53366 Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations 

through 50.19, and the cap disclosure 

requirement of § 50.15, for each 

underlying insured loss that is included 

in the amount of the insurer’s aggregate 

insured losses; and 

* * * * * 

David G. Nason, 

Assistant Secretary (Financial Institutions). 

[FR Doc. E8–21578 Filed 9–15–08; 8:45 am] 

BILLING CODE 4810–25–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2007–1043; FRL–8714–1] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Michigan; PSD Regulations 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is conditionally 

approving into Michigan’s State 

Implementation Plan (SIP) specified 

revisions to add the prevention of 

significant deterioration (PSD) 

construction permit program for the 

purpose of meeting the requirements of 

the Clean Air Act (CAA) with regard to 

new source review in areas attaining the 

National Ambient Air Quality 

Standards. The Michigan Department of 

Environmental Quality (MDEQ) 

submitted these rules to EPA for 

approval and inclusion into the 

Michigan SIP on December 21, 2006. In 

addition, in a separate action in today’s 

Federal Register, EPA is proposing to 

partially disapprove the portion of 

Michigan’s SIP revision submission 

consisting of Michigan Rule R 336.2816. 

The PSD SIP revision affects major 

stationary sources in Michigan that are 

subject to, or potentially subject to, the 

PSD construction permit program. 

DATES: This final rule is effective on 

October 16, 2008. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2007–1043. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

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 electronically through 

www.regulations.gov or in hard copy at 

the U.S. 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 Laura Cossa, 

Environmental Engineer, at (312) 886– 

0661 before visiting the Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Laura Cossa, Environmental Engineer, 

Air Permits Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 886–0661, 

cossa.laura@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 Being Addressed in This 

Document? 

II. What Proposed Revisions Are Included in 

the Conditional Approval? 

III. What Proposed Revisions Are Not 

Included in Today’s Conditional 

Approval? 

IV. What Were the Comments Received and 

EPA’s Response to Comments? 

V. What Action Is EPA Taking? 

VI. Statutory and Executive Order Reviews 

I. What Is Being Addressed in This 

Document? 

MDEQ submitted Michigan Air 

Pollution Control Rules, Part 18, Rules 

R 336.2801 to R 336.2819 and R 

336.2823(1) to (14) (‘‘Part 18’’) to EPA 

on December 21, 2006, for EPA approval 

and inclusion into the Michigan SIP. 

Part 18 relates to Michigan’s PSD permit 

program. Michigan adopted revisions to 

Part 18 on December 4, 2006. Prior to 

approval of Michigan’s submitted PSD 

program, EPA delegated to Michigan the 

authority to issue PSD permits through 

the Federal PSD rules at 40 CFR 52.21 

(via delegation letter dated September 

26, 1988). 

On January 9, 2008, EPA proposed to 

conditionally approve Michigan’s PSD 

SIP rules under section 110 of the CAA. 

(73 FR 1570, January 9, 2008). EPA 

received a number of comments on our 

proposal (see discussion in Section IV 

below). After considering the comments 

received, EPA is finalizing most of our 

proposed conditional approval of 

Michigan Air Pollution Control Rules, 

Part 18, Rules R 336.2801 to R 336.2819 

and R 336.2823(1) to (14) (with one 

exception discussed in more detail 

below). Under section 110(k)(4) of the 

CAA, EPA may conditionally approve a 

SIP revision based on a commitment 

from the State to adopt specific 

enforceable measures by a date certain 

that is no more than twelve months 

from the date of the conditional 

approval. 

In addition, in a separate action also 

published today, EPA is proposing to 

disapprove Michigan Rule R 336.2816, 

which is also included in the State’s 

December 21, 2006, PSD program 

submission. This rule sets out the 

mechanisms which facilitate the 

participation of the Federal Land 

Manager (FLM) in the State’s permitting 

process for purposes of protecting either 

the increment or the Air Quality Related 

Values (AQRVs) associated with a Class 

I area from potential impacts from a 

proposed major source or major 

modification. Michigan will retain its 

Federal delegation of authority under 40 

CFR 52.21(p) until such time as the 

State submits promulgated rules 

equivalent to 40 CFR 51.166(p) and 

those rules are approved into its SIP. 

Under section 110(k)(3), EPA may 

disapprove a part of a SIP revision if the 

partial disapproval meets certain 

conditions discussed in Section III, 

below. 

Further, EPA is proposing to approve 

in the alternative a revised Michigan 

Rule R 336.2816 once the State submits 

and EPA approves promulgated rules 

equivalent to 40 CFR 51.166(p), which 

the State has committed to do. 

Michigan is not authorized to carry 

out its Federally approved air program 

in ‘‘Indian Country,’’ as defined in 18 

U.S.C. 1151. Indian Country includes: 1. 

All lands within the exterior boundaries 

of Indian reservations within the State 

of Michigan; 2. Any land held in trust 

by the U.S. for an Indian tribe; and 3. 

Any other land, whether on or off an 

Indian reservation that qualifies as 

Indian Country. Therefore, EPA retains 

the authority to implement and 

administer the CAA program in Indian 

Country. 

II. What Proposed Revisions Are 

Included in the Conditional Approval? 

EPA is conditionally approving the 

following sections of ‘‘Part 18, 

Prevention of Significant Deterioration 

of Air Quality’’ of Michigan’s Air 

Pollution Control Rules, (a detailed 

discussion of the reasons for the 

conditional approval is available in 73 

FR 1043, January 9, 2008): 

R 336.2801 Definitions (a) through (tt) 

[except for R 336.2801 (j) and (ff), reserved 

in original rule]; 

R 336.2802 Applicability; 

R 336.2803 Ambient Air Increments; 

R 336.2804 Ambient Air Ceilings; 


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Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations 53367 

R 336.2805 Restrictions on Area 

Classifications; 

R 336.2806 Exclusions from Increment 

Consumption; 

R 336.2807 Redesignation; 

R 336.2808 Stack Heights; 

R 336.2809 Exemptions; 

R 336.2810 Control Technology Review; 

R 336.2811 Source Impact Analysis; 

R 336.2812 Air Quality Models; 

R 336.2813 Air Quality Analysis; 

R 336.2814 Source Information; 

R 336.2815 Additional Impact Analyses; 

R 336.2817 Public Participation; 

R 336.2818 Source Obligation; 

R 336.2819 Innovative Control Technology; 

and, 

R 336.2823 Actuals Plantwide Applicability 

Limits (PALs) (1) through (14). 

