Approval of Section 112(l) Program of Delegation; Michigan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[MI49-01(a); FRL-6189-8]

Approval of Section 112(l) Program of Delegation; Michigan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving,

through a ``direct final'' procedure, a request for a program for

delegation of the Federal air toxics program contained within 40 CFR

Parts 61 and 63 pursuant to Section 112(l) of the Clean Air Act (Act)

of 1990. The State's mechanism of delegation involves the straight

delegation of all existing and future Section 112 standards unchanged

from the Federal standards. The actual delegation of authority of

individual standards, except for standards addressed specifically in

this action, will be in the form of a letter from EPA to the Michigan

Department of Environmental Quality (MDEQ). This request for approval

of a mechanism of delegation encompasses all sources not covered by the

Part 70 program. In the proposed rules section of this Federal

Register, the EPA is proposing approval of, and soliciting comments on,

this approval. If adverse comments are received on this action, the EPA

will withdraw this final rule. It will then address the comments

received in response to this action in a final rule based on the

related proposed rule being published in the ``Proposed Rules'' section

of this Federal Register. A second public comment period will not be

held. Parties interested in commenting on this action should do so at

this time. This approval makes the State's rule federally enforceable.

DATES: The ``direct final'' is effective on January 22, 1999, unless

EPA receives adverse or critical written comments by December 23, 1998.

If adverse comment is received, EPA will publish a timely withdrawal of

the rule in the Federal Register informing the public that the rule

will not take effect.

ADDRESSES: Written comments should be sent to: Robert B. Miller, Chief,

Permits and Grants Section, Air

[[Page 64633]]

Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West

Jackson Boulevard, Chicago, Illinois 60604.

Copies of the State's submittal and other supporting information

used in developing the approval are available for inspection during

normal business hours at the following locations:

EPA Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, Illinois,

60604

Air Quality Division, Michigan Department of Environmental Quality, 106

West Allegan Street, Lansing, Michigan 48909

Please contact Laura Gerleman at (312) 353-5703 to arrange a time

if inspection of the submittal is desired.

FOR FURTHER INFORMATION CONTACT: Laura Gerleman, AR-18J, 77 West

Jackson Boulevard, Chicago, Illinois, 60604, (312) 353-5703.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

Section 112(l) of the Act enables the EPA to approve State air

toxics programs or rules to operate in place of the Federal air toxics

program. The Federal air toxics program implements the requirements

found in Section 112 of the Act pertaining to the regulation of

hazardous air pollutants. Approval of an air toxics program is granted

by the EPA if the Agency finds that the State program: (1) is ``no less

stringent'' than the corresponding Federal program or rule, (2) the

State has adequate authority and resources to implement the program,

(3) the schedule for implementation and compliance is sufficiently

expeditious, and (4) the program is otherwise in compliance with

Federal guidance. Once approval is granted, the air toxics program can

be implemented and enforced by State or local agencies, as well as EPA.

Implementation by local agencies is dependent upon appropriate

subdelegation.

On October 12, 1995, Michigan submitted to EPA a request for

delegation of authority to implement and enforce the air toxics program

under Section 112 of the CAA. On January 8, 1996, EPA found the State's

submittal complete. In this notice EPA is taking final action to

approve the program of delegation for Michigan.

II. Review of State Submittal

A. Program Summary

Requirements for approval, specified in section 112(l)(5), require

that a State's program contain adequate authorities, adequate resources

for implementation, and an expeditious compliance schedule. These

requirements are also requirements for an adequate operating permits

program under Part 70 (40 CFR 70.4). On January 10, 1997, EPA

promulgated a final interim approval under Part 70 of the State of

Michigan's Operating Permit Program. The Federal Register rulemaking

included the approval of a mechanism for delegation of all Section 112

standards for sources subject to the Part 70 program. Sources subject

to the Part 70 program are those sources that are required to operate

pursuant to a Part 70 permit issued by the State, local agency or EPA.

Sources not subject to the Part 70 program are those sources that are

not required to obtain a Part 70 permit from either the State, local

agency or EPA (see 40 CFR 70.3). This action supplements the Part 70

rulemaking in that Michigan will have the authority to implement and

enforce the Section 112 air toxics program as provided by the approved

mechanism of delegation regardless of a source's Part 70 applicability.

