Federal Register / Vol. 83, No. 170 / Friday, August 31, 2018 / Rules and Regulations 44485 

[FR Doc. 2018–18854 Filed 8–30–18; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2007–1092; FRL–9982– 

97—Region 5] 

Air Plan Approval; Michigan; Minor 

New Source Review 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving certain 

changes to the Michigan State 

Implementation Plan (SIP). This action 

relates to changes to the Permit To 

Install (PTI) requirements of Part 2 of 

the Michigan Administrative Code (Part 

2 Rules). 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. 

DATES: This final rule is effective on 

October 1, 2018. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2007–1092. All 

documents in the docket are listed on 

the www.regulations.gov website. 

Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either through 

www.regulations.gov or at the 

Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone Rachel 

Rineheart, Environmental Engineer, at 

(312) 886–7017 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Rachel Rineheart, Environmental 

Engineer, Air Permits Section, Air 

Programs Branch (AR–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–7017, 

rineheart.rachel@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This supplementary information 

section is arranged as follows: 

I. What is the background of these SIP 

submissions? 

II. What is our response to comments 

received on the proposed rulemaking? 

III. What action is EPA taking? 

IV. Incorporation by Reference. 

V. Statutory and Executive Order Reviews. 

I. What is the background of these SIP 

submissions? 

A. What state submissions does this 

rulemaking address? 

The State of Michigan’s minor source 

PTI rules are contained in Part 2 of the 

Michigan Administrative Code. EPA last 

approved changes to the Part 2 rules in 

1982. The Michigan Department of 

Environmental Quality (MDEQ) has 

submitted several Part 2 revision 

packages since that time; however, EPA 

has not taken a final action on any of the 

submittals. The following table provides 

a summary of the various state 

submittals with the most recent version 

of each section of the Michigan Rule 

highlighted in bold. 

Submittal State effective 

date Submittal date Rules submitted 336.1xxx 

1 ................................ 04/20/1989 11/12/1993 240, 241. 

04/17/1992 ........................ 201, 283. 

11/18/1993 ........................ 278, 279, 280, 281, 282, 284, 285, 286, 287, 288, 289, 290. 

2 ................................ 07/26/1995 05/16/1996 201, 205, 208 (rescinded), 209, 219, 278, 279, 280, 281, 282, 283, 284, 285, 286, 

287, 288, 289, 290. 

3 ................................ 12/12/1996 04/03/1998 201a, 205. 

4 ................................ 06/13/1997 08/20/1998 278, 283, 284, 285, 286, 287, 290. 

5 ................................ 07/01/2003 09/02/2003 201, 201a, 202, 203, 204, 205, 206, 207, 212, 216, 219, 240, 241, 278, 278a, 279 

(rescinded), 281, 282, 284, 285, 287, 289, 299. 

6 ................................ 06/20/2008 03/24/2009 201, 202, 205, 207, 219, 240, 241, 278, 281, 284, 285, 288, 299. 

7 ................................ 12/20/2016 2/21/2017 278a, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290. 

EPA published a proposed approval 

of all changes, except the public notice 

procedures in Michigan R. 336.1205, on 

August 15, 2017 (82 FR 38651), with a 

30-day public comment period. EPA 

reopened the comment period twice due 

to missing files in the docket on 

regulations.gov. The comment period 

was reopened for an additional 30 days 

on November 2, 2017 (82 FR 50853), 

and an additional 15 days on January 9, 

2018 (83 FR 1003). EPA is taking no 

action on Michigan R. 336.1205 at this 

time. 

B. Why did the state make these SIP 

submissions? 

Section 110(a)(2)(C) of Clean Air Act 

(the Act) requires that each SIP include 

a program to provide for the regulation 

of construction and modification of 

stationary sources as necessary to assure 

that the National Ambient Air Quality 

Standards (NAAQS) are achieved. 

Specific elements for an approvable 

construction permitting plan are found 

in the implementing regulations at 40 

CFR part 51, subpart I—Review of New 

Sources and Modifications. 

Requirements relevant to minor 

construction programs are 40 CFR 

51.160–51.164. EPA regulations have 

few specific criteria for state minor new 

source review (NSR) programs. 

Generally, state programs must set forth 

legally enforceable procedures that 

allow the state to prevent any planned 

construction activity that would result 

in a violation of the state’s SIP or a 

national standard. 

The revisions to Part 2 submitted by 

MDEQ are largely provisions that 

strengthen the already approved minor 

NSR program adding greater detail with 

respect to applicability, required 

application material, and processing of 

applications; however, the revisions do 

include changes to waiver provisions 


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and the addition of several categories of 

exemptions from the requirement to 

obtain a PTI. 

II. What is our response to comments 

received on the proposed rulemaking? 

EPA received several comments 

during the public comment process. 

EPA received four anonymous 

comments that were unrelated to the 

action, and we will not be addressing 

those comments. EPA received adverse 

comment on the proposed approval 

from the Sierra Club, the Great Lakes 

Environmental Law Center, the Center 

for Biological Diversity, and the 

Environmental Law & Policy Center. 

EPA received a letter from the 

Environmental Law & Policy Center 

dated September 14, 2017, and a letter 

from the Sierra Club, Great Lakes 

Environmental Law Center, and the 

Center for Biological Diversity dated 

September 14, 2017, during the original 

public comment period. Sierra Club and 

the Great Lakes Environmental Law 

Center provided additional comment 

during the first reopening in a letter 

dated December 4, 2017. Sierra Club, 

the Great Lakes Environmental Law 

Center, and the Center for Biological 

Diversity provided additional comments 

during the second reopening in a letter 

dated January 24, 2018. A summary of 

the comments received and EPA’s 

response follow. 

A. Michigan R. 336.1201a General PTIs 

Michigan R. 336.1201a gives the 

MDEQ the ability to create general PTIs. 

A general permit is a permit document 

that contains standardized requirements 

that multiple stationary sources can use. 

It may cover categories of emission units 

or stationary sources that are similar in 

nature. The purpose of a general permit 

is to ensure the protection of air quality 

while simplifying the permit process for 

similar minor sources. General permits 

allow the permitting authority to notify 

the public through one notice that it 

intends to apply those requirements to 

any eligible source that seeks coverage 

under the permit in the future. This 

minimizes the burden on the reviewing 

authority’s resources by eliminating the 

need to issue separate permits for each 

individual minor source within the 

source type or category covered by the 

general permit. Use of a general permit 

also decreases the time required for an 

individual minor source to obtain a 

preconstruction permit because the 

application process is standardized. 

Michigan R. 336.1201a allows MDEQ 

to issue general PTIs for categories of 

similar emission units or stationary 

sources. The rule requires the general 

permits to contain limitations as 

necessary to assure compliance with 

applicable requirements, and that 

limitations on potential to emit be 

enforceable as a practical matter. The 

general permits must also identify the 

criteria by which a stationary source or 

emission unit may qualify for the 

permit. Finally, the rule requires MDEQ 

to provide for public notice of the 

general permit. 

Comment 1: While EPA’s Title V 

permitting rules provide for issuance of 

general operating permits, the concept 

of a general construction permit is not 

consistent with the requirements of 

Section 110(a)(2)(C) of the Act or 40 

CFR 51.160–51.164. 

EPA Response: EPA disagrees that the 

lack of a specific allowance for general 

permits under the permit program 

requirements of section 110(a)(2)(C) of 

the Act precludes the use of general 

permits for construction as there is no 

provision that specifically disallows 

them. In fact, the language in the Act 

concerning non-major activities simply 

requires ‘‘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.’’ The Act and the 

implementing regulations at 40 CFR 

51.160 are structured to allow the 

implementing authority flexibility in 

designing a minor source program that 

meets the authority’s individual needs 

while assuring protection of ambient air. 

EPA has a well-established, 

longstanding position that the use of 

general permits for construction of 

minor sources is appropriate under the 

Act. The January 25, 1995, 

memorandum ‘‘Options for Limiting 

Potential to Emit (PTE) of a Stationary 

Source Under Section 112 and Title V 

of the Clean Air Act,’’ the January 25, 

1995 memorandum, ‘‘Guidance an 

Enforceability Requirements for 

Limiting Potential to Emit through SIP 

and § 112 Rules,’’ and the April 14, 

1998, memorandum, ‘‘Potential to Emit 

(PTE) Guidance for Specific Source 

Categories,’’ all endorse the use of a 

general permit program approved into 

the SIP pursuant to section 110(a)(2)(C) 

of the Act as a means of effectively 

establishing limitations on the potential 

to emit of stationary sources. EPA 

allows for the issuance of general 

permits to minor sources under its own 

Federal Minor NSR Program in Indian 

Country at 40 CFR 49.156. 

Comment 2: The Michigan Rules do 

not define ‘‘similar stationary sources or 

emissions units.’’ There is no 

requirement in the rules that, to be 

similar, source or emission units must 

have similar emissions and stack 

parameters. Sources with different stack 

parameters and emission rates, even 

though similar sources, could have 

significantly different impact on air 

pollutant concentrations. Furthermore, 

no definition of ‘‘similar source’’ can 

adequately address neighboring sources 

of air pollution which may cause 

ambient pollution concentrations at or 

near the levels of a NAAQS. 

EPA Response: We disagree that there 

is a need to define ‘‘similar stationary 

sources or emissions units’’ in this rule. 

The identified terms have their common 

meaning in the context of the rule. In 

the case of general permits, defining the 

scope of the stationary source and/or 

emissions units covered by a particular 

general permit should be done when 

establishing the terms of the general 

permit. All interested parties will have 

the opportunity to provide input on the 

appropriateness of the scope of a 

particular general permit during the 

public comment period for that permit. 

The appropriate time to comment is 

during the public comment period for a 

particular general permit. 

Comment 3: A general permit would 

not ensure that a specific new or 

modified source would be prohibited 

from construction if it would interfere 

with attainment or maintenance of the 

NAAQS or interfere with the control 

strategy. The impact of a source’s 

emissions on air pollutant 

concentrations is dependent on a 

myriad of factors including topography, 

other buildings in the vicinity, 

background pollutant concentrations, 

and neighboring sources of pollution as 

well as stack and plume characteristics. 

EPA Response: We disagree. Michigan 

R. 336.1207, which requires MDEQ to 

deny an application that would interfere 

with the attainment or maintenance of 

a NAAQS, would apply to any general 

permit issued by MDEQ. There is still 

an application process for any source 

wanting coverage under a general 

permit, and MDEQ does have the 

authority to deny coverage under a 

general permit to any applicant. The 

potential air quality impacts of a general 

permit should be considered during the 

development of each general permit. 

