Approval and Promulgation of State Implementation Plan; Michigan; Miscellaneous Rule Changes, Technical Changes

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MI24-01-6259a; FRL-5054-3]

Approval and Promulgation of State Implementation Plan; Michigan;

Miscellaneous Rule Changes, Technical Changes

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: The USEPA partially approves and partially disapproves a

revision to the Michigan State Implementation Plan (SIP) incorporating

technical changes to miscellaneous air control rules. These changes are

not federally mandated, but the State has requested that USEPA

incorporate the changes into the SIP.

DATES: This final rule will be effective November 14, 1994 unless

notice is received by October 17, 1994 that someone wishes to submit

adverse comments. If the effective date is delayed, timely notice will

be published in the Federal Register.

ADDRESSES: Written comments should be sent to:Carlton T. Nash, Chief,

Regulation Development Section, Air Toxics and Radiation Branch (AT-

18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard,

Chicago, Illinois 60604.

Copies of the SIP revision and USEPA's analysis are available for

inspection at the U.S. Environmental Protection Agency, Region V, Air

and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois

60604. (It is recommended that you telephone Megan Beardsley at (312)

886-0669 before visiting the Region 5 Office.)

A copy of this SIP revision is also available at the Office of Air

and Radiation, Docket and Information Center (Air Docket 6102), Room

M1500, U.S. Environmental Protection Agency, 401 M. Street, SW.,

Washington, DC 20460, (202) 260-7548.

FOR FURTHER INFORMATION CONTACT: Megan Beardsley, Environmental

Scientist, Regulation Development Section, Air Toxics and Radiation

Branch (AT-18J), U.S. Environmental Protection Agency, Region V,

Chicago, Illinois 60604, (312) 886-0669.

SUPPLEMENTARY INFORMATION:

I. Background

On November 12, 1993 the State of Michigan requested that the USEPA

revise its SIP to incorporate a number of technical rule changes that

the State adopted in 1989. Most of these changes are minor, clarifying

rules or removing definitions of terms no longer used in Michigan law,

but some changes are more substantial.

Michigan's technical changes to miscellaneous rules were not

required by the Clean Air Act (the Act) or other Federal law or policy.

However, because the State requested that the changes be incorporated

into the SIP, USEPA must review the changes to assure that they are in

accordance with the Act.

II. Evaluation of State Submission

A. Procedural Background

The Act requires States to observe certain procedural requirements

in developing its SIP, of which the revisions will become a part.

Section 110(a)(2) of the Act provides that each implementation plan

submitted by a State must be adopted after reasonable notice and public

hearing.1 Section 110(l) similarly provides that each revision to

an implementation plan submitted by a State under the Act must have

been adopted by such State after reasonable notice and public hearing.

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\1\Also, section 172(c)(7) of the Act requires that plan

provisions for nonattainment areas meet the applicable provisions of

section 110(a)(2).

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The State of Michigan held a public hearing on June 9, 1988 to

solicit public comment on the miscellaneous rule changes. No comments

were received. Michigan submitted the proposed SIP revision to USEPA on

November 15, 1993.

The USEPA reviewed the proposed SIP revision to determine

completeness in accordance with the completeness criteria for SIP

revisions specified in 40 CFR part 51, appendix V. The USEPA found the

submittal complete, and sent a letter stating this finding to the

Governor's delegate on January 7, 1994.

B. Submittal Review

Most of the changes submitted by the State to USEPA clarified and

strengthened the SIP. These changes are described below and in EPA's

Technical Support Document for this document (M. Beardsley to Files,

May 10, 1994).

Approvable Changes:

Throughout the rules included in this package, the State has

updated and clarified references to other State rules. These changes

are acceptable.

The State has deleted the definition for ``green tire,'' (R

336.1107 (c)) and ``undertread cementing'' (R 336.1121) because the

terms are no longer used in State rules. This is acceptable. The State

has replaced the term ``potential emissions'' with ``uncontrolled

emissions'' (R336.1121) and has defined this term. The new definition

is consistent with that used by USEPA.

The State has revised a rule governing sulfur emissions (R

336.1403) to require shut-off devices for facilities that burn large

quantities of sour gas and has exempted certain sour gas storage

vessels from control requirements. The USEPA has no specific guidance

on sour gas shut-off devices, but these changes are reasonable and

acceptable revisions to the SIP.

The State has revised rules governing vapor recovery for gasoline

and other organic compounds (R 336.1606-9) to replace the term ``ozone

nonattainment area'' with ``any county listed in table 61-a,'' which is

a list of current ozone nonattainment areas. This change will make the

vapor recovery rules applicable in the counties currently designated as

nonattainment areas even after these areas are redesignated to

attainment. This change strengthens the SIP and is approvable. In R

336.1608 and 336.1609, the State also has changed the wording of the

rule to clarify that the rules apply to vapor recovery requirements at

existing facilities rather than existing delivery trucks. This is

approvable.

The State has changed the notification requirements for process

turnarounds at petroleum refineries to allow notification ``as soon as

reasonably possible'' (R 336.1616). Because USEPA has no notification

requirements for turnarounds, this change is acceptable.

The State has deleted the rule (R 336.1626) regulating VOC

emissions from rubber tire manufacturing. The State has no tire

manufacturing facilities. This deletion is acceptable.

Michigan has changed R 336.1705 to clarify that rules apply to

vapor recovery requirements at new fuel loading facilities rather than

to new delivery trucks. This is a useful and approvable change.

Michigan has changed R 336.2005 on testing and sampling to list

pressure and vacuum measurements in inches of water as well as pounds

per square inch. This change is acceptable.