The Michigan program of delegation for sources not subject to Part

70 will not include delegation of Section 112(r) authority or

radionuclide emissions standards. The program will, however, include

the delegation of the 40 CFR Part 63 general provisions to the extent

that they are not reserved to the EPA and are delegable to the State.

As stated above, this document constitutes EPA's approval of

Michigan's program of straight delegation of all existing and future

air toxics standards as they pertain to non-Part 70 sources, except for

Section 112(r) standards or radionuclide emissions standards. Straight

delegation means that the State will not promulgate individual State

rules for each Section 112 standard promulgated by EPA, but will

implement and enforce without changes the Section 112 standards

promulgated by EPA. The Michigan program of straight delegation will

operate as follows: For a future Section 112 standard for which MDEQ

intends to accept delegation, EPA will automatically delegate the

authority to implement a Section 112 standard to the State by letter

unless MDEQ notifies EPA differently within 45 days of EPA final

promulgation of the standard. MDEQ will incorporate non-part 70

standards by reference into the State code of regulations as

expeditiously as practicable, and if possible, within 12 months of

promulgation by EPA. Upon completion of regulatory action, MDEQ will

submit to EPA proof of incorporation by reference for that standard.

EPA will respond with a letter delegating enforcement authority to the

State.

Michigan will assume responsibility for the timely implementation

and enforcement required by the standard, as well as any further

activities agreed to by MDEQ and EPA. Some activities necessary for

effective implementation of the standard include receipt of initial

notifications, recordkeeping, reporting and generally assuring that

sources subject to the standard are aware of its existence. When deemed

appropriate, MDEQ will utilize the resources of its Small Business

Assistance Program to assist in general program implementation. The

details of this delegation mechanism are set forth in a memorandum of

agreement between EPA and MDEQ, copies of which are located in the

docket associated with this rulemaking.

B. Criteria for Approval

On November 26, 1993, EPA promulgated regulations to provide

guidance relating to the approval of State programs under Section

112(l) of the Act. 40 FR 62262. That rulemaking outlined the

requirements of approval with respect to various delegation options.

The requirements for approval, pursuant to Section 112(l)(5) of the

Act, of a program to implement and enforce Federal Section 112 rules as

promulgated without changes are found at 40 CFR 63.91. Any request for

approval must meet all section 112(l) approval criteria, as well as all

approval criteria of Section 63.91. A more detailed analysis of the

State's submittal pursuant to Section 63.91 is contained in the

Technical Support Document included in the official file of this

rulemaking.

Under Section 112(l) of the Act, approval of a State program is

granted by the EPA if the Agency finds that it: (1) is ``no less

stringent'' than the corresponding Federal program, (2) that the State

has adequate authority and resources to implement the program, (3) the

schedule for implementation and compliance is sufficiently expeditious,

and (4) the program is otherwise in compliance with Federal guidance.

C. Analysis

EPA is approving Michigan's mechanism of delegation for non-part 70

sources because the State's submittal meets all requirements necessary

for approval under Section 112(l). The first requirement is that the

program be no less stringent than the Federal program. The Michigan

program is no less stringent than the corresponding Federal program or

rule because the State has requested straight delegation of all

standards unchanged from the Federal standards. Second, the State has

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shown that it has adequate authority and resources to implement the

program. Michigan's Natural Resources and Environmental Protection Act

authorizes MDEQ to issue construction and operating permits to Part 70

and non-Part 70 sources of regulated pollutants to assure compliance

with all applicable requirements of the Act. 55 MCL 324.5503(b). The

authority to issue permits includes the authority to incorporate permit

conditions that implement Federal Section 112 standards. Furthermore,

Michigan has the authority to implement each Section 112 regulation,

emission standard or requirement (regardless of Part 70 applicability),

perform inspections, request compliance information, incorporate

requirements into permits and to bring civil and criminal enforcement

actions to recover penalties and fines. As for non-part 70 sources,

Michigan will have the authority to enforce each Section 112

regulation, emission standard or requirement applicable to non-part 70

sources upon its incorporation into the State code of regulations.

Adequate resources will be obtained through both State funding and

Section 105 grant monies awarded to States by EPA to implement the

program for non-Part 70 sources and through monies from the State's

Title V program to fund acceptable Title V activities with respect to

Part 70 sources.