III. What Proposed Revisions Are Not 

Included in Today’s Conditional 

Approval? 

Today’s action does not extend 

conditional approval to Michigan Rule 

R 336.2816, ‘‘Sources Impacting Federal 

Class I Areas—Additional 

Requirements.’’ EPA determined that 

Michigan Rule R 336.2816 is not 

consistent with 40 CFR 51.166(p), 

which sets out the mechanisms which 

facilitate the participation of the FLM in 

the State’s permitting process for 

purposes of protecting either the 

increment or the AQRVs associated with 

a Class I area from potential impacts 

from a proposed major source or major 

modification. 

As further discussed below, 

commenters raised concerns that, 

insofar as Michigan Rule R 336.2816 

does not fully provide this mechanism, 

EPA should act to ensure that the SIP 

contains these requirements. On 

November 30, 2007, in a letter from 

Steven Chester, Director, MDEQ, to 

Mary Gade, Regional Administrator, 

Michigan committed, among other 

things, to making changes to Michigan 

Rule R 336.2816 consistent with the 

requirements at 40 CFR 51.166(p). 

Because Michigan currently 

implements the Federal PSD program 

under EPA’s delegation of 40 CFR 52.21, 

EPA’s conditional approval of Michigan 

Rule R 336.2816 would have made the 

Michigan SIP less stringent than the 

currently applicable, Federally 

delegated program. Therefore, in a 

separate action published today, EPA is 

proposing to disapprove Michigan’s 

submittal as it relates to Michigan Rule 

R 336.2816. Michigan will retain its 

Federal delegation of authority under 40 

CFR 52.21(p) to administer Michigan 

Rule R 336.2816 until such time as the 

State submits promulgated rules 

equivalent to 40 CFR 51.166(p) for 

approval, and these rules are approved 

into its SIP. 

IV. What Were the Comments Received 

and EPA’s Response to Comments? 

The public comment period for our 

proposed conditional approval began on 

January 9, 2008 (73 FR 1570, January 9, 

2008). During the public comment 

period, EPA received both supportive 

and adverse comments in response to 

our proposed rulemaking. EPA received 

comments in support of our proposed 

action from the Alliance of Automobile 

Manufacturers and Marathon Petroleum 

Company on February 7, 2008, and from 

Consumers Energy Company on March 

11, 2008 (Comment 1, discussed below). 

EPA received adverse consolidated 

comments, dated March 11, 2008, from 

Clean Water Action, Environmental Law 

and Policy Center, Michigan Energy 

Alternatives, Michigan Land Use 

Institute, Midland Cares, Natural 

Resources Defense Council and Sierra 

Club ((‘‘Consolidated Commenters’’) 

Comment 2, discussed below). EPA also 

received three requests, from Sidley and 

Austin LLP, Alliance of Automobile 

Manufacturers and Marathon Petroleum 

Company, on January 8, February 7, and 

March 11, 2008, respectively, to 

terminate the PSD delegation agreement 

between MDEQ and EPA when the 

approval of PSD program is issued 

(Comment 3, discussed below). One 

commenter (Consumers Energy 

Company) requested that EPA explicitly 

state in this notice the appropriate 

appeal procedures once the SIP is 

conditionally approved (Comment 4, 

discussed below). One commenter 

(Alliance of Automobile Manufacturers) 

expressed concern that Michigan’s 

definition of ‘‘net emission increase’’ 

was more stringent than the Federal 

definition. As described in 40 CFR 

51.166(b), states can use definitions that 

are more stringent than the 

corresponding definitions listed in 40 

CFR 51.166(b)(1) to (56). However, in a 

letter dated May 17, 2007, Michigan 

stated that it did not intend to 

implement a more stringent definition, 

and stated that the definition of ‘‘net 

emissions increase’’ is being rewritten 

under a State rulemaking, so that it will 

follow the same requirements as the 

Federal rule. Michigan indicates that the 

definition of ‘‘net emissions increase’’ as 

currently set forth in Michigan Rule R 

336.2801(ee) will be applied until the 

state rules are revised. The same 

commenter (Alliance of Automobile 

Manufacturers) expressed concern that 

the requirements of Michigan Rule R 

336.2818 (Source Obligation) are more 

stringent than the Federal requirements 

(Comment 5, discussed below). 

On January 25, 2008, EPA received a 

request from the Consolidated 

Commenters to extend the public 

comment period an additional 30 days 

from the original closing date of 

February 8, 2008. Despite one comment 

to the contrary, EPA reopened the 

public comment period for an 

additional 30 days until March 10, 2008 

(73 FR 8250, February 13, 2008). 

EPA has considered the comments 

received and, with the exception of the 

proposed disapproval of Michigan Rule 

R 336.2816, has finalized our action as 

proposed. Presented below is a 

summary of the comments and our 

responses. 

Comment 1: Three commenters 

supported the approval of Michigan’s 

PSD Rules into the Michigan SIP and 

requested that EPA make the rule 

effective immediately upon publication. 

Response: EPA acknowledges receipt 

of the comments and for reasons set 

forth in this Notice is proceeding with 

a conditional approval of the specified 

PSD rules (along with the proposed 

disapproval of Michigan Rule R 

336.2816). Pursuant to section 110(k)(4) 

of the CAA, EPA may conditionally 

approve a portion of a SIP revision 

based on a commitment from the State 

to adopt specific, enforceable measures, 

no later than twelve months from the 

date of final conditional approval. The 

State must provide the corrected 

promulgated rules, not a new SIP 

submittal, to EPA for approval. If the 

State fails to actually make the changes 

within the twelve month period, EPA 

would subsequently publish a notice in 

the Federal Register providing notice 

and details of such disapproval. EPA is 

not required to propose the finding of 

disapproval. If Michigan submits final 

and effective rule revisions correcting 

the deficiencies, as discussed above, 

within one year from this conditional 

approval becoming final and effective, 

EPA will publish a subsequent notice in 

the Federal Register to acknowledge 

that Michigan has met the criteria of a 

conditional approval and to inform the 

public about the conversion from a 

conditional approval to a full approval. 