Concerns regarding the adequacy of 

permit terms or application 

requirements concerning potential 

impacts on air quality are more 

appropriately raised during the public 

comment period for each general permit 

developed by MDEQ. 

Comment 4: The concept of a general 

construction (or operating) permit is 

that one permit can be issued for a 

source type, and similar sources can 

request and be granted approval to 

construct and/or operate under that 


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permit without having to apply for a 

new construction permit, thereby 

avoiding all of the requirements that are 

part of the application process including 

public notice and opportunity for 

comment. 

EPA Response: A source must apply 

for coverage under a general permit, and 

each general permit must be made 

available for public comment. EPA does 

not agree that the general permitting 

process would allow a source to avoid 

any requirements of the application 

process. As noted above, EPA has a 

well-established position in support of 

general permits for construction and has 

determined that the notice and 

comment required in the establishment 

of each general permit meets the public 

notice requirements of 40 CFR 51.161. 

B. Michigan R. 336.1202 Waivers of 

Approval 

Michigan R. 336.1202 provides the 

MDEQ with the authority to grant a 

waiver from the requirement to obtain a 

permit prior to commencing 

construction in certain limited 

circumstances. The PSD provisions of 

the Act prohibit commencement of 

construction without first obtaining the 

required permit authorizing 

construction; however, the requirement 

only applies to major sources, and no 

such restriction is specified under the 

minor NSR program requirements set 

forth in 40 CFR 51.160. In addition, EPA 

has made determinations which further 

support that limited construction may 

begin before a permit is issued for minor 

sources. For example, EPA’s October 10, 

1978, memorandum from Edward E. 

Reich to Thomas W. Devine in Region 

1 discusses limited preconstruction 

activities allowed at a site with both 

PSD and non-PSD sources. This memo 

states that construction may begin on 

PSD-exempt projects before the permit 

is issued. EPA has established its 

position that limited waivers are 

acceptable for true minor sources in 

previous rulemaking. (See 68 FR 2217 

and 73 FR 12893.) As stated previously, 

the minor NSR provisions at 40 CFR 

51.160 require state programs to 

determine if activities would violate an 

applicable SIP or national standard and 

to prevent construction of an activity 

that would violate an applicable SIP 

provision or national standard. 

Michigan R 336.1202(1) requires an 

application for a waiver be submitted to 

MDEQ and requires MDEQ to act on the 

request within 30 days. Construction 

may not proceed unless the waiver is 

granted. The rule also indicates that the 

waiver does not guarantee approval of 

the required PTI and any construction 

activity would be at the owner/ 

operator’s risk. Michigan R. 336.1202(2) 

limits the waiver to minor construction 

activities (i.e., activities not subject to 

prevention of significant deterioration 

or nonattainment new source review 

requirements), activities that are not 

considered construction or 

reconstruction under a National 

Emission Standard for Hazardous Air 

Pollutants of 40 CFR part 63, and 

activities that are not considered 

construction or modification under a 

New Source Performance Standard of 40 

CFR part 61. It is also important to note 

that the approved Part 2 rules currently 

included in the Michigan SIP already 

have an approved waiver provision. The 

currently approved waiver provision is 

much broader in scope, and the changes 

that EPA is approving here narrow that 

scope bringing the MDEQ provisions in 

line with other state programs. 

Comment 1: The commenters object to 

EPA’s approval of waiver provisions in 

general and argue that all of EPA’s 

arguments for approval of waiver 

provisions are flawed and do not in any 

way justify approval. 

EPA Response: EPA has outlined its 

position on waivers for minor source 

construction in previous rulemakings, 

as noted above, and will not be 

revisiting this established policy in this 

rulemaking. EPA finds that Michigan R. 

336.1202 meets the criteria for approval 

outlined in those rulemakings. 

Michigan’s rule requires application for 

a waiver and requires MDEQ to act upon 

the application for a waiver within 30 

days. The waiver provision is limited to 

non-major construction activities and 

the applicant must show a delay in 

construction would result in hardship. 

Finally, the rule makes it clear that the 

source may not operate until such time 

a final permit is issued and that granting 

a waiver does not obligate MDEQ to 

issue a final permit. 

Comment 2: Michigan R. 336.1202 

conflicts with EPA regulations 

governing minor source review because 

it would allow a source to circumvent 

the public participation requirements 

until after a source or modification is 

constructed. 

EPA Response: EPA’s position on 

limited waiver provisions in minor NSR 

programs has already been established. 

As discussed above nothing in 40 CFR 

51.161 requires that the required public 

notice occur prior to the commencement 

of construction activities for minor 

sources. MDEQ must still adhere to the 

SIP approved public notice 

requirements when issuing a permit. 

Comment 3: The Michigan waiver 

provision conflicts with EPA’s 

regulations governing major source 

review because it could apply to 

modified major sources that would 

otherwise be subject to PSD or 

nonattainment NSR. Although the 

Michigan waiver provision states that it 

does not apply to ‘‘any activity’’ that is 

subject to major source permitting 

requirements, the definition of 

‘‘activity’’ under this rule is not 

consistent with the EPA’s aggregation 

policy. By defining ‘‘activity’’ as the 

‘‘concurrent and related installation, 

construction, relocation, or modification 

of any process or process equipment,’’ 

MDEQ’s definition is inconsistent with 

the much broader policy that EPA has 

laid out in several policy memos in 

deciding when projects should be 

aggregated. Importantly, EPA policy 

does not require that projects be 

concurrently constructed to justify two 

or more projects being related. There are 

also numerous other factors to take into 

account to determine if two or more 

projects are related. 

EPA Response: Neither the Act nor 

current EPA rules specifically addresses 

the basis upon which to aggregate 

changes for applicability purposes. 

Instead, EPA has developed its 

aggregation policy through statutory and 

regulatory interpretation and 

applicability determinations. Current 

EPA policy is generally guided by our 

analysis in memos such as the June 17, 

1993 ‘‘Applicability of New Source 

Review Circumvention Guidance to 3MMaplewood, Minnesota.’’ In this memo, 

EPA outlines criteria that a permitting 

authority might consider in determining 

which activities should be aggregated. 

The guidance suggests that a permitting 

authority should consider the timing of 

projects, whether or not changes are 

technically related or dependent upon 

one another, and any economic 

relationship between activities. EPA 

policy directs permitting authorities to 

evaluate the timing and relatedness of 

activities for aggregation. Since MDEQ 

has not defined either ‘‘concurrent’’ or 

‘‘related’’, we believe the language can 

be interpreted broadly enough to be 

consistent with EPA policy. 

Furthermore, the definition of activity 

here has no bearing on the definition of 

project under the state’s PSD and major 

non-attainment NSR program. 

Applicability for PSD is defined in 

Michigan’s Part 18 rules and 

applicability for major non-attainment 

NSR is defined in Michigan’s Part 19 

rules, and is independent of any 

applicability criteria established in Part 

2. If an activity is subject to the Part 18 

or Part 19 requirements either by itself 

or as part of a larger project, it would 

be excluded from use of the waiver 

provisions. 


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Comment 4: The waiver provision 

also conflicts with EPA regulations 

governing new major source review 

because it could apply to a source that 

ultimately requests limits on emissions 

to avoid major source or major 

modification permitting requirements. 

EPA Response: EPA disagrees with 

the commenter’s conclusions. The rule 

prohibits use of the waiver by sources 

subject to the state’s major construction 

permitting programs. Any source that 

intends to take synthetic minor 

restrictions to avoid major source 

permitting requirements is major until a 

permit with enforceable restrictions is 

issued, and would be disqualified from 

the use of the waiver. MDEQ has made 

their position on this issue clear as well. 

In a public hearing report dated 

February 20, 2003, which is included in 

attachment F of the September 2003 

submittal, MDEQ outlines how their 

rules would prevent the use of 

restrictions that are not part of an 

enforceable permit or order, thus 

limiting the waiver to true minors. 

Comment 5: The Michigan waiver 

provision does not meet the 

requirements of the Act or 40 CFR 

51.160(a) because it does not require the 

source to submit its plans and 

specifications for approval before MDEQ 

must act on a request for a waiver. 

Michigan R. 336.1202 indicates that a 

source’s ‘‘pertinent plans and 

specifications’’ can be submitted after a 

waiver is granted and such plans are 

only required ‘‘as soon as is reasonably 

practical.’’ Furthermore, MDEQ’s rule is 

not comparable to previously approved 

waiver provisions in Idaho and 

Wisconsin because both programs 

require a complete application for 

construction with an application for a 

waiver. 

EPA Response: While the approvals in 

Idaho and Wisconsin note the submittal 

of a complete application for 

construction as additional safeguards, 

EPA disagrees that the submittal of a 

complete application for construction 

was established as a criterion for 

approval. Michigan R. 336.1202 does 

require application to MDEQ for a 

waiver. EPA does not agree that a 

complete application for construction is 

necessary, and the commenter has not 

provided evidence that MDEQ does not 

require adequate information with the 

waiver application. A check of MDEQ 

policy does in fact show that a complete 

application is required with an 

application for a waiver. Section 9–2 of 

MDEQ’s ‘‘Permit to Install Workbook’’ 

states that a PTI application must be 

submitted ‘‘before, or with, a 

construction waiver request.’’ 

Comment 6: Michigan R. 336.1202 

conflicts with the Act and EPA 

regulations governing minor source 

review because it essentially amounts to 

a director’s discretion provision to 

provide new exemptions from the 

substantive requirements of the permit 

to install requirements. That is because 

the source does not have to submit 

relevant information about the new or 

modified source to determine if it would 

interfere with the control strategy or 

cause or contribute to a NAAQS 

violation until after construction has 

begun, the new or modified source’s 

proposed location and impact on air 

quality would not have to be disclosed 

to the public until after construction has 

begun, and if the source was planning 

on requesting enforceable emission 

limitations to avoid major source 

permitting requirements, no review by 

the MDEQ, the public, or EPA would be 

done until after construction has begun. 

EPA Response: As discussed above, a 

complete application for a PTI is 

required with an application for a 

waiver. Because any source seeking 

synthetic minor or netting limitations is 

considered major until such time as a 

permit with practically enforceable 

limitations is issued, the rule would 

only allow a waiver for true minor 

actions. Finally, the rule prohibits 

operation until a final permit is issued, 

and that permit must meet the public 

notice procedures of the approved SIP. 