Third, upon promulgation of a standard, Michigan will immediately

begin activities necessary for timely implementation of the standard.

These activities will involve identifying sources subject to the

applicable requirements and notifying these sources of the applicable

requirements. Also, upon promulgation of a standard, Michigan will

expeditiously incorporate by reference the standard into the State code

of regulations. Such schedule is sufficiently expeditious for approval.

Fourth, nothing in the Michigan program for straight delegation is

contrary to Federal guidance.

D. Michigan's Audit Privilege and Immunity Law

On March 18, 1996, Michigan Governor John Engler signed the State's

Environmental Audit Privilege and Immunity Law (Michigan's Privilege

and Immunity Law of 1996), Part 148 of Michigan's Natural Resources and

Environmental Protection Act. This law provides that sources can hold

confidential broad categories of information contained in a voluntary

environmental audit report. The law also provides sources immunity from

certain State civil and criminal penalties for violations discovered

through an environmental self audit, provided the violations are

promptly reported and corrected. EPA believes that Michigan's Privilege

and Immunity Law of 1996 affected the State's authority to assure

compliance with and enforce Section 112 standards. In a letter dated

July 1, 1997, to Russell Harding, Director of MDEQ, EPA stated what

changes would need to be made to Michigan's Privilege and Immunity Law

of 1996 in order to have sufficient enforcement authorities to meet,

inter alia, the approval criteria in Part 63. On November 13, 1997,

Michigan Governor John Engler signed into law Public Acts 133 and 134

of 1997 (Michigan's Privilege and Immunity Law of 1997), which is Part

148 of Michigan's Natural Resources and Environmental Protection Act,

amending Michigan's Privilege and Immunity Law of 1996. Michigan's

Privilege and Immunity Law of 1997 was submitted to EPA on November 21,

1997, in order to address EPA's concerns. In a letter dated December

12, 1997, EPA stated that with the newly enacted Michigan's Privilege

and Immunity Law of 1997, along with MDEQ's commitment in a July 1,

1997 letter on the use of confidentiality agreements and the

interpretations by the Attorney General, EPA's concerns have been

addressed and the audit privilege issues have been resolved. With

Michigan's Privilege and Immunity Law of 1997, Michigan now has

adequate authority to assure compliance by all sources with each

applicable standard.

E. Determinations

In approving this mechanism of delegation, EPA expects that the

State will obtain concurrence from EPA on any matter involving the

interpretation of Section 112 of the Clean Air Act or 40 CFR part 63 to

the extent that implementation, administration, or enforcement of these

sections have not been covered by EPA determinations or guidance.

III. Final Action

The EPA is promulgating final approval of the October 12, 1995,

request by the State of Michigan of a mechanism for straight delegation

of Section 112 standards unchanged from Federal standards because the

request meets all requirements of 40 CFR 63.91 and Section 112(l) of

the Act. Upon the effective date of this action, the implementation and

enforcement authority of all existing Section 112 standards pertaining

to non-part 70 sources, excluding Section 112(r) and radionuclide

emissions standards, which have been incorporated by reference into the

State code of regulations are delegated to the State of Michigan

(specifically 40 CFR Part 63 Subpart M, Dry Cleaning, and 40 CFR Part

63 Subpart T, Halogenated Solvent Cleaning). As for the existing

Section 112 standards which have not yet been incorporated by reference

into the State code of regulations, the implementation authority of

these standards are delegated to the State of Michigan upon the

effective date of this action, and the enforcement authority will be

delegated according to the procedures in the MOA. Future delegation of

the Section 112 standards to the State will occur according to the

procedures outlined in the MOA upon EPA's promulgation of the standard.

Effective immediately, all notifications, reports and other

correspondence required under Section 112 standards should be sent to

the State of Michigan rather than to the EPA, Region 5, in Chicago.

Affected sources should send this information to the supervisor of the

appropriate District office. For sources located in Wayne County, send

this information also to the Director of Compliance and Enforcement of

the Wayne County Department of the Environment. For information on the

District offices or Wayne County office, contact: Michigan Department

of Environmental Quality, Air Quality Division, 106 West Allegan

Street, P.O. Box 30260, Lansing, Michigan 48909-7760, 517-373-7023.