Federal regulations at 40 CFR 51.166 

set forth the criteria for a PSD program 

approval that EPA applies. With the 

exception of several deficiencies that 

need to be corrected, EPA has 

determined that Michigan’s PSD rules 

meet these criteria. These deficiencies 

are explained below, in Part IV of this 

document, entitled ‘‘What Action Is 

EPA Taking.’’ Therefore, EPA is 

conditionally approving a revision to 

the SIP that includes specified sections 

of Michigan’s PSD construction permit 

program, with the exception of the 

proposed disapproval of Michigan Rule 

R 336.2816. 


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The requirement to provide at least 30 

days notice before a rule becomes 

effective comes from the Administrative 

Procedures Act (APA), which governs 

all Federal rulemaking, not just EPA 

rulemaking. Section 553(d) of the APA 

provides that set 

[T]he required publication or service of a 

substantive rule shall be made not less than 

30 days before its effective date, except— 

(1) A substantive rule which grants or 

recognizes an exemption or relieves a 

restriction; 

(2) Interpretative rules and statements of 

policy; or 

(3) As otherwise provided by the agency 

for good cause found and published with the 

rule. 

5 U.S.C. 553(d)(1)–(3). 

In rulemaking, exemptions from APA 

requirements are to be interpreted 

narrowly, not broadly. The commenters 

have not shown ‘‘good cause,’’ which, in 

this case, would be a demonstration of 

what actual hardship they would face as 

a result of a 30-day effective date. In the 

context of adoption of a State program, 

such as this, which essentially mirrors 

a Federal program, it is difficult to 

conceive of situations that would 

actually present such good cause. 

Arguments for rushing the new program 

into place imply that the new program 

is less stringent than the existing 

Federal rules, and undercut the 

rationale for approving it. 

Considerations supporting the 30 day 

notice period include: Providing 

advance notice to the regulated 

community and the public of the legal 

and practical requirements under the 

regulations, giving MDEQ time to get 

ready to implement the program, giving 

EPA time to work out the protocol of 

reviewing the State permits, and giving 

Michigan sources advance notice of 

which rules will apply and where their 

applications should be submitted. We 

find that the reasons listed by the 

commenters do not constitute a ‘‘good 

cause’’ to deviate from the general rule 

of section 553 of the APA. Therefore, 

the effective date of this rule is 30 days 

after the publication. Additionally, the 

commenter urges EPA to adopt an 

effective date concurrent with signature 

because this approach was followed by 

EPA in its conditional approval of the 

Ohio PSD SIP (66 FR 51570, October 10, 

2001). The commenter is mistaken. In 

the case of the Ohio PSD SIP, the 

approval was not effective until the 

conditions were actually determined to 

be fulfilled, which would have taken 

more than 30 days. 

Comment 2: One group of 

commenters requested that EPA deny 

approval of Michigan’s current PSD SIP 

revision, require the State to resubmit a 

revision with materials addressing the 

comments made, and impose 

appropriate conditions on any 

subsequent approval. 

Response: EPA acknowledges receipt 

of the comments and has addressed 

them specifically below (Comments A 

through F). As explained in EPA’s 

response to Comment D.2, in a separate 

action EPA is proposing disapproval of 

Michigan Rule R 336.2816 (Sources 

Impacting Federal Class I Areas— 

additional requirements). 

Comment A: The commenters 

requested that EPA should make 

explicit in its approval that provisions 

in the Michigan SIP concerning best 

available control technology (‘‘BACT’’) 

analysis and air quality analysis, 40 CFR 

51.166(j) and (m), apply to construction 

of any new major stationary source or 

major modification that would result in 

any emissions of particulate matter of 

less than or equal to 2.5 micrometers in 

diameter (PM2.5), carbon dioxide, and/ 

or other greenhouse gases (GHG), based 

on the definitions of ‘‘significant’’ and 

‘‘regulated New Source Review (NSR) 

pollutant’’ contained in the Federal 

regulations. 

Response: The minimum program 

requirements at 40 CFR 51.166 do not 

require States to designate individual 

pollutants as being covered by their PSD 

programs. As long as States adopt 

regulations that meet the requirements 

of 40 CFR 51.166 and their regulations 

include the pollutants covered by our 

definition of ‘‘regulated NSR pollutant’’ 

at 40 CFR 51.166(b)(49), then the State 

has satisfied the requirements for SIP 

approval. The definition of ‘‘regulated 

NSR pollutant’’ in Michigan Rule R 

336.2801(nn) follows the Federal 

definition. 

The BACT requirement set forth in 40 

CFR 51.166(j) applies to each regulated 

NSR pollutant covered by the definition 

at 40 CFR 51.166(b)(49), and Michigan’s 

submission is consistent with the 

requirement. In addition, EPA construes 

the air quality analysis requirement set 

forth in 40 CFR 51.166(m) to apply only 

to regulated NSR pollutants. The 

regulation at 40 CFR 51.166(m)(1)(a)–(b) 

indicates that the air quality analysis 

needs to cover the pollutants that a new 

major source would have the potential 

to emit in significant amounts and each 

pollutant for which a major 

modification would result in a net 

significant emissions increase. EPA’s 

definition of ‘‘major stationary source,’’ 

‘‘major modification,’’ ‘‘net emissions 

increase’’ and ‘‘significant,’’ each refer 

to emissions of regulated NSR 

pollutants. 40 CFR 51.166(b)(1), (2), (3), 

and (23). Since the applicability of 40 

CFR 51.166(m) cannot be determined 

without reference to these other 

definitions, we construe 40 CFR 

51.166(m) to apply to regulated NSR 

pollutants as well. Michigan’s program 

satisfies the requirements of 40 CFR 

51.166(m), as interpreted by the Agency. 