C. Michigan R. 336.1209 Use of Old 

Permits To Limit Potential to Emit 

Michigan R. 336.1209 allows a source 

to rely on a permit to install or a permit 

to operate issued by MDEQ before May 

6, 1980 (prior to approval in the SIP), or 

issued by Wayne county before a 

delegation of authority to Wayne county 

pursuant to state statute for the 

purposes of applicability to Michigan R. 

336.1210. Michigan R. 336.1210 is the 

state’s Title V operating permit program. 

Comment 1: This rule could allow a 

source to avoid the state’s Title V 

requirements by relying on emission 

limits in permits that the state or Wayne 

County no longer have the ability to 

enforce due to the permit being based 

on rules that are extremely out of date 

or no longer on the books. 

EPA Response: Changes to rules do 

not invalidate permits already issued. If 

the permits issued were non-expiring, 

they are still legally binding regardless 

of changes to the state’s permitting 

rules. EPA sees this provision as 

reaffirming the state’s authority to 

enforce these permits. 

Comment 2: The provisions of 

Michigan Rule 336.1209 that allow 

sources to rely on pre-1980 permits and 

permit limits may result in permits that 

are inconsistent with EPA’s criteria for 

‘‘practically enforceable’’ limits. Those 

criteria include the requirement that the 

permit expressing the emission limits 

must identify the methods for 

determining compliance with the limit 

and require monitoring, recordkeeping 

and reporting. The commenter notes 

that neither Michigan R. 336.1209 or 

Michigan R. 336.1205(1)(a) specifically 

require that the permit to be used to 

avoid Title V requirements include 

these compliance assurance 

requirements. 

EPA Response: Michigan R. 336.1209 

requires that the permit contain 

production and/or operational limits 

consistent with the requirements of 

Michigan R. 336.1205(1)(a). Michigan R. 

336.1205(1)(a) requires that limits be 

enforceable as a practical matter. While 

Michigan R. 336.1205(1)(a) does provide 

some detail regarding the types of limits 

that could be used and the timeframes 

for the limits, EPA does not see the 

language in this rule as defining 

‘‘enforceable as a practical matter’’ and 

sees nothing in the language that would 

be inconsistent with EPA policy on 

what makes a limit enforceable as a 

practical matter. Furthermore, the 

commenter has not described how 

avoiding an operating permit 

requirement would impact the state’s 

preconstruction permitting program. 

Comment 3: EPA has established 

certain criteria that need to be met in 

order to establish enforceable limits on 

potential to emit, which include among 

other things EPA and public notice and 

the opportunity to comment on a 

potential to emit limit. (See 1/25/95 

EPA Memo with Subject ‘‘Options for 

Limiting Potential to Emit (PTE) of a 

Stationary Source Under Section 112 

and Title V of the Clean Air Act (Act)’’ 

at 3–4.) 

EPA Response: The reference cited by 

the commenters is a discussion 

regarding the criteria for SIP approval of 

a federally enforceable state operating 

permit program (FESOP). As noted in 

the referenced memo, a criterion for 

approval of a FESOP program is that 

permits ‘‘be issued in a process that 

provides for review and an opportunity 

for comment by the public and by EPA.’’ 

Michigan R. 336.1209 is not a FESOP 

program, and the criteria for FESOP 

approval is not an appropriate measure 

for this rule. 

Comment 4: To a large extent, EPA’s 

criteria for creating practically 

enforceable emission limits to avoid 

major source permitting was developed 

pursuant to the 1987 Court decision 

United States v. Louisiana Pacific, 682 

F. Supp. 112(D. Colo. 1987), 682 F. 


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Supp. 1141 (D. Colo. 1988). By allowing 

Michigan sources to rely on permits 

issued well before this Court decision 

and before May 6, 1980, it seems highly 

doubtful that the Michigan or Wayne 

County permits upon which a source 

might rely to avoid Title V permitting 

meet EPA’s more recent criteria for 

creating practically enforceable limits 

on potential to emit. Until it is clear that 

EPA has undertaken a review of these 

older programs and verified as such, as 

well as verified that the state or Wayne 

County still has authority to enforce 

such permits, EPA must not approve 

Michigan R. 336.1209 as part of the 

Michigan SIP. 

EPA Response: The commenter seems 

to suggest that any limit predating the 

United States v. Louisiana Pacific 

decision and EPA’s subsequent 

guidance could not be enforceable as a 

practical matter. Minor permit programs 

had been a part of state SIPs for nearly 

a decade before the decision and EPA’s 

subsequent guidance. The fact that the 

EPA and the court found the Louisiana 

Pacific permit deficient is not evidence 

that all prior permits were somehow 

deficient. The rule requires that the old 

permit contain limits that are 

enforceable as a practical matter and 

that the permittee continue to maintain 

records, conduct monitoring, and 

submit reports to show that the source 

is in compliance with those terms. 

D. Michigan R. 336.1278 Exclusion 

From Exemption and Michigan R. 

336.1278a Scope of Permit Exemptions 

Michigan R. 336.1278 and 336.1278a 

work together to define the scope of the 

permit exemptions in Michigan R. 

336.1280 through 336.1290 and to 

ensure that sources choosing to forgo a 

case-by-case permitting decision collect 

and maintain data necessary to 

demonstrate that any construction 

related activities qualified for the 

exemptions. Michigan R. 336.1278 

excludes major activities subject to 

either the PSD or major non-attainment 

programs from using the exemptions. 

This rule also affirms that the 

exemptions only apply to the 

requirement to obtain a construction 

permit and that all other applicable 

requirements including existing permit 

limitations must be met. Michigan R. 

336.1278a requires sources using an 

exemption to maintain records that 

demonstrate the applicability of the 

exemption including information such 

as a description of equipment installed, 

date of installation, identification of the 

specific exemption being applied and an 

analysis that the exemption exclusions 

in Michigan R. 336.1278 do not apply. 

Comment 1: Michigan’s PTI 

regulations are an umbrella permit 

program that apply to new major 

sources and major modifications as well 

as minor sources and modifications. 

Many of the PTI exemptions, 

particularly the broadly-worded 

exemptions in Michigan R. 336.1285, 

could allow otherwise major 

modifications to escape review, despite 

the limitations in Michigan R. 336.1278 

and 336.1278a. Thus, EPA is not 

justified in relying on Michigan R. 

336.1278 and R. 336.1278a for assurance 

that all of the PTI exemptions in 

Michigan R. 336.1280 through Michigan 

R. 336.1290 will not allow a project to 

escape major source permitting. 

EPA Response: EPA agrees with the 

commenter that the provisions in Part 2 

apply to both minor sources and major 

modifications. EPA disagrees that the 

PTI regulations exemption would allow 

major modifications to escape review. 

The commenter is correct to a certain 

extent that the provisions in Part 2 

apply to both major and minor 

construction activities. For example, the 

Part 2 rules do address the general 

requirement to obtain a permit, public 

notice procedures, and grounds for 

permit denial of all construction permit 

programs. However, the Part 2 rules do 

not define the applicability criteria for 

the state’s PSD and major nonattainment NSR programs. The state’s 

PSD rules in Part 18 and major nonattainment NSR rules in Part 19 define 

the specific requirements, including 

applicability, of those major source 

construction permitting programs. 

Michigan R. 336.1278 prohibits the use 

of the exemptions if the activity would 

be subject to PSD or major nonattainment permitting requirements. 

The applicability procedures in Part 18 

and Part 19 are independently 

applicable, and nothing in Part 2 of the 

Michigan Rules would alter them; 

therefore, EPA finds that the exclusion 

in Michigan R. 336.1278 is adequate. 

Comment 2: The specific provisions 

of Michigan R. 336.1278 fail to ensure 

that projects that should be required to 

obtain a PSD or major non-attainment 

permit will not be exempt from a PTI 

pursuant to the exemptions in Michigan 

R. 336.1280 through R. 336.1290 

because Michigan R. 336.1278(1) does 

not use the same terms that are used in 

the PSD or non-attainment NSR 

regulations for identifying what changes 

may trigger NSR review. Specifically, 

the PSD and nonattainment NSR rules 

use the term ‘‘project’’ which is defined 

as ‘‘a physical change or change in the 

method of operation of an existing major 

stationary source’’ and Michigan R. 

336.1278 uses the term ‘‘activity.’’ 

Michigan R. 336.1278(1)(b) defines 

‘‘activity’’ as ‘‘the concurrent and 

related installation, construction, 

reconstruction, relocation, or 

modification of any process or process 

equipment.’’ It does not appear that this 

definition encompasses changes in the 

method of operation of any process or 

process equipment. The commenter also 

asserts that the definition of ‘‘activity’’ 

is inconsistent with EPA’s aggregation 

policy because EPA policy does not 

require that changes be concurrent. 

EPA Response: The MDEQ definition 

of ‘‘activity’’ includes ‘‘modification of 

any process or process equipment.’’ 

MDEQ defines ‘‘modify’’ in Michigan R. 

336.1113(e). The definition of ‘‘modify’’ 

includes physical changes in, or 

changes in the method of operation of 

an existing process or process 

equipment. MDEQ has not excluded 

changes in the method of operation as 

suggested by the commenter. The 

commenter made a similar comment 

with respect to aggregation in their 

comments on the waiver provision at 

Michigan R. 336.1202. See EPA’s 

response to Comment 3 in Section II.B 

of this action. 

Comment 3: While Michigan R. 

336.1278a(1)(c) does require an analysis 

demonstrating that Michigan R. 

336.1278 does not apply to the process 

or process equipment, the rule does not 

clearly require such analysis for 

modification to process equipment. 

EPA Response: EPA disagrees with 

this comment. It is clear that the 

‘‘exempt process or exempt process 

equipment’’ in Michigan R. 336.1278a is 

referencing the exempt activity as 

defined by each of the categories of 

exemptions in Michigan R. 336.1280 

through 336.1290. If the exempt process 

or exempt process equipment as defined 

by a specific exemption would include 

modifications to existing equipment, the 

facility applying the exemption would 

be required to maintain an analysis that 

the exemption applies to the 

modification of equipment. 

Comment 4: Michigan R. 

336.1278a(1)(c) does not specify how 

the analysis that Michigan R. 336.1278 

does not apply should be done. Given 

that the language and terms of Michigan 

R. 336.1278(1) are not consistent with 

the terms and applicability procedures 

of the major NSR rules, it is imperative 

that the recordkeeping rule at Michigan 

R. 336.1278a(1)(c) specify the 

applicability procedures in the major 

PSD and non-attainment NSR rules. 

Given the complex procedures, how 

they differ for new emissions units 

versus existing emissions units, and the 

fact that Michigan R. 336.1278(1) uses 

different terminology than the major 


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source permitting rules, this is a major 

omission. 

