[Federal Register Volume 64, Number 31 (Wednesday, February 17, 1999)]
[Rules and Regulations]
[Pages 7790-7793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3837]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MI67-02-7275; FRL-6302-3]
Approval and Promulgation of Implementation Plans; Michigan:
Correction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a
correction to the State Implementation Plan (SIP) for the State of
Michigan regarding the State's emission limitations and prohibitions
for air contaminant or water vapor. EPA has determined that Michigan's
air quality Administrative Rule, R336.1901 (Rule 901) was erroneously
incorporated into the SIP. EPA is removing this rule from the
[[Page 7791]]
approved Michigan SIP because the rule does not have a reasonable
connection to the national ambient air quality standards (NAAQS) and
related air quality goals of the Clean Air Act. The intended effect of
this correction to the SIP is to make the SIP consistent with the
requirements of the Clean Air Act, as amended in 1990 (``the Act''),
regarding EPA action on SIP submittals and SIPs for national primary
and secondary ambient air quality standards.
EFFECTIVE DATE: This final rule is effective on March 19, 1999.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
following address: United States Environmental Protection Agency,
Region 5, Air and Radiation Division, 77 West Jackson Boulevard,
Chicago, Illinois 60604. (Please telephone Victoria Hayden at (312)
886-4023 before visiting the Region 5 Office.)
A copy of this SIP revision is available for inspection at the
following location: Office of Air and Radiation (OAR) Docket and
Information Center (Air Docket 6102), room M1500, United States
Environmental Protection Agency, 401 M Street S.W., Washington, D.C.
20460, (202) 260-7548.
FOR FURTHER INFORMATION CONTACT: Victoria Hayden, Environmental
Engineer, Regulation Development Section (AR-18J), Air Programs Branch,
Air and Radiation Division, United States Environmental Protection
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604;
Telephone Number (312) 886-4023.
SUPPLEMENTARY INFORMATION: On May 19, 1998, EPA published a direct
final rule (63 FR 27492) approving the removal of Rule 901 of the
Michigan air quality Administrative Rules from the approved Michigan
SIP pursuant to section 110(k)(6) of the Act. The formal SIP correction
request was submitted by the Michigan Department of Environmental
Quality on January 29, 1998. In the May 19, 1998 direct final
rulemaking, EPA stated that if adverse comments were received on the
final approval within 30 days of its publication, EPA would publish a
document announcing the withdrawal of its direct final rulemaking
action. Because EPA received adverse comments on the direct final
rulemaking within the prescribed comment period, EPA withdrew the May
19, 1998 final rulemaking action to remove Rule 901 from Michigan's
approved SIP. This withdrawal document appeared in the Federal Register
on July 29, 1998 [63 FR 40370]. A companion proposed rulemaking notice
to approve the removal of Rule 901 from Michigan's approved SIP was
published in the Proposed Rules section of the May 19, 1998 Federal
Register (63 FR 27541).
Response to Comments
Several groups submitted letters commenting on the May 19, 1998
direct final rulemaking that were both opposed to and in favor of the
removal of Rule 901 from the State of Michigan's approved SIP. About
half of the letters received were from community organizations and
environmental organizations from across the State that urged EPA to
maintain Rule 901 as part of Michigan's approved SIP stating its
importance to the citizens of Michigan's health, welfare and quality of
life. Other letters received, largely representing industry, supported
EPA's May 19, 1998 direct final rulemaking to remove Rule 901. EPA
evaluated the comments, which have been incorporated into the docket
for the rulemaking. The following discussion summarizes and responds to
the comments received.
Comment: It is important to have broad environmental statutes like
Rule 901 in the SIP to protect local air quality.
Response: Michigan Rule 901 is a general rule that prohibits the
emission of an air contaminant which is injurious to human health or
safety, animal life, plant life of significant economic value,
property, or which causes unreasonable interference with the
comfortable enjoyment of life and property. It is a State rule that has
been primarily used to address odors and other local nuisances.
Historically, the rule has not been used for purposes of attaining or
maintaining any of the National Ambient Air Quality Standards (NAAQS).
In accordance with the Clean Air Act, only rules pertaining to the
attainment and maintenance of the NAAQS can be lawfully required as
part of a SIP.