On May 16, 2008, EPA finalized a 

specific regulation addressing 

implementation of the NSR program for 

PM2.5, which became effective on July 

15, 2008. (73 FR 28321, May 16, 2008). 

Section V.H. of the preamble to the 

regulation discusses the process for 

transitioning State PSD programs to 

address PM2.5. (73 FR 28340, May 16, 

2008). Michigan submitted its PSD 

program for approval to EPA prior to the 

publication of the implementation rule 

on May 16, 2008. The SIP revision that 

we are conditionally approving today 

does not specifically address the EPA 

PM2.5 rulemaking that became effective 

on July 15, 2008. Michigan has assured 

us that it has the authority under its SIP 

provisions to implement the PSD 

program for PM2.5, and that it intends 

to do so. Michigan is currently drafting 

revised regulations to address the PM2.5 

rulemaking. EPA will act on those 

revisions when the State formally 

submits them as SIP revisions. 

Comment B: The commenters 

requested that EPA should not approve 

the SIP revision until it undertakes the 

Section 7 consultation under the 

Endangered Species Act (‘‘ESA’’) to 

determine whether the proposed 

approval of major changes to the State’s 

PSD permit program may affect any 

listed species. In addition, these 

commenters request that EPA retain its 

ESA oversight obligations under the 

Act. 

Response: EPA disagrees with the 

commenters. Recent Supreme Court 

precedent has confirmed that the ESA 

requirements cited in the comments do 

not apply to EPA’s decision to approve 

the PSD rules into a State’s Federally 

authorized CAA program. 

Section 7(a)(2) of the ESA generally 

requires Federal agencies to consult 

with the relevant Federal wildlife 

agencies to ensure that actions they 

authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of Federally listed endangered 

or threatened species, or result in the 

destruction or adverse modification of 

designated critical habitat of such 

species. 16 U.S.C. 1536(a)(2). In 

accordance with relevant ESA 

implementing regulations, this 

requirement applies only to actions in 

which there is discretionary Federal 

involvement or control. 50 CFR 402.03. 

In National Ass’n of Home Builders v. 

Defenders of Wildlife, 127 S. Ct. 2518 

(2007) (Defenders of Wildlife), the 


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Supreme Court examined these 

provisions in the context of EPA’s 

decision to approve a State permitting 

program under the Clean Water Act 

(CWA). In that case, the Court held that 

when a Federal agency is required by 

statute to undertake a particular action 

once certain specified triggering events 

have occurred, there is no relevant 

agency discretion, and thus the 

requirements of ESA Section 7(a)(2) do 

not apply. 127 S. Ct. at 2536. 

With regard to EPA’s transfer of CWA 

permitting authority to a State, the Court 

found that the relevant CWA provision 

mandated that EPA ‘‘shall approve’’ a 

state permitting program if a list of CWA 

statutory criteria are met. Therefore, 

EPA lacked the discretion to deny a 

transfer application that satisfied those 

criteria. Id. at 2531–32. The Court also 

found that the relevant CWA program 

approval criteria did not include 

consideration of endangered or 

threatened species, and stated that 

‘‘[n]othing in the text of [the relevant 

CWA provision] authorizes EPA to 

consider the protection of threatened or 

endangered species as an end in itself 

when evaluating [an] application’’ to 

transfer a permitting program to a State. 

Id. at 2537. Accordingly, the Court held 

that the CWA required EPA to approve 

the state’s permitting program if the 

statutory criteria were met; those criteria 

did not include the consideration of 

ESA-protected species; and thus, 

consistent with 50 CFR 402.03, the nondiscretionary action to transfer CWA 

permitting authority to the state did not 

trigger relevant ESA Section 7 

requirements. 

Similar to the CWA program approval 

provision at issue in Defenders of 

Wildlife, section 110(k)(3) of the CAA 

mandates that EPA ‘‘shall approve’’ a 

SIP submittal that meets applicable 

CAA requirements. 42 U.S.C. 7410(k)(3). 

The CAA provides a list of SIP submittal 

criteria in section 110. See 42 U.S.C. 

7410(a)(2). As was the case with the 

CWA requirements in Defenders of 

Wildlife, the SIP requirements contained 

in section 110 of the CAA do not 

include protection of listed species, and 

Title I, Part C of the CAA does not 

explicitly state that consideration of the 

impacts on listed species is a required 

factor in SIP approval decisions. EPA’s 

action on State SIP submittals is 

governed by section 110 of the Act, 

which unequivocally directs EPA to 

approve State plans meeting applicable 

CAA requirements. 

EPA recognizes that it exercises some 

judgment when evaluating whether a 

SIP submittal meets specific statutory 

criteria. However, as the Supreme Court 

held in Defenders of Wildlife, the use of 

such judgment does not allow the 

Agency ‘‘the discretion to add another 

entirely separate prerequisite’’—such as 

the ESA Section 7(a)(2) consultation 

requirements—to the list of required 

criteria EPA considers when 

determining whether it ‘‘shall approve’’ 

a SIP revision request. 127 S. Ct. at 

2537. Applying the reasoning of 

Defenders of Wildlife, the SIP approval 

criteria contained in the CAA do not 

provide EPA with the discretionary 

authority to consider whether approval 

of SIP revisions may affect any listed 

species. EPA has determined that MDEQ 

has submitted a SIP revision request to 

incorporate the PSD rules that satisfies 

all of the applicable SIP requirements 

contained in section 110 of the CAA. 

Thus, given the Supreme Court 

precedent and applicable regulations 

(see 50 CFR 402.03), EPA is without 

discretion to disapprove or condition 

the State’s SIP revision request based on 

concerns for listed species, and the ESA 

requirements cited by the commenters 

are thus inapplicable to this approval 

action. 

Comment C: Some commenters 

requested assurance that EPA’s approval 

of the PSD revisions would not 

diminish Federal authority pursuant to 

Title V of the CAA to review, object to, 

or deny issuing an operating permit 

where the state has issued a permit 

under its federally approved SIP. 

Response: Following approval of the 

Michigan’s PSD revisions, EPA retains 

its authorities and obligations under 

Title V. 