EPA is publishing this action without prior proposal because EPA

views this as a noncontroversial revision and anticipates no adverse

comments. However, in a separate document in this Federal Register

publication, EPA is proposing to approve the State Plan should adverse

or critical written comments be filed. This action will be effective

without further notice unless EPA receives relevant adverse written

comment by December 23, 1998. Should EPA receive such comments, it will

publish a final rule informing the public that this action will not

take effect. Any parties interested in commenting on this action should

do so at this time. If no such comments are received, the public is

advised that this action will be effective on January 22, 1999.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any State Plan. Each request for revision to a State Plan

shall be considered separately in light of specific technical,

economic, and environmental factors and in relation to relevant

statutory and regulatory requirements.

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IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order 12866 review.

B. Executive Order 13045

This final rule is not subject to Executive Order 13045, entitled

``Protection of Children from Environmental Health Risks and Safety

Risks,'' because it is not an ``economically significant'' action under

Executive Order 12866.

C. Executive Order 12875: Enhancing the Intergovernmental Partnership

Under Executive Order 12875 (E.O. 12875), EPA may not issue a

regulation that is not required by statute and that creates a mandate

upon a State, local or tribal government, unless the Federal government

provides the funds necessary to pay the direct compliance costs

incurred by those governments, or EPA consults with those governments.

If EPA complies by consulting, E.O. 12875 requires EPA to provide to

the Office of Management and Budget a description of the extent of

EPA's prior consultation with representatives of affected State, local

and tribal governments, the nature of their concerns, copies of any

written communications from the governments, and a statement supporting

the need to issue the regulation. In addition, E.O. 12875 requires EPA

to develop an effective process permitting elected officials and other

representatives of State, local and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. This rule delegates the Federal air toxics program to the

MDEQ at MDEQ's request. Accordingly the requirements of section 1(a)of

E.O. 12875 do not apply to this rule.

D. Executive Order 13084: Consultation and Coordination With Indian

Tribal Governments

Under Executive Order 13084 (E.O. 13084), EPA may not issue a

regulation that is not required by statute, that significantly or

uniquely affects the communities of Indian tribal governments, and that

imposes substantial direct compliance costs on those communities,

unless the Federal government provides the funds necessary to pay the

direct compliance costs incurred by the tribal governments, or EPA

consults with those governments. If EPA complies by consulting, E.O.

13084 requires EPA to provide to the Office of Management and Budget,

in a separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This rule delegates the

Federal air toxics program to the MDEQ at MDEQ's request. It imposes no

new requirements. Accordingly the requirements of section 3(b) of E.O.

13084 do not apply to this rule.

E. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This direct final rule will not have a significant

impact on a substantial number of small entities because Straight

delegation of the Section 112 standards unchanged from the Federal

standards does not create any new requirements, but simply allows the

State to administer requirements that have been or will be separately

promulgated. Therefore, because this delegation approval does not

impose any new requirements, I certify that it does not have a

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

nature of the Federal-State relationship under the CAA preparation of a

flexibility analysis would constitute Federal inquiry into the economic

reasonableness of a State action. The CAA forbids EPA to base its

actions concerning State plans on such grounds. Union Electric Co., v.

U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must undertake various actions

in association with any proposed or final rule that includes a Federal

mandate that may result in estimated costs to State, local, or tribal

governments in the aggregate; or to the private sector, of $100 million

or more. This Federal action merely approves delegation to a State of

pre-existing requirements under Federal law, and imposes no new

requirements on the private sector. The cost to the state, local, or

tribal government, of implementing this program will be less than $100

million. The State also voluntarily requested this delegation under

Section 112(l) for the purpose of implementing and enforcing the air

toxics program with respect to sources not covered by Part 70. Since

the State was not required by law to seek delegation, this Federal

action does not impose a mandate on the State.

G. Submission to Congress and the Comptroller General

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 the publication of the rule in the Federal Register. This rule is

not a ``major rule'' as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

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 January 22, 1999. 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 63

Environmental protection, Administrative practice and procedure,

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Air pollution control, Hazardous substances, Intergovernmental

relations.

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

Dated: August 26, 1998.

Gail Ginsberg,

Acting Regional Administrator, Region V.

[FR Doc. 98-31076 Filed 11-20-98; 8:45 am]

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