Changes Requiring Disapproval:

Several of the proposed SIP revisions submitted by the State of

Michigan are not approvable by the USEPA. These changes and their

deficiencies are described below and in detail in USEPA's Technical

Support Document (M. Beardsley to Files, May 10, 1994).

(1) Michigan changed the definition of ``good engineering practice

design,'' (R 336.1107 (c)) in order to comply with Federal tall stack

policy. This general change is acceptable, subject to USEPA rulemaking

in response to the remand decision in NRDC v Thomas, 838 F.2d 1224

(D.C. Cir. 1988); but the revised rule also includes provisions for

exceptions to be made at the discretion of the State air commission (R

336.1107 (b) (iv)). Such exemptions are revisions to the SIP and, under

section 110(l) of the Act, must be submitted to USEPA for approval. For

this reason, USEPA cannot approve discretionary provisions. Since this

provision is inseparable from the rest of the definition, the entire

paragraph, R 336.1107 (b), must be disapproved.

Similarly, Michigan revised R 336.1241 (b), which includes language

requiring sources to use meteorological data from National Weather

Service stations unless they have air commission approval for the use

of other data, and Michigan revised R 336.2005 (f) to allow the use of

alternative test methods if they are approved by the air commission.

Since each of these provisions is inseparable from the rest of its

respective rule, USEPA must disapprove the entire requested revision

for both rules.

(2) The State has updated citations to USEPA's ``Guidelines on Air

Quality Models'' in R 336.1240. The guidelines have changed

substantially since the dates cited in the revised rule, making the

rule unapprovable as written. The rule also allows State discretion in

approving alternate models (R 336.1240 (2) (b). As described above,

this use of discretion is unapprovable. USEPA disapproves the State's

requested revisions for this rule.

(3) Michigan changed R 336.1706 to clarify that the rule applies to

new fuel loading facilities; however, in R 336.1706(1) the word ``new''

was retained in reference to delivery vessels. In conjunction with the

changes made in 336.1609, this wording creates an exemption from the

requirement for submerged filling for existing delivery vessels at new

facilities. This exemption is contrary to USEPA guidance (Control of

Volatile Organic Emissions from Bulk Gasoline Plants. EPA-450/2-77-035,

December 1977), and the State has provided no justification for the

exemption, which appreas to be a mistake. The rule is unapprovable.

(4) In R 336.2150, 336.2151, 336.2153, 336.2175, 336.2176, and

336.2199, the State has updated citations to USEPA performance

specifications and standards for new sources. Because the

specifications and standards have been substantially revised since the

1982 and 1983 versions cited in the revised Michigan rules, the rules

are unapprovable.

C. Action

USEPA has reviewed Michigan's proposed SIP revision incorporating

technical changes to miscellaneous rules and, as described above, has

found that some of the proposed revisions meet the requirements of the

Act and of USEPA policy, while others do not meet these requirements.

Hence, the USEPA partially approves the revision request, approving the

changes to the following Michigan Air Pollution Control Rules: R

336.1107 (except paragraph (c)); R 336.1121, R 336.1403. R 336.1606, R

336.1607, R 336.1608, R 336.1609, R 336.1616, R 336.1626 (deleted), and

R 336.1705.

Likewise, USEPA disapproves the State's request to incorporate into

the SIP the submitted revisions to the following Michigan Air Pollution

Control rules: R 336.1107 (c), R 336.1240, R 336.1241, R 336.1706, R

336.2005, R 336.2150, R 336.2151, R 336.2153, R 336.2175, R 336.2176,

and R 336.2199.

Because USEPA considers this action noncontroversial and routine,

we are approving it without prior proposal. This action will become

effective on November 14, 1994. However, if we receive adverse comments

by October 17, 1994, USEPA will publish a document that withdraws this

action and will address all public comments in a subsequent final rule

based on the proposal published in the proposal section of this Federal

Register. The public comment period will not be extended or reopened.

IV. Miscellaneous

A. Applicability to Future SIP Decisions

Nothing in this action should be construed as permitting, allowing

or establishing a precedent for any future request for revision to any

SIP. The USEPA shall consider each request for revision to the SIP in

light of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

B. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Exectutive Order 12866 review.

C. Regulatory Flexibility

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities (5 U.S.C. 603 and 604).

Alternatively, USEPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

This partial approval does not create any new requirements.

Therefore, I certify that this action does not have a significant

impact on any small entities affected. Moreover, due to the nature of

the Federal-State relationship under the Act, preparation of the

regulatory flexibility analysis would constitute Federal inquiry into

the economic reasonableness of the State action. The Act forbids USEPA

to base its actions concerning SIPs on such grounds (Union Electric Co.

v. U.S. E.P.A., 427 U.S. 246, 256-66 (1976)).

D. Petitions for Judicial Review

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 November 14, 1994. 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 oxides, Ozone, Volatile organic compounds.

Dated: August 8, 1994.

David A. Ullrich,

Acting Regional Administrator.

40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart X--Michigan

2. Section 52.1170 is amended by adding paragraph (c)(95) to read

as follows:

Sec. 52.1170 Identification of plan.

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(c) * * *

(95) On November 15, 1993, the State of Michigan requested revision

to the Michigan State Implementation Plan (SIP) to incorporate

miscellaneous technical rule changes that the State had made effective

April 20, 1989.

(i) Incorporation by reference.

(A) Michigan Air Pollution Control Rules: R 336.1107 (except

paragraph (c)); R 336.1121, R 336.1403. R 336.1606, R 336.1607, R

336.1608, R 336.1609, R 336.1616, R 336.1626 (deleted), and R 336.1705,

effective April 20, 1989.

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[FR Doc. 94-22782 Filed 9-14-94; 8:45 am]

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