michigan's SIP revisions to a full approval of Michigan's PSD program, with the exception of Rule R 336.2816. EPA is taking separate action on Michigan Rule R 336.2816, which was also included in the State's December 21, 2006, PSD program submission. Because modifications of Rule R 336.1801(ee) (“net emissions increase”) and R 336.1818(3) and (3)(f) (the “reasonable possibility” recordkeeping and reporting requirements) were not previously submitted to EPA for approval, EPA is not taking action on these modifications at this time.

We are 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 written comments are filed. This rule will be effective May 24, 2010 without further notice unless we receive relevant adverse written comments by April 26, 2010. 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. 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 May 24, 2010.

IV. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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 regulations, provided that they meet the criteria of the CAA. 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 underExecutive Order 12866 (58 FR 51735, October 4, 1993);
• 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 inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject toExecutive 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 CAA; 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, underExecutive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and, additionally, EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

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 action 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 May 24, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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).)

40 CFR part 52 is amended as follows:

1. The authority citation for part 52 continues to read as follows:

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

2. In § 52.1170, the table in paragraph (c) entitled “EPA-Approved Michigan Regulations” is amended by adding a new entry for Part 18 to read as follows:

3. Remove and reserve § 52.1188.