Comment: Communities need the assistance of federal agencies to
challenge State and local authorities to do all that is in their power
to reduce pollution in local neighborhoods. One commentor references a
particular neighborhood that suffers from heavy odors from surrounding
industrial and municipal sources.
Response: The Clean Air Act does not authorize the EPA to
specifically require States to adopt rules to address odors and
nuisances as part of their SIPs. Only rules that have a reasonable
connection to the NAAQS and related air quality goals of the Clean Air
Act are required. Rule 901 was never submitted for purposes of
attaining or maintaining the NAAQS and was, therefore, incorrectly
submitted to EPA for inclusion in the SIP. Although Rule 901 will be
removed from the SIP, Rule 901 will remain as a State rule and still be
enforceable at the State level. In addition, Michigan has submitted,
and EPA has approved, regulations to attain the NAAQS under the Clean
Air Act. These regulations are directly related to protecting human
health and will continue to be federally enforceable.
Comment: Rule 901 is the only rule that provides basis for
enforcement actions related to odor and nuisance offenses. A commentor
hopes that the removal of Rule 901 results in a substitute rule that is
more relevant and can be readily enforced by the State. Residents of
the State of Michigan should have the protection from odors, fumes in
high concentrations, blowing dust, and other negative air quality
issues that the local and county municipal governments cannot or are
unable to enforce because of the cost or because of the lack of
expertise or jurisdiction.
Response: As stated previously, the Clean Air Act does not
authorize EPA to specifically require the State to develop rules to
address odor and nuisance offenses. The Clean Air Act does require
States to develop rules to protect public health and welfare. If a
pollution source or combination of sources is presenting an imminent
and substantial endangerment to public health or welfare, or the
environment, the State of Michigan, as well as the EPA, have the
ability under section 303 of the Act to take action against that
source. Because the Clean Air Act does not require State rules to
address odors and nuisances, EPA is approving the removal of Rule 901
from Michigan's approved SIP.
Final Action
The EPA is approving the removal of Rule 901 of the Michigan air
quality Administrative Rules from the approved Michigan SIP pursuant to
section 110(k)(6) of the Act.
Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under Executive Order 12866, entitled
``Regulatory Planning and Review.''
B. Executive Order 12875
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local,
or tribal
[[Page 7792]]
government, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by those governments. If
EPA complies by consulting, Executive Order 12875 requires EPA to
provide to the Office of Management and Budget a description of the
extent of EPA's prior consultation with representatives of affected
state, local, and tribal governments, the nature of their concerns,
copies of written communications from the governments, and a statement
supporting the need to issue the regulation. In addition, Executive
Order 12875 requires EPA to develop an effective process permitting
elected officials and other representatives of state, local, and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not impose any enforceable duties on these entities.
Accordingly, the requirements of section 1(a) of Executive Order 12875
do not apply to this rule.
C. Executive Order 13045
Executive Order 13045, entitle ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that the EPA determines (1) is
``economically significant,'' as defined under Executive Order 12866,
and (2) the environmental health or safety risk addressed by the rule
has a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effect of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to Executive Order 13045 because it
is not an economically significant regulatory action as defined by
Executive Order 12866, and it does not address an environmental health
or safety risk that would have a disproportionate effect on children.
D. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments. If EPA complies by
consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal governments ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the communities
of Indian tribal governments. This action does not involve or impose
any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because it removes requirements
from the SIP. Therefore, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, the EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires the EPA to establish a
plan for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
This is an action to remove rules from the Michigan SIP.
Accordingly, no additional costs to State, local, or tribal
governments, or to the private sector, result from this action.
G. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
H. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by April 19, 1999. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review, nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Reporting and
recordkeeping.
Authority: 42 U.S.C. 7401-7671q.
Dated: February 2, 1999.
David A. Ullrich,
Acting Regional Administrator.
40 CFR Part 52, is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C 7401-7671q.
Subpart X--Michigan
2. Section 52.1174 is amended by adding paragraph (q) to read as
follows:
[[Page 7793]]
Sec. 52.1174 Control strategy: Ozone.
* * * * *
(q) Correction of approved plan--Michigan air quality
Administrative Rule, R336.1901 (Rule 901)--Air Contaminant or Water
Vapor, has been removed from the approved plan pursuant to section
110(k)(6) of the Clean Air Act (as amended in 1990).
[FR Doc. 99-3837 Filed 2-16-99; 8:45 am]
BILLING CODE 6560-50-P