EPA Response: As explained 

previously, nothing in the Part 2 rules 

impacts applicability under the state’s 

major source permitting rules in Part 18 

and Part 19. EPA believes that the 

expectation of Michigan R. 

336.1278a(1)(c) is clear in that it 

requires a source applying any of the 

exemptions to maintain an analysis and 

records that support that (1) the project 

was not major pursuant to the 

requirements of the approved Part 18 or 

Part 19 programs, and (2) that the 

process or process equipment in 

question, meets the applicability criteria 

of whichever specific exemption they 

are claiming as defined by that 

exemption. Michigan very clearly states 

this in their May 15, 2012, letter from 

Dan Wyant to Susan Hedman. In its 

explanation of how these rules work to 

limit the scope of the exemptions, 

MDEQ states ‘‘A source must, therefore, 

first determine if it is excluded from 

exemption under Rule 278 before 

evaluating whether it is eligible for one 

of the specific exemptions in Rules 280 

through 290.’’ In other words, major 

source permitting applicability must be 

determined before consideration of the 

Part 2 exemptions. 

Comment 5: Michigan R. 336.1278a 

does not clearly require an analysis 

demonstrating that the specific 

exemption being used applies to the 

activity. Michigan R. 336.1278a must 

require an analysis demonstrating the 

applicability of an exemption, not just a 

description of the exempt process and 

an identification of the exemption being 

applied as suggested by Michigan R. 

336.1278a(1)(a) and (b). 

EPA Response: Michigan R. 

336.1278a(1) states ‘‘To be eligible for a 

specific exemption listed in R 336.1280 

to R 336.1291, any owner or operator of 

an exempt process or exempt process 

equipment must be able to provide 

information demonstrating the 

applicability of the exemption.’’ The 

language in Michigan R. 336.1278a(1)(a) 

and (b) are examples of what that 

information might be and not an allinclusive list of required information. 

EPA believes that the intent of the rule 

is clear in that a source opting to use an 

exemption must keep any data required 

to demonstrate applicability of an 

exemption. The specifics of the 

necessary data are determined by each 

exempt category. If the exemption is 

based on size or capacity of a unit, the 

source must keep data on the size of the 

emission unit. If the exemption is based 

on the type of activity and associated 

emissions, the source would need to 

maintain records describing the exact 

nature of the change and an analysis of 

the resulting change in emissions. EPA 

does not agree that further clarification 

in Michigan R. 336.1278a is necessary. 

Comment 6: The recordkeeping 

requirements of Michigan R. 336.1278a 

are not sufficient to ensure that 

activities will not escape major NSR 

permitting and are not adequate to 

ensure lawful implementation of all the 

permit exemptions. The rule does not 

clearly require the preparation of a 

demonstration at the time of the 

exemption. The rule does not clearly 

require that any demonstration be 

prepared and retained, instead it 

appears that it could be prepared once 

MDEQ requests it. Finally, the 

commenter objects to the rule only 

requiring submittal of records upon 

request by MDEQ arguing that the state 

will not be able to ensure proper 

implementation without upfront 

approval of the use of the exemptions by 

the state. 

EPA Response: The fact that the 

Michigan R. 336.1278a(2) has set a 

deadline for responding to a written 

request by the state does not equate to 

a requirement for no records until such 

time as the state asks. The first 

requirement of every exemption is ‘‘This 

rule does not apply if prohibited by R 

336.1278 and unless the requirements of 

R 336.1278a have been met.’’ Because 

Michigan R. 336.1278a(1) requires that 

‘‘to be eligible’’ for an exemption, the 

owner/operator of a source must be able 

to provide the information in Michigan 

R. 336.1278a(1) and each individual 

exemption requires that those rules have 

been met, the clear intent is that the 

information demonstrating the 

applicability of the exemption be 

developed before the change and 

records kept immediately upon 

implementation. Finally, the commenter 

seems to suggest that only a requirement 

for upfront permitting authority 

approval is enforceable. 40 CFR 

51.160(e) requires the state’s procedures 

to ‘‘identify types and sizes of facilities, 

buildings, structures, or installations 

which will be subject to review.’’ The 

application requirements of 40 CFR 

51.160(c) only apply to those activities 

subject to review. If the state had 

established blanket tonnage thresholds, 

we would not expect that projects under 

those thresholds would require a notice 

to the permitting authority and that the 

permitting authority would affirm that 

those projects are below the threshold. 

MDEQ has defined the types and sizes 

of facilities subject to review—any 

construction activity not listed in the 

categories of exemptions. Nothing in the 

Act or 40 CFR 51.160 would require 

notice or application from a source not 

subject to review. With respect to 

enforceability, like tonnage thresholds, 

the exemptions are enforced through 

periodic inspection of facilities. 

E. Michigan R. 336.1280–R. 336.1290 

PTI Exemptions 

Michigan R. 336.1280–R. 336.1290 

define the specific categories of 

exemptions. 

1. General comments on Michigan PTI 

exemptions and MDEQ and EPA 

analysis of exemptions 

Comment 1: In the November 9, 1999, 

proposed disapproval, EPA stated the 

state ‘‘must demonstrate why these 

sources need not be subject to review in 

accordance with Alabama Power de 

minimis or administrative necessity 

criteria.’’ EPA indicated such a 

demonstration would likely include ‘‘(1) 

an analysis of the types and quantities 

of emissions from exempted sources, 

and (2) an analysis which shows that 

exempting such facilities from 

permitting review will not interfere with 

maintenance of the NAAQS or 

applicable control strategy, and 

otherwise fulfills the purposes of the 

minor NSR regulations.’’ With respect to 

assuring that this SIP relaxation won’t 

interfere with attainment or 

maintenance of the NAAQS or 

otherwise fulfill the requirements for 

minor new source review, EPA is 

relying on MDEQ’s submittals from 

2003 and 2017 to show that the SIP 

revision won’t interfere with attainment 

or maintenance of the NAAQS. In those 

submittals, MDEQ provided example 

emission estimates for a select set of 

exemptions but not for all of the 

exemptions in Michigan R. 336.1280– 

336.1290. 

EPA Response: In our review of the 

2003 and 2017 submittals, EPA did not 

find any new exemption that was not 

sufficiently addressed by MDEQ to 

demonstrate non-interference. The 

commenters have not provided any 

specific examples. We think it is also 

important to note that in 1999 EPA did 

not conclude that any of the new 

exemptions were in fact a relaxation of 

the existing SIP in the proposed 

disapproval. EPA’s finding was that 

MDEQ had failed to provide the 

required analysis addressing the effect 

of the changes on the current SIP. 

Comment 2: MDEQ did not document 

the basis for its emission factors used for 

its emission estimates, and it is not clear 

that MDEQ has used realistic worst case 

emission factors. 

EPA Response: The commenters did 

not provide any specific examples of 

undocumented emission factors. In our 

review of the emission estimates 


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provided, MDEQ has used emission 

factors from AP–42 or other EPA 

documents, manufacturer’s data, stack 

testing, information from past state 

permitting actions, data from the 

Michigan Air Emission Reporting 

System, mass balance, or some 

combination of these sources to estimate 

emissions. The data used is clearly 

documented by MDEQ for each 

estimate. There are a few exemptions 

that do not result in emissions of any 

criteria pollutant or any pollutant at all. 

In those circumstances, MDEQ has 

provided an explanation of why those 

processes would not result in emissions 

of a pollutant regulated under section 

110 of the Act. For example, Michigan 

R. 336.1285(2)(ii) exempts ‘‘fuel cells 

that use phosphoric acid, molten 

carbonate, proton exchange membrane, 

or solid oxide or equivalent 

technologies.’’ In their analysis, MDEQ 

does not provide an emission 

calculation, but provides an explanation 

for why no emissions of criteria 

pollutants are expected from this 

technology. EPA finds that MDEQ has 

used appropriate sources for emission 

factors and that the commenters have 

provided no evidence supporting their 

claims. 

Comment 3: EPA’s proposed approval 

of these exemptions fail to fulfill the 

purpose of the minor NSR regulations. 

The December 31, 2002, major source 

permitting rule revisions significantly 

revised and limited applicability to 

major source permitting for 

modifications at major sources. In 

justifying that rulemaking, EPA cited to 

state’s minor NSR rules as providing the 

needed oversight of modifications at 

existing major source in the cases where 

modifications at major sources could 

more readily be considered minor 

modifications. For example, EPA stated 

in the preamble to the 2002 rules that 

it anticipated a ‘‘large majority of the 

projects that are not major modifications 

may nonetheless be required to undergo 

a permit action through States’ minor 

NSR permit programs’’ and stated that 

such programs could provide an 

opportunity to ensure that the 

permitting authority agrees with a 

source’s emission projections. 

EPA Response: EPA disagrees that the 

MDEQ minor NSR permitting program 

will not address ‘‘a large majority of the 

projects that are not major 

modifications.’’ In the 2002 rulemaking, 

EPA did not state that every change that 

was no longer subject to the major 

source permitting requirements due to 

NSR Reform would be picked up by the 

state minor NSR programs, and 

statements in the preamble to NSR 

Reform are not evidence that the 

Michigan minor NSR program is not 

part of a program serving the intended 

purpose of section 110(a)(2)(C) of the 

Act to prevent construction that would 

interfere with attainment and 

maintenance of the NAAQS. MDEQ has 

been implementing these exemptions 

for over a decade and EPA is not aware 

of a NAAQS violation resulting from 

their use and the commenters have not 

presented any specific evidence that 

they could result in a violation. 

2. Rule Specific Comments 

a. Michigan R. 336.1285(2)(a) PTI 

Exemptions 

Michigan R. 336.1285(2)(a) exempts 

‘‘routine maintenance, parts 

replacement, or other repairs that are 

considered by the department to be 

minor, or relocation of process 

equipment within the same 

geographical site not involving any 

appreciable change in the quality, 

nature, quantity, or impact of the 

emission of an air contaminant 

therefrom.’’ The rule also includes 

examples of changes that would be 

covered by the exemption. These 

examples help to define the scope of 

changes MDEQ intended the exemption 

to cover. EPA specifically noted 

concerns with this exemption in a 

November 9, 1999, proposed 

disapproval. This exemption is part of 

the approved SIP. Michigan had made 

some fairly minor changes such as 

changing the word ‘‘commission’’ to 

‘‘Department.’’ The only substantive 

change was the addition of the word 

‘‘routine.’’ Because it might be 

interpreted as defining ‘‘routine 

maintenance, repair and replacement’’ 

under the major source permitting rules, 

EPA was concerned that the ambiguity 

might lead to sources inappropriately 

applying the exemption to major source 

permitting. There have been significant 

changes to the structure of MDEQ’s 

major source permitting rules since 

1999. At that time, PSD permits were 

issued pursuant to a delegation of 40 

CFR 52.21 through the general 

requirements of the Part 2 rules. The 

state’s major non-attainment permitting 

rules were also included in Part 2 at that 

time. MDEQ now has a SIP approved 

PSD program, and the major source 

permitting requirements have been 

moved to separate sections of the 

Michigan Administrative Code. The 

PSD rules are in Part 18 and the major 

NSR rules are in Part 19. EPA believes 

the previously listed concerns are 

effectively addressed by the 

requirements of Michigan R. 336.1278 

and 336.1278a in conjunction with the 

move of major source applicability 

criteria to separate rule sections. 