Comment D: Some commenters 

expressed concern over MDEQ’s 

commitments made in its November 30, 

2007, letter to EPA. Specifically, the 

concerns are related to the definitions of 

‘‘replacement unit’’ and ‘‘potential to 

emit,’’ and the mechanism by which the 

FLM may present to a State a 

demonstration of impacts of air qualityrelated values from proposed sources or 

modifications. The responses to these 

two comments follow (Response D:1 

and Response D:2). 

Response D.1: Regarding the missing 

definition of ‘‘replacement unit,’’ 

Michigan committed in a letter to EPA, 

dated May 17, 2007, to follow the 

Federal definition of ‘‘replacement unit’’ 

(40 CFR 51.166(b)) in its 

implementation of these rules, and to 

add the definition to the state rules in 

a future rulemaking. 

Regarding the definition of the terms 

‘‘potential to emit’’ and ‘‘legally 

enforceable’’ in the Michigan SIP rules, 

commenters requested that MDEQ 

provide to EPA a clear definition of 

these terms. EPA agrees with the 

commenters. 

The MDEQ’s definition of ‘‘potential 

to emit’’ (Michigan Rule R 

336.2801(hh)) follows the Federal 

definition, except instead of ‘‘federally 

enforceable’’ the Michigan rules use the 

more general term ‘‘legally enforceable.’’ 

Michigan has committed, in its letter to 

EPA, dated September 11, 2007, to 

define the term ‘‘legally enforceable’’ to 

mean ‘‘legally and practically 

enforceable by the Administrator, a state 

or local air pollution agency,’’ 

consistent with the Interim Policy dated 

January 22, 1996, and to revise the rule 

to make it consistent with this 

definition. In a subsequent letter to EPA, 

dated November 30, 2007, MDEQ 

committed to add this definition to its 

rules no later than one year after EPA’s 

conditional approval of the State’s PSD 

SIP. A final approval relies on MDEQ’s 

commitment to submit a clear definition 

of ‘‘legally enforceable.’’ 

Comment D.2: The Consolidated 

Commenters requested that EPA deny 

approval of Michigan’s current PSD SIP 

revision until the State promulgates rule 

corrections to ensure that its regulations 

implementing the special requirements 

for sources impacting Class I areas are 

consistent with Federal requirements 

found at 40 CFR 51.166(p). The 

commenters assert that Michigan’s 

current regulation to implement this 

provision (found at Michigan Rule R 

336.2816) diminishes the role of the 

FLM in the State’s permitting process. 

The commenters urge EPA to ensure 

that the State program provides, at a 

minimum, that: The FLM will receive 

timely written notice of proposed PSD 

permits that may affect the FLM’s Class 

I area; the FLM will be provided with 

all relevant information to assess 

anticipated impacts to the Class I area; 

and the State will consult with the FLM 

regarding potential adverse impacts, and 

providing public notice and opportunity 

to comment on any FLM adverse impact 

findings and the State’s response. 

Response D.2: EPA agrees that a 

federally approved SIP must meet the 

minimum requirements set forth in 40 

CFR 51.166(p) which: Requires that a 

PSD permitting authority transmits to 

EPA copies of permit applications and 

related documents for major sources and 

major modifications; provides for a 

process by which a FLM may present 

his or her comments, findings, and 

certifications relating to such draft 

permit applications to the State; and 

provides for a process by which the 

State consults with such FLM. The State 

has committed to incorporating the 

requirements of 40 CFR 51.166(p) into 

its PSD SIP rules via letter to EPA, dated 

November 30, 2007. In order to keep the 

Federally delegated requirements under 


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40 CFR 51.166(p) in place until 

Michigan has revised its rules to add 

these requirements and EPA has 

approved them into the SIP, EPA is 

proposing, in a separate notice, 

disapproval of Michigan Rule R 

336.2816. In that same proposed 

disapproval notice, EPA is also 

proposing in the alternative to approve 

such rules once they are properly 

promulgated and submitted. 

40 CFR 51.166(p) sets out those 

requirements that apply to major 

sources or major modifications that will 

affect Class I areas. This section 

contains both requirements for State 

plans and optional provisions. Pursuant 

to 40 CFR 51.166(p)(3), the State plan 

must provide a mechanism whereby the 

FLM may 

present to the State * * * a demonstration 

that the emissions from the proposed source 

or modification would have an adverse 

impact on the air quality-related values 

(including visibility) of any Federal 

mandatory Class I lands, notwithstanding 

that the change in air quality resulting from 

emissions from such source or modification 

would not cause or contribute to 

concentrations which would exceed the 

maximum allowable increases for a Class I 

area. If the State concurs with such 

demonstration, the reviewing authority shall 

not issue the permit. 40 CFR 51.166(p)(3). 

As submitted, Michigan’s Rule R 

336.2816 did not contain an equivalent 

to this required provision. Additionally, 

EPA sought clarification from the State 

as to how it planned to implement 

certain State rules corresponding to the 

variance provisions contained in 40 CFR 

51.166(p)(4), (5), and (6). 

On November 30, 2007, Michigan 

provided suggested rule clarification 

language to address both the lack of an 

equivalent to 40 CFR 51.166(p)(3) and 

how the State intends to implement the 

variance provisions in 40 CFR 

51.166(p)(4), (5), and (6). Michigan also 

provided its commitment to promulgate 

these changes into its PSD regulations 

within one year of EPA’s action on 

Michigan’s PSD SIP submittal. 

Because the State program currently 

lacks a functional equivalent to 40 CFR 

51.166(p)(3), EPA cannot conditionally 

approve Michigan’s Rule R 336.2816 

without creating a regulatory gap. 

Therefore, by separate notice today, EPA 

is disapproving Michigan’s Rule R 

336.2816, and Michigan will retain 

federal delegation of this provision until 

such time as the State promulgates and 

EPA has approved the corrective rules it 

has proposed in its November 30, 2007 

letter. Retention of the delegated 

program until such time as Michigan 

promulgates a corrective rule will 

ensure that the provisions of 40 CFR 

51.166(p) will continue to apply, 

thereby avoiding any regulatory gap, 

and ensuring full participation of the 

FLM, as appropriate, in State permitting 

decisions. 

