Approval and Promulgation of Implementation Plans; Michigan: Correction

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.

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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

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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:

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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]

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