Comment 1: The terms ‘‘minor’’ and 

‘‘appreciable’’ are vague, undefined 

terms that are subject to varying 

interpretations. Given that the facilities 

will be making the determinations of 

whether an activity can be exempt 

under Michigan R. 336.1285(2)(a) and 

not MDEQ, the likelihood of wide and 

varying interpretations of this provision 

are great, and thus the limitations of this 

exemption are unenforceable. The 

minor NSR provisions for SIPs at 40 

CFR 51.160(a) and (e) require the state 

to clearly define the sizes and types of 

sources subject to review and to do so 

through legally enforceable procedures, 

and MDEQ has not done so. 

EPA Response: EPA disagrees that the 

cited terms make the limitations 

unenforceable. We believe that the 

terms, in context, have their common 

meanings, and that MDEQ has 

satisfactorily described the intent of 

these rules. For example, the state’s 

interpretation of ‘‘appreciable’’ as stated 

in their May 15, 2012, letter is the 

common definition of the word, 

‘‘capable of being perceived or 

measured.’’ A change in emissions that 

is capable of being measured is actually 

a fairly restrictive limitation. EPA also 

believes that the state has developed 

adequate policy for their permitting 

program and exemptions to minimize 

the likelihood of misuse. More 

importantly, on page 11 of the 

document ‘‘Response to the United 

States Environmental Protection 

Agency’s May 12, 2014, Need for 

Additional 110(l) Analysis,’’ included in 

the 2017 submittal, MDEQ has clearly 

indicated that this exemption ‘‘is in no 

way intended to define routine 

maintenance, repair and replacement,’’ 

and confirm their adherence to current 

EPA policy on the matter. 

Comment 2: The fact that this rule 

allows ‘‘relocation of process equipment 

within the same geographical site is 

extremely problematic, as any relocation 

of a source of air emission can change 

that source’s impact on air quality and 

can negate any prior air quality analyses 

that have been done for the source. 

EPA Response: This is language that 

has already been approved into the 

Michigan SIP, and is not open for 

comment through this action. 

Comment 3: This rule could be 

considered to redefine ‘‘routine 

maintenance, repair, and replacement’’ 

under the major source PSD and 

nonattainment NSR rules. This was a 

concern raised by EPA, to which MDEQ 

responded to in part that its ‘‘Part 2 

exemptions are designed for use by 

small emitting sources.’’ However, 


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nothing in the PTI rules or exemptions 

limit those permit requirements to 

‘‘small emitting sources.’’ Indeed, the 

PTI program encompasses PSD and 

nonattainment NSR requirements and 

activities at existing major source 

subject to PTI requirements. 

EPA Response: As stated previously, 

EPA believes the additional restrictions 

included in Michigan R. 336.1278 and 

R. 336.1278a have adequately addressed 

these concerns. MDEQ clearly requires 

that a source first determine that a 

change is not subject to major source 

permitting requirements prior to 

implementing any of the listed 

exemptions. Furthermore, MDEQ has 

confirmed their adherence to current 

EPA guidance on routine maintenance, 

repair and replacement in the 2017 

submittal as described above. 

Comment 4: While Michigan R. 

336.1285(2)(a) gives examples of the 

types of parts replacement it considers 

to be ‘‘minor,’’ some of those examples 

could be construed as allowing 

component replacement that should not 

be considered routine. Specifically, 

Michigan provides examples that 

include replacement of fans, pumps, or 

motors ‘‘that do not alter the operation 

of the source,’’ replacement of boiler 

tubes, replacement of engines, 

compressor or turbines ‘‘as part of a 

normal maintenance program.’’ 

EPA Response: See response to 

comment 3 above. 

b. Michigan R. 336.1285(2)(b) PTI 

Exemptions 

Michigan R. 336.1285(2)(b) exempts 

‘‘changes in a process or process 

equipment which do not involve 

installing, constructing, or 

reconstructing an emission unit and 

which do not involve any meaningful 

change in the quality and nature or any 

meaningful increase in the quantity of 

the emission of an air contaminant 

therefrom.’’ 

Comment 1: This rule has vague, 

undefined terms such as ‘‘any 

meaningful change,’’ ‘‘quality’’ or 

‘‘nature’’ of emissions, and ‘‘any 

meaningful increase in the quantity of 

emissions.’’ It is unclear from the rule 

how changes are to be evaluated and the 

criteria upon which ‘‘meaningful’’ 

would be judged. This provision is 

clearly not enforceable and thus does 

not meet the minor NSR provisions of 

40 CFR 51.160(a) and (e) to clearly 

define the sizes and types of sources 

subject to review and to do so through 

legally enforceable procedures. 

EPA Response: EPA disagrees that the 

cited terms make the limitations 

unenforceable. We believe that the 

terms, in context, have their common 

meanings, and that that MDEQ has 

satisfactorily described the intent of 

these rules. In its May 15, 2012, letter, 

MDEQ states that ‘‘meaningful’’ would 

be defined as ‘‘having meaning or 

purpose.’’ In the context of a minor 

construction permitting program that 

would include a change that would 

result in an increase that could interfere 

with the NAAQS or increment. The rule 

also lists examples of changes that could 

be allowed by the rule such as a change 

in supplier of a particular raw material. 

While EPA agrees that there is some 

ambiguity in the term ‘‘meaningful,’’ the 

examples in the rule itself are adequate 

to appropriately narrow the scope of the 

exemption. 

Comment 2: Many of the examples of 

the types of changes identified in the 

rule that might be allowable are 

concerning and could allow a 

modification that should be reviewed 

for major NSR applicability. The fact 

that the rule limits changes to those 

which do not involve installing, 

constructing, or reconstructing an 

emission unit is not sufficiently 

protective given that the exemption still 

allows modifying an emissions unit. 

While the provisions of the rule are 

vague and subject to interpretation, the 

examples given in the rule of the types 

of process changes that could be exempt 

from a PTI show that emission increases 

could occur without review. EPA itself 

recognized this when it requested 

MDEQ complete an analysis under 

Section 110(l) of the Act. 

EPA Response: EPA’s request for an 

analysis under section 110(l) of the Act 

was in no way an indication that EPA 

believed this exemption would allow 

major modifications to go unpermitted. 

States are obligated to provide an 

analysis under Section 110(l) for any 

changes to coverage under the approved 

SIP. As discussed previously in this 

action, EPA is satisfied that the changes 

that MDEQ has made to Michigan R. 

336.1278 and 336.1278a, will prevent 

the use of the exemptions for actions 

that are subject to major construction 

permitting requirements. Major NSR 

and/or PSD applicability must be 

determined pursuant to Michigan Rules 

Part 18 and Part 19 before the 

exemptions in Part 2 can be applied. 

c. Michigan R. 336.1285(2)(c) PTI 

Exemptions 

Michigan R. 336.1285(2)(c) exempts 

the following changes from minor 

construction permitting: 

‘‘Changes in a process or process 

equipment that do not involve 

installing, constructing, or 

reconstructing an emission unit and that 

involve a meaningful change in the 

quality and nature or a meaningful 

increase in the quantity of the emission 

of an air contaminant resulting from any 

of the following: 

(i) Changes in the supplier or supply 

of the same type of virgin fuel, such as 

coal, no. 2 fuel oil, no. 6 fuel oil, or 

natural gas. 

(ii) Changes in the location, within 

the storage area, or configuration of a 

material storage pile or material 

handling equipment. 

(iii) Changes in a process or process 

equipment to the extent that such 

changes do not alter the quality and 

nature, or increase the quantity, of the 

emission of the air contaminant beyond 

the level which has been described in 

and allowed by an approved permit to 

install, permit to operate, or order of the 

department.’’ 

Comment 1: EPA apparently decided 

no increase in emissions would occur 

with this exemption; however, it is clear 

that actual emissions could increase 

with this exemption. Further, if there 

are no allowable emissions limits 

described for a pollutant or emissions 

unit in a permit or MDEQ order, then it 

appears even allowable emissions could 

increase under this exemption. Changes 

in types of coal burned can significantly 

increase emissions and therefore could 

actually impact the NAAQS. 

EPA Response: EPA disagrees with 

the commenter. Michigan R. 

336.1285(2)(c)(i) is limited to a change 

in supplier or supply of the same type 

of fuel. EPA would not expect state 

minor NSR programs create limits on 

the supplier of a raw material and the 

potential impact on emissions from a 

change in supplier is minimal. Nothing 

in this rule would allow a facility to 

change the type of fuel combusted as 

suggested by the commenter. Michigan 

R. 336.1285(2)(c)(ii) only allows moving 

storage piles or equipment within the 

existing storage area. A change in the 

location of equipment and storage piles 

should have no impact on the quantity 

of emissions; furthermore, when 

modelling impact on NAAQS from a 

storage area, total emissions from the 

storage area are modeled as an area 

source. Specific locations of piles or 

handling equipment are not modeled. 

Because the rule limits changes to the 

existing storage area, we would not 

expect an impact on the NAAQS with 

these types of changes either. Finally, 

Michigan R. 336.1285(2)(c)(iii) 

specifically excludes changes that 

would increase the quantity of 

emissions beyond that already allowed 

in a permit or order issued by MDEQ. 

Therefore, a change in the type of fuel 

combusted that results in an increase in 

emissions, as suggested by the 


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commenter, would be excluded from the 

use of this exemption. 

Comment 2: It must be pointed out 

that the exemptions in Michigan R. 

336.1285(2)(c), being based essentially 

on a comparison of allowable-toallowable emission increases, is based 

on an entirely inconsistent emissions 

increase approach than the major source 

permitting rules. The Courts have 

previously found that allowable-toallowable emissions test are not 

authorized under major source 

permitting programs. 

EPA Response: As previously 

discussed in this document, nothing in 

these rules impact applicability under 

major source permitting programs. 