The commenters also request that 

EPA provide public notice and 

opportunity for comment on any 

adverse finding made by an FLM, in 

addition to making public the State’s 

decision on such finding. EPA’s 

responsibilities regarding State permit 

actions that may impact Class I areas are 

set forth in Section 165(d) of the CAA, 

42 U.S.C. 7475(d). EPA’s functions 

include providing notice to FLMs of 

permit applications, consulting with 

FLMs regarding the potential impact of 

a proposed source on AQRVs, and 

coordinating with the State regarding 

issuance (or non-issuance) of permits. 

Information developed during this 

process is part of the public docket for 

permit issuance, and as such would be 

available to the public. Additionally, the 

regulations require public notice and 

comment, and the opportunity for a 

public hearing, on State proposed 

permits. Together these provisions 

enable fully informed public 

participation in State permit issuance. 

These provisions apply nationwide, and 

commenters have not shown why more 

should be required from Michigan here. 

Comment E: The commenters asked 

EPA not to approve the PSD SIP until 

MDEQ demonstrates that the current 

fiscal situation of the State government 

and its agencies will not hinder the 

implementation of the PSD program. 

These commenters provide examples of 

current State funding problems, 

including the small portion of the 

State’s overall budget that is devoted to 

environmental protection, the sunset of 

State environmental fee programs, and 

projected shortfalls in the State’s ability 

to fund environmental programs. 

Response: EPA agrees that the CAA 

requires the States to provide the 

‘‘necessary assurances’’ that they are 

able to carry out the implementation of 

SIP requirements through adequate 

staffing and funding. 42 U.S.C. 

7410(a)(2)(E), CAA section 110(a)(2)(E). 

MDEQ already implements the federal 

PSD program within the State. EPA 

finds that a demonstration of current 

fiscal capabilities is not necessary. 

There is no evidence that MDEQ has 

encountered financial difficulties in 

carrying out the PSD program. 

Moreover, because MDEQ is already 

implementing the program based on the 

Federal delegation of authority, these 

rules are not expected to result in 

additional costs for MDEQ. 

The Consolidated Commenters 

enclosed a copy of a September 2007 

Report by the Southeast Michigan 

Council of Governments titled ‘‘Funding 

Environmental Protection in Michigan: 

The Need for Change,’’ which, among 

other things, describes how funding 

sources for environmental protection 

programs in Michigan have shifted their 

priorities. Nevertheless, the overall 

funds available to MDEQ, as portrayed 

in this report, appear to have increased 

slightly. While EPA is aware that 

environmental regulators at the State 

level must make many difficult 

decisions between competing priorities 

in the allocation of available resources, 

EPA cannot conclude on the basis of 

this comment that Michigan is unable to 

fund its PSD program. 

Comment F: The commenters request 

a shorter deadline for State adoption of 

SIP Rules meeting the terms of 

conditional approval (namely, 6 months 

instead of 1 year). 

Response: EPA disagrees with the 

comment. Under section 110(k)(4) of the 

CAA, EPA may conditionally approve a 

SIP revision based on a commitment 

from the State to adopt specific 

enforceable measures by a date certain 

that is no more than one year from the 

date of conditional approval. According 

to Michigan’s rulemaking process, the 

rules have to go through several State 

agencies, such as the Michigan 

Legislature’s Joint Committee on 

Administrative Rules and the State 

Office of Administrative Hearings and 

Rules, and be open for public comments 

for at least 30 days; then after the public 

comment period closes, the state must 

respond to comments. This procedure 

reasonably would take more than 6 

months. In a letter dated November 30, 

2007, MDEQ committed to adopt the 

revised rules, subject to the conditional 

approval, no later than one year after 

EPA’s conditional approval of the 

State’s PSD SIP. This one year 

commitment is reasonable here and the 

final approval relies on this 

commitment. 

Comment 3: Some commenters 

requested that the PSD delegation 

agreement between MDEQ and EPA be 

terminated when EPA issues the final 

approval of PSD program. 

Response: EPA agrees with the 

commenters, with one exception 

(relating to Michigan Rule R 336.2816). 

40 CFR 52.02 and 40 CFR 52.21(a)(1) 

provide that EPA’s delegation will not 

apply at such time as when the State’s 

SIP is approved. In a similar situation to 

Michigan’s, EPA’s recent approval of 

South Dakota’s PSD SIP (72 FR 72617, 

December 21, 2007) also includes a clear 

statement rescinding the prior 

delegation agreement. The one 

exception to the termination of EPA’s 


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delegation of the PSD program in 

Michigan is, as discussed elsewhere in 

this notice, the Federal delegation for 

the requirements at 40 CFR 51.166(p), 

which is to remain in place until an 

equivalent State provision is approved 

into the Michigan SIP. 

Comment 4: One commenter 

requested that EPA explicitly state in 

this notice that parties seeking to appeal 

PSD permits issued by the State under 

a Federally approved program must go 

through procedures contained in 

Michigan’s laws and rules, and not 

appeal through Environmental Appeal 

Board (EAB). 

Response: EPA agrees with the 

commenter, with the exception of those 

provisions Michigan will continue to 

retain as a Federally delegated program 

(See proposed partial disapproval of 

Michigan Rule R 336.2816 pursuant to 

a separate notice published today). For 

permits issued by the State under the 

rules covered by this conditional 

approval, appeals will not be made to 

the EAB; rather, such appeals will be 

subject to the opportunity for review 

and appeal procedures provided under 

the State law. Michigan’s Rule R 

336.2830 is intended to provide a 

parallel appeal procedure to the 

procedure that is currently in place for 

the Federal PSD program in Michigan 

under the regulation at 40 CFR part 124. 

The rule creates a right to an 

administrative hearing before a state 

administrative law judge that is similar 

to the current appeal rights under the 

Federal PSD permitting program. This 

rule was not submitted as part of 

Michigan’s PSD SIP. Therefore, EPA is 

not taking action on Michigan Rule R 

336.2830. However, EPA finds the State 

appeal process sufficient to 

conditionally approve the specified 

parts of the PSD program as submitted. 