MDEQ clearly requires that a source first 

determine that a change is not subject to 

major source permitting requirements 

prior to implementing any of the listed 

exemptions. With respect to 

requirements for applicability under 

minor NSR programs, the requirements 

of section 110(a)(2)(C) and 40 CFR 

51.160 do not expressly require the use 

of any particular applicability test, and 

therefore do not prohibit the use of an 

allowable-to-allowable or actual-toactual test. 

Comment 3: Michigan R. 

336.1285(2)(c)(ii) could readily allow a 

source to violate terms of an existing 

permit (including a major source PSD or 

non-attainment NSR permit) by 

allowing changes in the location or 

configuration of a material storage pile 

or material handling equipment. Any air 

modeling analysis that was done for 

such a source would have considered 

the location of material handling 

emissions in relation to publicly 

accessible land and roads. Given that 

fugitive emissions from material 

handling and/or storage piles have in 

many cases been modeled to cause or 

contribute to violations of the NAAQS 

or PSD increments for particulate matter 

(PM), particulate matter with an 

aerodynamic diameter less than or equal 

to 10 microns (PM10) and particulate 

matter with an aerodynamic diameter 

less than or equal to 2.5 microns (PM2.5), 

this cannot be considered as protective 

of the NAAQS. 

EPA Response: Michigan R. 

336.1278(4) states that the exemptions 

only apply to the requirement to obtain 

a PTI and ‘‘do not exempt any source 

from complying with any other 

applicable requirement or existing 

permit limitation.’’ Therefore, no 

exemption in Michigan R. 336.1280 

through 336.1290 would allow a source 

to violate terms of an existing permit as 

suggested by the commenter. 

Furthermore, as discussed above, the 

exemption limits relocation of 

equipment and piles to within the 

existing storage area. Due to the way in 

which emissions from storage areas are 

addressed in a modeling analysis this 

would result in no impact on previous 

modeling. 

d. Michigan R. 336.1285(2)(d)–(f) 

Michigan R. 336.1285(2)(d) exempts 

the replacement or reconstruction of air 

pollution control equipment with 

equivalent or more efficient control 

equipment. Michigan R. 336.1285(2)(e) 

exempts the installation of control 

equipment required by a National 

Emission Standard for Hazardous Air 

Pollutants. Michigan R. 336.1285(2)(f) 

exempts the installation and 

construction of air pollution control 

equipment that does not result in a 

significant increase in a pollutant from 

the pollution controls. 

Comment 1: EPA did not require a 

section 110(l) analysis for Michigan R. 

336.1285(d); however, this provision 

could allow for the replacement of 

existing controls with controls that 

could create a new source of emissions. 

For example, if a scrubber is installed at 

a unit utilizing dry sorbent injection for 

sulfur dioxide (SO2) control, the 

scrubber would add sources such as 

lime delivery and storage for scrubber 

waste disposal. EPA should not have 

excluded this provision from the 

requirement for a section 110(l) 

analysis. 

EPA Response: See EPA response to 

comments on the 110(l) analysis in 

Section II. F. below. 

e. Michigan R. 336.1285(2)(g)–(mm) 

Comment: Michigan R. 

336.1285(2)(g)–(mm) provide for 33 

specific and diverse exemptions from 

the PTI requirements. There are certain 

activities that seem as if they could be 

significant sources of air emissions, 

especially because a company could 

claim multiple PTI exemptions from 

these activities. 

EPA Response: As explained 

previously, EPA believes the limiting 

language in Michigan R. 336.1278 and 

336.1278a is sufficient to ensure that 

projects subject to major construction 

permitting requirements are excluded 

from the use of the exemptions. EPA has 

also previously addressed the definition 

of activity in the rule and believes that 

the rule requires the appropriate 

aggregation of multiple small changes 

when making applicability decisions. 

f. Michigan R. 336.1280–336.1284 and 

Michigan R. 336.1286–336.1290 

Comment: There are certain activities 

in Michigan R. 336.1280 through 

336.1284 and Michigan R. 336.1286 

through 336.1290 that seem as if they 

could be significant sources of air 

emissions, especially because a 

company could claim multiple PTI 

exemptions from these activities. 

EPA Response: As explained 

previously, EPA believes the limiting 

language in Michigan R. 336.1278 and 

336.1278a is sufficient to ensure that 

projects subject to major construction 

permitting requirements are excluded 

from the use of the exemptions. EPA has 

also previously addressed the definition 

of activity in the rule and believes that 

the rule requires the appropriate 

aggregation of multiple small changes 

when making applicability decisions. 

F. Comments Concerning the 110(l) 

Demonstration 

EPA received several comments 

regarding the 110(l) analysis provided 

by MDEQ. Section 110(l) of the CAA 

states that ‘‘[t]he Administrator shall not 

approve a revision of a plan if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress or any other applicable 

requirement of this chapter.’’ 42 U.S.C. 

7410(l). EPA does not interpret section 

110(l) to require a full attainment or 

maintenance demonstration before any 

changes to a SIP may be approved. 

Generally, a SIP revision may be 

approved under section 110(l) if EPA 

finds it will at least preserve status quo 

air quality. See Kentucky Resources 

Council, Inc. v. EPA, 467 F.3d 986 (6th 

Cir. 2006); GHASP v. EPA, No. 06– 

61030 (5th Cir. Aug. 13, 2008); see also, 

e.g., 70 FR 53 (Jan. 3, 2005), 70 FR 

28429 (May 18, 2005) (proposed and 

final rules, upheld in Kentucky 

Resources, which discuss EPA’s 

interpretation of section 110(l). 

In considering the new exemptions in 

Michigan R. 336.1280 through Michigan 

R. 336.1290, EPA examined the 

emission projections provided by MDEQ 

in the 2003 and 2017 submittals, the 

structure of the existing SIP permitting 

rules and the structure of each new 

exemption, and in some cases 

conservative air quality analysis 

(modeling or qualitative analysis in the 

case of ozone) provided in the 2017 

submittal. MDEQ’s currently approved 

permitting SIP generally requires a PTI 

for any change resulting in an increase 

in a regulated pollutant unless the 

particular change falls into one of the 

categories of exemptions contained in 

Michigan R. 336.1280 through Michigan 

R. 336.1290. MDEQ’s revisions expand 

the exempt categories. Several of the 

exempt categories would have no 

associated emissions of criteria 

pollutants. Several other categories of 


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exemptions contain production and 

operation restrictions and function as a 

permit by rule. Where the exemption 

did not contain enforceable limitations 

on production and operation, and 

projected emission increases were 

greater than 10 tons per year of a criteria 

pollutant, MDEQ provided an air quality 

analysis. MDEQ and EPA have 

evaluated the impacts of the proposed 

revisions, and determined that they do 

not interfere with attainment of any 

NAAQS or any other CAA requirement 

because the use of the exemption 

provides the same level of control 

measures as the control measures that 

would be included in an individual 

construction permit, the exemption 

would result in little or no increase in 

emissions of a criteria pollutant, or 

MDEQ has provided a suitable air 

quality analysis demonstrating no 

interference with attainment, reasonable 

further progress, or any other 

requirement of the Act. 

Comment 1: It appears that MDEQ 

and EPA assumed that, if emission 

increases were less than the major 

source modification significance levels, 

then the increase could not interfere 

with attainment or maintenance of the 

NAAQS. 

EPA Response: EPA agrees that major 

source modification significance levels 

alone would be insufficient to 

demonstrate non-interference. As 

explained elsewhere in this action, 

MDEQ’s non-interference demonstration 

took into account factors in addition to 

the significance levels, i.e., emission 

projections, the structure of the existing 

SIP permitting rules and the structure of 

each new exemption, and in some cases 

conservative air quality analysis 

(modeling or qualitative analysis in the 

case of ozone) provided in the 2017 

submittal. When evaluating the effect of 

the new exemptions, MDEQ and EPA 

first considered the level of control 

required by the current SIP. A permit 

issued under the currently approved SIP 

does not explicitly require an air quality 

analysis be performed. The currently 

approved program ensures the 

establishment of control measures in the 

permit. A number of the exemptions are 

structured as prohibitory rules and as 

such include control measures that are 

similar to the control measures that 

would be included in an individual 

permit. These may include restrictions 

on production and operation, 

restrictions on size of equipment, 

required control technology, or limits on 

raw materials used, in order to qualify 

for the exemption. Under these 

circumstances, EPA finds that these 

prohibitory rules, or permits by rule, 

preserve the status quo of the existing 

SIP. For other exemptions, MDEQ has 

demonstrated that the exemption will 

not result in an increase in emissions or 

have the potential to emit a criteria 

pollutant at all. If the exemption has no 

associated criteria pollutant emissions, 

no further analysis is necessary. For 

exemptions that could result in small 

increases in criteria pollutants, 

generally less than 10 tons per year, 

MDEQ has presented an analysis of the 

observed impacts from eliminating the 

individual permit requirement. MDEQ 

has reviewed the state emissions 

inventory to determine the amount and 

magnitude of emissions from the 

sources that are being exempted, and 

they have reviewed data from monitors 

within the state. MDEQ has not found 

that moving away from an individual 

permit for these smaller exempted 

sources have resulted in violations of 

the NAAQS. EPA has reviewed MDEQ’s 

analysis and agrees that no NAAQS 

violations would result from these small 

emissions increases. Furthermore, the 

commenter has not cited any example of 

an individual permit for these exempt 

categories that would have established 

any additional control measures. 

Finally, for the single exemption that 

would relax the current SIP and would 

result in an increase of a criteria 

pollutant greater than 10 tons per year, 

MDEQ provided a conservative 

modeling analysis demonstrating that 

exempting from permitting sources of 

that type and size would be unlikely to 

result in a violation of the NAAQS. EPA 

has also reviewed this modeling 

analysis and agrees that it supports 

MDEQ’s conclusion. 

Comment 2: The impact of an 

activity’s emissions on air pollutant 

concentrations is dependent on a 

myriad of factors including but not 

limited to stack height, temperature, 

velocity, topography, other buildings in 

the vicinity, and background pollutant 

concentrations; therefore, no specific 

ton per year level of emissions can be 

considered as protection of the NAAQS 

in all locations, and especially for short 

term average NAAQS. 

EPA Response: EPA agrees that it is 

not possible to set a single ton per year 

threshold for all situations that would 

prevent interference. EPA disagrees that 

the rules set such a ton per year 

threshold. As discussed elsewhere, tons 

per year was only one of the factors 

MDEQ utilized to demonstrate noninterference. As previously stated, EPA 

does not interpret section 110(l) to 

require a full attainment or maintenance 

demonstration before any changes to a 

SIP may be approved. 

Comment 3: MDEQ failed to evaluate 

emissions for the worst-case scenario 

under each exemption. This is 

especially true for the broad exemptions 

of Michigan R. 336.1285 where MDEQ 

just gave examples of emission 

estimates for certain exemptions. 

EPA Response: There are a few 

exemptions where MDEQ did not 

provide a worst-case analysis; however, 

in those cases, MDEQ has provided real 

world examples of how the exemptions 

have been applied and the resulting 

emissions increases that are 

representative of the larger projects that 

would likely use the exemption. For 

example, for Michigan R. 

336.1285(2)(b)(i)(H), which exempts 

lengthening a paint drying oven to allow 

for longer curing time, the emission 

estimates provided by MDEQ are based 

on an actual project at a major auto 

manufacturer. 

Comment 4: MDEQ failed to evaluate 

the cumulative emissions increases that 

could be exempt for a single source 

relying on multiple exemptions (such as 

adding several oil-fired equipment of 

less than 20 MMBtu/hour pursuant to 

Michigan R. 336.1282(2)(b)). 

EPA Response: MDEQ has provided 

projected increases from each of the 

exemptions, and EPA has found the 

analysis provided by MDEQ to be 

reasonable. With respect to the specific 

example provided by the commenter, 

the fuel burning exemption at Michigan 

R. 336.1282(2)(b) is structured as a 

prohibitory rule. The limitations 

imposed by the rule are equivalent to 

the types of limitations that would be 

included in a permit under the currently 

approved SIP. Moving from an 

individual permit system to a permit by 

rule system would preserve the status 

quo of the existing SIP. 

Comment 5: EPA did not require a 

Section 110(l) analysis for Michigan R. 

336.1285(2)(d) which allows for 

replacement of an air pollution control 

equipment with equivalent or more 

efficient equipment. However, this 

provision could allow an increase in 

emissions—for example, if a scrubber is 

installed at a unit utilizing dry sorbent 

injection for SO2 control, the scrubber 

would add sources such as lime 

delivery and storage and for waste 

disposal. Thus, EPA should not have 

exempted this rule from a 110(l) 

analysis. 

EPA Response: EPA did not exempt 

this rule from 110(l) requirements. EPA 

did determine that no additional 

analysis beyond the analysis of the 

exemption included with the 2003 

submittal was necessary. As discussed 

above, EPA does not interpret 110(l) as 

requiring a full attainment or 

maintenance demonstration. The 

exemption is limited to the replacement 


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of existing controls with identical or 

more efficient controls. Some form of 

add-on control technology must already 

exist to use this exemption. In the 

example provided by the commenter, 

where a source replaced a dry flue gas 

desulfurization unit with a wet flue gas 

desulfurization unit, both the existing 

controls and the new controls would 

have used lime in the process. The 

facility would have already had sources 

associated with lime delivery and 

storage, and both controls result in 

waste material. 

Comment 6: While EPA required a 

110(l) analysis for Michigan R. 

336.1285(2)(e) and (f), MDEQ simply 

evaluated the emission increase from a 

couple of examples and did not estimate 

worst case emissions. 

EPA Response: EPA believes that the 

examples selected by MDEQ are 

representative of the types of changes 

that would actually use the exemptions. 

Comment 7: EPA and MDEQ have not 

demonstrated that permit exemptions 

for activities with emission increases 

less than PSD significance levels will 

not interfere with attainment or 

maintenance of the NAAQS and will 

otherwise be consistent with the 

requirements of the Act. 

EPA Response: EPA’s conclusion that 

the changes to exempt categories will 

not interfere with attainment or 

maintenance of the NAAQS is not based 

on the assumption that increases less 

than the PSD significance thresholds 

will not impact the NAAQS. As 

discussed above, EPA does not interpret 

section 110(l) to require a full 

attainment or maintenance 

demonstration before any changes to a 

SIP may be approved. In considering the 

new exemptions in Michigan R. 

336.1280 through Michigan R. 336.1290, 

EPA examined the emission projections 

provided by MDEQ in the 2003 and 

2017 submittals, the structure of the 

existing SIP permitting rules and the 

structure of each new exemption, and in 

some cases conservative air quality 

analysis (modeling or qualitative 

analysis in the case of ozone) provided 

in the 2017 submittal. 

Comment 8: MDEQ’s modeling 

demonstrates that emission increases at 

levels much lower than the PSD 

significance levels could threaten 

attainment of the NAAQS and that other 

contributing factors such as stack 

characteristics and background 

concentration of an area must also be 

taken into account. Furthermore, 

because the modeling performed shows 

modeled concentrations near the 24- 

hour PM2.5 NAAQS, MDEQ’s modeling 

demonstrates that Michigan R. 

336.1285(p) could result in a violation 

of a NAAQS. 

EPA Response: The modeling 

submitted in support of Michigan R. 

336.1285(2)(p) is sufficiently 

conservative to demonstrate that the 

exemption is unlikely to result in a 

violation of a NAAQS. While the 

modeled concentration for larger tower 

dryers when combined with a 

conservative background are 

approaching the 24-hour PM2.5 NAAQS, 

this type of equipment is uncommon in 

the state of Michigan and would be 

located in rural areas where background 

concentrations tend to be lower. The 

more common column dryers would 

have a significantly lower impact on 

PM2.5 concentrations. 

Comment 9: EPA cannot justify 

approving Michigan’s minor source 

review exemptions based on how such 

activities were previously permitted by 

MDEQ. 

EPA Response: As stated above EPA 

does not interpret section 110(l) to 

require a full attainment or maintenance 

demonstration before any changes to a 

SIP may be approved. When evaluating 

the effect of any new exemption, EPA 

must first consider the level of control 

required by the current SIP. In this case, 

the evaluation concerns the effect of the 

individual construction permit issued as 

required by the currently approved 

permitting rules. A permit issued under 

the currently approved SIP does not 

explicitly require an air quality analysis 

be performed. What is assured under the 

currently approved program is the 

establishment of control measures in the 

permit. A number of the exemptions are 

structured as prohibitory rules and 

include control measures that are 

similar to the control measures that 

would be included in an individual 

permit. These may include restrictions 

on production and operation, 

restrictions on size of equipment, 

required control technology, or limits on 

raw materials used. Under these 

circumstances, EPA finds that these 

prohibitory rules, or permits by rule, 

preserve the status quo of the existing 

SIP. 

Comment 10: In the proposed 

approval EPA states, ‘‘where an 

exemption could result in an increase of 

a regulated pollutant in amounts greater 

than 10 tons per year, MDEQ provided 

modeling, or in the case of ozone, a 

qualitative analysis to demonstrate that 

the emissions that could result from the 

exempt categories would have no 

significant impact on compliance with 

the NAAQS.’’ A modeling analysis was 

only included for Michigan R. 

336.1285(2)(p), yet a review of 

Attachment H to the 2003 submittal 

shows several categories with estimates 

exceeding 10 tons per year. Specifically, 

the commenter has identified the fuel 

burning equipment exemptions in 

Michigan R. 336.1282(2)(b). 

EPA Response: EPA disagrees to the 

extent that the commenter is suggesting 

that a demonstration of non-interference 

requires modeling for all exemptions. 

As previously discussed, the fuel 

burning exemptions in Michigan R. 

336.1285(b) are structured as permits by 

rule and contain enforceable restrictions 

on capacity and raw materials which are 

equivalent to the controls that would be 

included in a permit under the currently 

approved SIP. Moving from an 

individual permit system to a permit by 

rule system would preserve the status 

quo of the existing SIP. The only 

exemption that relaxes the current SIP 

permitting requirements with a resulting 

increase greater than 10 tons per year is 

the grain handling exemption at 

Michigan R. 336.1285(p), for which 

MDEQ provided a modeling analysis 

showing that the revision would not 

interfere with attainment of the NAAQS. 

G. Comments Concerning the Docket 

Approximately a week before the end 

of the first comment period for this 

rulemaking, EPA was informed of issues 

with the electronic docket at 

regulations.gov. The docket incorrectly 

linked to numerous unrelated 

documents. Additionally, upon review, 

EPA noted that certain documents 

related to the rulemaking were not 

present. The interested parties requested 

that the docket be fixed and that EPA 

extend the comment period. Because of 

the lack of time remaining on the 

comment period, EPA was unable to 

extend the comment period, and 

informed the interested parties that EPA 

would address the docket issues and 

reopen the comment period for an 

additional 30 days. The comments 

received after the close of the first 

comment period noted the docket issues 

in the comments. EPA added missing 

information to the docket in September 

2017 and published a notice reopening 

the comment period for 30 days on 

November 2, 2017. 

In comments received during the first 

reopening, commenters noted that the 

electronic file for the September 2003 

submittal from MDEQ was missing an 

attachment. The missing information 

was added to the electronic docket in 

November of 2017, and the interested 

parties were informed that EPA would 

reopen the comment period for a second 

time for a period of 15 days. The second 

reopening of the comment period was 

published on January 9, 2017. EPA 

believes that the correction of the 


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1 62 FR 27968 (May 22, 1997). 

electronic docket and the two notices 

reopening the comment period for the 

rulemaking address all comments 

related to missing information in the 

docket. 

The comments received during the 

first reopening also noted that EPA had 

included copies of several MDEQ policy 

documents to the docket. The 

commenters noted that if EPA is 

proposed to approve any of these 

documents as part of the SIP, EPA must 

issue a revised proposed rulemaking 

making clear to the public which 

documents it is proposing to approve. 

EPA is not approving these documents 

into the SIP and the summary of 

documents EPA is incorporating into 

the SIP in Section VI ‘‘Incorporation by 

Reference’’ in the proposed rulemaking 

is correct. The policy documents were 

added because EPA thought they would 

be of interest to the public. EPA is not 

relying on these documents to support 

approval of the rules, and there is no 

need to re-propose based on the 

addition of these documents to the 

docket as suggested by the commenters. 

III. What action is EPA taking? 

EPA is approving all changes 

submitted by MDEQ except for changes 

to Michigan R 336.1205 which includes 

provisions for public notice. EPA will 

not be taking any action with respect to 

the changes in public notice and will be 

addressing Michigan R 336.1205 in a 

separate action. The already approved 

public notice procedures will remain in 

the SIP until EPA takes action on 

Michigan R 336.1205. 

IV. Incorporation by Reference 

In this rule, EPA is finalizing 

regulatory text that includes 

incorporation by reference. In 

accordance with requirements of 1 CFR 

51.5, EPA is finalizing the incorporation 

by reference of the Michigan 

Regulations described in the 

amendments to 40 CFR part 52 set forth 

below. 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). 