An appeal of any permit requirement(s) 

under 40 CFR 51.166(p) would still 

need to be brought before the EAB until 

a replacement State regulation is 

approved into the SIP. Depending on 

other permit issues on appeal, the EAB 

can decide how to best structure such 

appeal. 

Comment 5: One commenter 

expressed concern that the requirements 

of Michigan Rule R 336.2818 (Source 

Obligation) are more stringent than the 

Federal requirements, and requested 

that EPA allow MDEQ to review its 

rules and adopt the new rule in its next 

submittal. The commenter also 

suggested EPA issue a direct final rule 

to approve this aspect of the regulation. 

Response: Michigan Rule R 336.2818 

places specified requirements upon the 

PSD permit applicant, including 

recordkeeping requirements for 

applicants using certain methods for 

determining if a project results in a 

significant emissions increase. 

On December 31, 2002, EPA 

published revisions to the Federal PSD 

and non-attainment NSR regulations. 

These revisions are commonly referred 

to as ‘‘NSR Reform’’ regulations and 

became effective on March 3, 2003. 

These regulatory revisions include 

provisions which require a source to 

follow the recordkeeping and reporting 

requirements in this section if there is 

a ‘‘reasonable possibility’’ that a source 

may exceed the projected actual 

emissions (40 CFR 51.166(r)(6)). The 

‘‘reasonable possibility’’ clause of this 

provision of the Federal rule was 

remanded to EPA in the June 24, 2005, 

D.C. Circuit Court ruling in State of New 

York et al. v. EPA, 413 F.3d 3 (D.C. Cir. 

2005). At the time of Michigan’s PSD 

SIP submittal, EPA had responded to 

the remand order. However, the MDEQ’s 

minor source permitting program— 

Michigan Rule R 336.201—requires this 

information to be submitted for all 

sources as part of a complete Permit To 

Install application before beginning 

actual construction on the proposed 

project (not just where there is a 

‘‘reasonable possibility’’ that the source 

may exceed the projected actual 

emissions). Because this is more 

stringent than the Federal requirement, 

we approve this approach. All other 

requirements of Michigan Rule R 

336.2818 are consistent with 40 CFR 

51.166(r). At this time Michigan has 

made no request to adopt different 

language than what the state already 

requires for this rule. 

V. What Action Is EPA Taking? 

EPA is conditionally approving 

specified revisions to Michigan’s SIP to 

include the State’s PSD construction 

permit program. 

What Is the Effect of Conditional 

Approval? 

Pursuant to section 110(k)(4) of the 

CAA, EPA may conditionally approve a 

portion of a SIP revision based on a 

commitment from the State to adopt 

specific, enforceable measures no later 

than twelve months from the date of 

final conditional approval. The State 

must only provide the rule changes, not 

a new SIP submittal to EPA for 

approval. If the State fails to commit to 

undertake the necessary changes, or 

fails to actually make the changes 

within the twelve month period, EPA 

would subsequently publish a notice in 

the Federal Register providing notice 

and details of such disapproval. EPA is 

not required to separately propose a 

finding of disapproval. If Michigan 

submits final and effective rule 

revisions correcting the deficiencies, as 

discussed above, within one year from 

this conditional approval becoming 

final and effective, EPA will publish a 

subsequent notice in the Federal 

Register to acknowledge conversion of 

the conditional approval to a full 

approval. 

What Is Our Basis for Conditional 

Approval of Michigan’s Rules? 

EPA has identified several 

deficiencies that need to be corrected in 

Michigan’s rules so that the rules are 

approvable. The deficiencies referenced 

above are summarized below. 

Issues regarding definitions: In its 

May 17, 2007, letter to EPA, Michigan 

committed to follow the Federal 

definition of ‘‘replacement unit’’ (40 

CFR 51.166(b)(7)) in its implementation 

of these rules, and to add the definition 

to the state rules in a future rulemaking. 

For the definition of ‘‘potential to emit’’ 

(Michigan Rule R 336.2801(hh)), 

Michigan follows the Federal definition, 

except instead of ‘‘federally 

enforceable,’’ the Michigan rules use the 

more general term ‘‘legally enforceable.’’ 

Michigan has committed, in its 

September 11, 2007 letter to EPA, to 

define the term ‘‘legally enforceable’’ to 

mean ‘‘legally and practically 

enforceable by the Administrator, a 

State or local air pollution agency,’’ 

consistent with the Interim Policy dated 

January 22, 1996. 

Issues regarding FLM authority: The 

State’s current Michigan Rule R 

336.2816 does not include an equivalent 

State provision to 40 CFR 51.166(p), 

which sets out the mechanisms which 

facilitate the participation of the FLM in 

the State’s permitting process for 

purposes of protecting either the 

increment or the AQRVs associated with 

a Class I area from potential impacts 

from a proposed major source or major 

modification. Therefore, this provision 

of the State rule is subject to the 

proposed partial disapproval set forth in 

a separate rulemaking notice. A partial 

disapproval of this section would keep 

the Federal delegation to Michigan in 

place to implement 40 CFR 51.166(p) 

until an equivalent State provision is 

approved into the SIP. The deficiencies 

being addressed in this rulemaking are 

described in more detail in Part III of 73 

FR 1570, January 9, 2008. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, 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). 


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Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves State law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by State law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate, or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified 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) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian Country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. Nevertheless, EPA notified 

Michigan tribal environmental staff for 

the respective Michigan tribes of the 

proposed conditional approval via email 

message of November 29, 2007, and 

invited them to seek more information 

and to submit comments during the 

public notice and comment period for 

the proposed conditional approval. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by November 17, 2008. 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, nor 

will it 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. 

Date: August 25, 2008. 

Lynn Buhl, 

Regional Administrator, Region 5. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart X—Michigan 

■ 2. A new § 52.1188 is added to read 

as follows: 

§ 52.1188 Conditional approval. 

The plan commitments listed below 

were submitted on the dates specified. 

(a) On December 21, 2006, the State 

of Michigan submitted to EPA Michigan 

Air Pollution Control Rules, Part 18, 

Rules R 336.2801 [(a) through (tt) 

[except for (j) and (ff)] to R 336.2819 and 

R 336.2823(1) to (14) (‘‘Part 18’’), for 

inclusion in the SIP. Part 18 relates to 

the PSD permit program of the state of 

Michigan. Revisions to Part 18 were 

adopted by MDEQ on December 4, 2006. 