Therefore, these materials have been 

approved by EPA for inclusion in the 

State implementation plan, have been 

incorporated by reference by EPA into 

that plan, are fully federally enforceable 

under sections 110 and 113 of the Act 

as of the effective date of the final 

rulemaking of EPA’s approval, and will 

be incorporated by reference in the next 

update to the SIP compilation.1

V. Statutory and Executive Order 

Reviews 

Under the Act, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

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 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 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). 

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 Act, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by October 30, 2018. 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).) 

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: August 21, 2018. 

Cathy Stepp, 

Regional Administrator, Region 5. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 


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

■ 2. In § 52.1170, the table in paragraph 

(c) is amended by revising the entries 

under the heading ‘‘Part 2. Air Use 

Approval’’ to read as follows: 

§ 52.1170 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED MICHIGAN REGULATIONS

Michigan citation Title 

State 

effective 

date 

EPA approval date Comments 

*******

Part 2—Air Use Approval 

R 336.1201 ....... Permits to install .................................................. 6/20/2008 08/31/2018, [Insert Federal 

Register citation].

R 336.1201a ..... General permits to install .................................... 7/01/2003 08/31/2018, [Insert Federal 

Register citation].

R 336.1202 ....... Waivers of approval ............................................ 6/20/2008 08/31/2018, [Insert Federal 

Register citation].

R 336.1203 ....... Information required ............................................ 7/26/1995 08/31/2018, [Insert Federal 

Register citation].

R 336.1204 ....... Authority of agents .............................................. 7/26/1995 08/31/2018, [Insert Federal 

Register citation].

R 336.1206 ....... Processing of applications for permits to install 7/26/1995 08/31/2018, [Insert Federal 

Register citation].

R 336.1207 ....... Denial of permits to install ................................... 6/20/2008 08/31/2018, [Insert Federal 

Register citation].

R 336.1209 ....... Use of old permits to limit potential to emit ........ 7/26/1995 08/31/2018, [Insert Federal 

Register citation].

R 336.1212 ....... Administratively complete applications; insignificant activities; streamlining applicable requirements; emissions reporting and fee calculations.7/26/1995 08/31/2018, [Insert Federal 

Register citation].

R 336.1216 ....... Modifications to renewable operating permits .... 7/26/1995 08/31/2018, [Insert Federal 

Register citation].

R 336.1219 ....... Amendments for change of ownership or operational control.6/20/2008 08/31/2018, [Insert Federal 

Register citation].

R 336.1221 ....... Construction of sources of particulate matter, 

sulfur dioxide, or carbon monoxide in or near 

nonattainment areas; conditions for approval.

7/17/1980 1/12/1982, 47 FR 1292.

R 336.1240 ....... Required air quality models ................................ 6/20/2008 08/31/2018, [Insert Federal 

Register citation].

R 336.1241 ....... Air quality modeling demonstration requirements 6/20/2008 08/31/2018, [Insert Federal 

Register citation].

R 336.1278 ....... Exclusion from exemption ................................... 6/20/2008 08/31/2018, [Insert Federal 

Register citation].

R 336.1278a ..... Scope of permit exemptions ............................... 12/20/2016 08/31/2018, [Insert Federal 

Register citation].

R 336.1280 ....... Permit to install exemptions; cooling and ventilating equipment.12/20/2016 08/31/2018, [Insert Federal 

Register citation].

R 336.1281 ....... Permit to install exemptions; cleaning, washing, 

and drying equipment.

12/20/2016 08/31/2018, [Insert Federal 

Register citation].

R 336.1282 ....... Permit to install exemptions; furnaces, ovens, 

and heaters.

12/20/2016 08/31/2018, [Insert Federal 

Register citation].

R 336.1283 ....... Permit to install exemptions; testing and inspection equipment.12/20/2016 08/31/2018, [Insert Federal 

Register citation].

R 336.1284 ....... Permit to install exemptions; containers ............. 12/20/2016 08/31/2018, [Insert Federal 

Register citation].

R 336.1285 ....... Permit to install exemptions; miscellaneous ....... 12/20/2016 08/31/2018, [Insert Federal 

Register citation].

R 336.1286 ....... Permit to install exemptions; plastic processing 

equipment.

12/20/2016 08/31/2018, [Insert Federal 

Register citation].

R 336.1287 ....... Permit to install exemptions; surface coating 

equipment.

12/20/2016 08/31/2018, [Insert Federal 

Register citation].

R 336.1288 ....... Permit to install exemptions; oil and gas processing equipment.12/20/2016 08/31/2018, [Insert Federal 

Register citation].

R 336.1289 ....... Permit to install exemptions; asphalt and concrete production equipment.12/20/2016 08/31/2018, [Insert Federal 

Register citation].

R 336.1290 ....... Permit to install exemptions; emission units with 

limited emissions.

12/20/2016 08/31/2018, [Insert Federal 

Register citation].

R 336.1299 ....... Adoption of standards by reference .................... 6/20/2008 08/31/2018, [Insert Federal 

Register citation].


daltland on DSKBBV9HB2PROD with RULES
44498 Federal Register / Vol. 83, No. 170 / Friday, August 31, 2018 / Rules and Regulations 

1The term state has the same meaning as 

provided in CAA section 302(d) which specifically 

includes the District of Columbia. 

2All the other infrastructure SIP elements for the 

District for the 2008 ozone NAAQS were addressed 

in a separate rulemaking. See 80 FR 19538 (April 

13, 2015). 

3Both NOX and VOCs are precursors to ozone 

formation. 

4The District’s last remaining EGUs were 

decommissioned in 2012, in part to meet permit 

requirements incorporated into the District’s 

Regional Haze SIP. 77 FR 5191 (February 2, 2012). 

EPA-APPROVED MICHIGAN REGULATIONS—Continued 

Michigan citation Title 

State 

effective 

date 

EPA approval date Comments 

*******

* * * * * 

[FR Doc. 2018–18853 Filed 8–30–18; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2014–0701; FRL–9983– 

11—Region 3] 

Air Plan Approval; District of 

Columbia; State Implementation Plan 

for the Interstate Transport 

Requirements for the 2008 Ozone 

Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a state 

implementation plan (SIP) revision 

submitted by the District of Columbia 

(the District) that pertains to the good 

neighbor and interstate transport 

requirements of the Clean Air Act (CAA) 

for the 2008 ozone national ambient air 

quality standards (NAAQS). The CAA’s 

good neighbor provision requires EPA 

and states to address the interstate 

transport of air pollution that affects the 

ability of other states to attain and 

maintain the NAAQS. Specifically, the 

good neighbor provision requires each 

state in its SIP to prohibit emissions that 

will significantly contribute to 

nonattainment, or interfere with 

maintenance, of a NAAQS in another 

state. The District submitted a SIP 

revision on June 13, 2014 that addresses 

the interstate transport requirements for 

the 2008 ozone NAAQS. On July 5, 

2018, EPA published a proposed rule for 

just the good neighbor provision of the 

District’s June 13, 2014 submittal. EPA 

is approving the District’s SIP as having 

adequate provisions to meet the 

requirements of the good neighbor 

provision for the 2008 ozone NAAQS in 

accordance with section 110 of the 

CAA. 

DATES: This final rule is effective on 

October 1, 2018. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2014–0701. All 

documents in the docket are listed on 

the http://www.regulations.gov website. 

Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available through http://

www.regulations.gov, or please contact 

the person identified in the FOR FURTHER

INFORMATION CONTACT section for 

additional availability information. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Schmitt, (215) 814–5787, or by 

email at schmitt.ellen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On June 13, 2014, the District 

Department of the Environment (DDOE) 

on behalf of the District submitted a 

revision to its SIP to satisfy the 

requirements of section 110(a)(2) of the 

CAA for the 2008 ozone NAAQS. On 

April 13, 2015 (80 FR 19538), EPA 

approved all parts of the District’s June 

13, 2014 submittal with the exception of 

the portion of the submittal that 

addressed section 110(a)(2)(D)(i)(I) of 

the CAA. Section 110(a)(2)(D)(i)(I), also 

called the good neighbor provision, 

consists of two prongs that require that 

a state’s 1 SIP must contain adequate 

provisions to prohibit any source or 

other type of emissions activity within 

the state from emitting air pollutants 

that ‘‘contribute significantly to 

nonattainment in, or interfere with 

maintenance by, any other state with 

respect to any such national primary or 

secondary ambient air quality 

standard.’’ Under section 

110(a)(2)(D)(i)(I) of the CAA, EPA gives 

independent significance to the matter 

of nonattainment (prong 1) and to that 

of maintenance (prong 2). 

On July 5, 2018 (83 FR 31350), EPA 

published a notice of proposed 

rulemaking (NPR) for the District of 

Columbia, approving the portion of the 

June 13, 2014 District SIP revision 

addressing prongs 1 and 2 of the 

interstate transport requirements for 

section 110(a)(2)(D)(i)(I) for the 2008 

ozone NAAQS.2

II. Summary of SIP Revision and EPA 

Analysis 

In its June 13, 2014 submittal, the 

District identified the implemented 

regulations within its SIP that limit 

nitrogen dioxide (NOX) and/or volatile 

organic compound (VOC) emissions 

from District sources.3 The District 

indicates that there are no electric 

generating units (EGUs) 4 or other large 

industrial sources of NOX emissions 

within the District. In the submittal, the 

District also included information on 

non-EGUs and mobile sources and listed 

the SIP-approved measures that help to 

reduce NOX and VOC emissions from 

non-EGU and mobile sources within the 

District. In the submittal, the District 

points out that it will continue to rely 

on federal measures to reduce NOX

emissions from onroad and nonroad 

engines. The District states its sources 

are already well controlled, and states 

further reductions beyond the District’s 

current SIP measures are not 

economically feasible. 

EPA evaluated the District’s submittal 

for the 2008 ozone NAAQS, 

considering: Ozone precursor emissions; 

an analysis of District source sectors; 

and in-place controls and regulations. 

Due to the District’s small number of 

sources and the high cost of further 

reductions, EPA proposed in its July 5, 

2018 NPR that the District’s SIP, as 

presently approved, contains adequate 

measures to prevent District sources 

from interfering with maintenance or 

contributing significantly to 

nonattainment in another state for the 

2008 ozone NAAQS. The rationale for 

EPA’s proposed action was discussed in 

greater detail in the NPR and 

accompanying technical support 

document (TSD) and will not be restated 

here. 


daltland on DSKBBV9HB2PROD with RULES