On January 9, 2008, EPA proposed to 

conditionally approve the PSD SIP rules 

under section 110 of the CAA. On 

September 16, 2008 EPA conditionally 

approved the revisions to Part 18. 

(b) The conditional approval is based 

on the commitment from the State to 

adopt specific enforceable measures by 

a date certain that is no more than 

twelve months from the date of the 

conditional approval. The deficiencies 

that need to be corrected in Michigan’s 

rule so that the rule is approvable 

include two missing definitions. In a 

separate action also published 

September 16, 2008, EPA is proposing 

to disapprove Michigan Rule R 

336.2816, which is also included in the 

State’s December 21, 2006, PSD program 

submission. This rule sets out the 

mechanisms which facilitate the 

participation of the FLM in the State’s 

permitting process for purposes of 

protecting either the increment or the 

AQRVs associated with a Class I area 

from potential impacts from a proposed 

major source or major modification. 

Michigan will retain its Federal 

delegation of authority under 40 CFR 

52.21(p) until such time as the State 

submits promulgated rules equivalent to 

40 CFR 51.166(p) and those rules are 

approved into its SIP. 

(c) In its May 17, 2007, letter to EPA, 

Michigan committed to follow the 

Federal definition of ‘‘replacement unit’’ 

(40 CFR 51.166(b)(7)) in its 

implementation of these rules, and to 

add the definition to the state rules in 

a future rulemaking. For the definition 

of ‘‘potential to emit’’ (Michigan Rule R 

336.2801(hh)), Michigan follows the 

Federal definition, except instead of 

‘‘federally enforceable,’’ the Michigan 

rules use the more general term ‘‘legally 

enforceable.’’ Michigan has committed 

in its September 11, 2007, letter to EPA, 

to define the term ‘‘legally enforceable’’ 

to mean ‘‘legally and practically 

enforceable by the Administrator, a 

state or local air pollution agency,’’ 

consistent with the Interim Policy dated 

January 22, 1996. 

(d) The State must only provide the 

rule changes, not a new SIP submittal to 

EPA for approval. If the State fails to 

actually make the changes within the 

twelve month period, EPA would 

subsequently publish a notice in the 

Federal Register providing notice and 

details of such disapproval. If Michigan 

submits final and effective rule 

revisions correcting the deficiencies, as 


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discussed above, within one year from 

this conditional approval becoming 

final and effective, EPA will publish a 

subsequent notice in the Federal 

Register to acknowledge that Michigan 

has met the criteria of the conditional 

approval and to inform the public about 

the conversion of the conditional 

approval to a full approval. 

[FR Doc. E8–21209 Filed 9–15–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2007–0603; FRL–8713–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Louisiana; Approval of Section 

110(a)(1) Maintenance Plan for the 

1997 8-Hour Ozone Standard for the 

New Orleans Ozone Maintenance Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is approving this 

revision to the Louisiana State 

Implementation Plan (SIP) concerning 

the maintenance plan addressing the 

1997 8-hour ozone standard for the New 

Orleans Ozone Maintenance Area. On 

June 29, 2007, the State of Louisiana 

submitted a maintenance plan for the 

New Orleans Ozone Maintenance Area, 

which includes the parishes of Jefferson, 

Orleans, St. Bernard and St. Charles, 

which ensures continued attainment of 

the 1997 8-hour ozone National 

Ambient Air Quality Standard (NAAQS) 

through the year 2014. This 

maintenance plan meets the statutory 

and regulatory requirements, and is 

consistent with EPA’s guidance. EPA is 

approving the revision pursuant to 

section 110 of the Federal Clean Air Act 

(CAA). On March 12, 2008, EPA issued 

a revised ozone standard. Today’s 

action, however, is being taken to 

address requirements under the 1997 

ozone standard. Requirements for the 

New Orleans area under the 2008 

standard will be addressed in future 

actions. 

DATES: This rule is effective on 

November 17, 2008 without further 

notice, unless EPA receives relevant 

adverse comment by October 16, 2008. 

If EPA receives such comment, EPA will 

publish a timely withdrawal in the 

Federal Register informing the public 

that this rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06– 

OAR–2007–0603, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• EPA Region 6 ‘‘Contact Us’’ Web 

site: http://epa.gov/region6/ 

r6coment.htm. Please click on ‘‘6PD’’ 

(Multimedia) and select ‘‘Air’’ before 

submitting comments. 

• E-mail: Mr. Guy Donaldson at 

donaldson.guy@epa.gov. Please also 

send a copy by e-mail to the person 

listed in the FOR FURTHER INFORMATION

CONTACT section below. 

• Fax: Mr. Guy Donaldson, Chief, Air 

Planning Section (6PD–L), at fax 

number 214–665–7263. 

• Mail: Mr. Guy Donaldson, Chief, 

Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

• Hand or Courier Delivery: Mr. Guy 

Donaldson, Chief, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 1200, 

Dallas, Texas 75202–2733. 

Such deliveries are accepted only 

between the hours of 8 am and 4 pm 

weekdays except for legal holidays. 

Special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2007– 

0603. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or e-mail. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA without going 

through www.regulations.gov your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 am and 

4:30 pm weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 

appointment at least two working days 

in advance of your visit. There will be 

a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal is also available 

for public inspection at the State Air 

Agency listed below during official 

business hours by appointment: 

Louisiana Department of 

Environmental Quality, Public Records 

Center, Room 127, 602 N. Fifth Street, 

Baton Rouge, Louisiana 70821. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Belk, Air Planning Section (6PD– 

L), Environmental Protection Agency, 

Region 6, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733, telephone 

(214) 665–2164, fax number 214–665– 

7263; e-mail address 

belk.ellen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

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

the EPA. 

Outline 

I. Background 

II. Analysis of the State’s Submittal 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Background 

Under section 107 of the 1977 CAA, 

Louisiana’s New Orleans Ozone 

Maintenance Area, which includes the 


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