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E-M:/ EPA bumping Michigan nuisance rule from State Implementation Plant

Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>

In this Federal Register Notice, the State of Michigan petitions U. S. EPA to
remove Rule 901 from the federally approved State Implementation Plant for 
the control of air pollution in Michigan.   Rule 901 is the rule that
prohibits air 
pollution which interferes with the comfortable enjoyment of life and property
and which adversely affects health.

Could this be the first step in a proposed Michigan repeal of Rule 901?????
....another step in Russ Harding's campaign to make Michigan environmental
protection programs fit the Louisiana/Texas/Indiana/Ohio mold??

Or is this being done to keep Rule 901 from being federally enforceable in 
proposed operating permits under the Federal Clean Air Act???

Rule 901 is widely used by citizens to claim violations concerning odors
and air pollution nuisances....

Note it was Michigan that initiated the proposed removal from the Federal 

Any person can stop this direct final rule  by filing an adverse comment by
June 18, 1998, although the comment should lay out a detailed basis why
Rule 901 ought to be part of the federal implementation plan.

Alex Sagady


[Federal Register: May 19, 1998 (Volume 63, Number 96)]
[Rules and Regulations]               
[Page 27492-27494]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]



40 CFR Part 52

[MI67-01-7275; FRL-6003-6]

Approval and Promulgation of Implementation Plans; Michigan

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.


SUMMARY: Environmental Protection Agency (EPA) is promulgating 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 this rule 
was erroneously incorporated into the SIP. EPA is removing this rule 
from the 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.

DATES: This rule is effective on July 20, 1998 unless the Agency 

[[Page 27493]]

relevant adverse comments by June 18, 1998. Should the Agency receive 
such comments, it will publish a timely withdrawal in the Federal 
Register informing the public that this rule will not take effect.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
following location: 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.)

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) 


I. Correction to SIP

    In a letter dated January 29, 1998, the Michigan Department of 
Environmental Quality raised the issue of whether Michigan's air 
quality Administrative Rule, R336.1901 (Rule 901) had a reasonable 
connection to the NAAQS-related air quality goals of the Act, and 
whether it properly was approved into the Michigan SIP. 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. In 
the January 29, 1998 letter, Michigan states that Rule 901 is a State 
rule that has been primarily used to address odors and other local 
nuisances. According to the State, Rule 901 historically has not been 
used to attain nor maintain any NAAQS nor to satisfy any other 
provision of the Act and, therefore, does not belong in the SIP. EPA, 
pursuant to section 110(k)(6), is agreeing to correct the SIP since 
Rule 901 is not reasonably connected to the NAAQS-related air quality 
goals of the Act.

    Section 110(k)(6) of the amended Act provides: Whenever the 
Administrator determines that the Administrator's action approving, 
disapproving, or promulgating any plan or plan revision (or part 
thereof), area designation, redesignation, classification, or 
reclassification was in error, the Administrator may in the same 
manner as the approval, disapproval, or promulgation revise such 
action as appropriate without requiring any further submission from 
the State. Such determination and the basis thereof shall be 
provided to the State and public.

Since the State of Michigan's Rule 901 has no reasonable connection to 
the NAAQS-related air quality goals of the Act, and since the State has 
requested that EPA remove this rule from the approved SIP, EPA has 
found the approval of this State rule was in error. Consequently, EPA 
is removing Rule 901 of the Michigan air quality Administrative Rules 
from the approved Michigan SIP pursuant to section 110(k)(6).

II. EPA Final Rulemaking Action

    The EPA is removing Rule 901 of the Michigan air quality 
Administrative Rules from the approved Michigan SIP pursuant to section 
110(k)(6) of the Act.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial amendment and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This rule will be effective July 
20, 1998, without further notice unless the Agency receives relevant 
adverse comments by June 18, 1998.
    If the EPA receives such comments, then EPA will publish a timely 
withdrawal of the final rule and informing the public that the rule 
will not take effect. All public comments received will then be 
addressed in a subsequent final rule based on the proposed rule. The 
EPA will not institute a second comment period on the proposed rule. 
Only parties interested in commenting on the proposed rule should do so 
at this time. If no such comments are received, the public is advised 
that this action will be effective on July 20, 1998 and no further 
action will be taken on the proposed rule.

III. Administrative Requirements

A. Executive Order (E.O.) 12866

    The Office of Management and Budget has exempted this regulatory 
action from E.O. 12866 review.

B. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, EPA may certify 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 government entities with jurisdiction over populations 
of less than 50,000.
    In this action, EPA is removing certain prohibitions from the 
federally enforceable SIP. Therefore, because EPA is not imposing any 
new requirements, the Administrator certifies that it does not have a 
significant impact on any small entities affected. Moreover, due to the 
nature of the Federal-State relationship under the Act, preparation of 
a flexibility analysis would constitute Federal inquiry into the 
economic reasonableness of state action. The Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v. EPA, 
427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

D. 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.
    EPA has determined that this action does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either state, local, or tribal governments in the aggregate, or to the 
private sector. This Federal action removes from the federally 
enforceable SIP certain prohibitions on the emission of air 
contaminants, and imposes no new requirements. Accordingly, no 
additional costs to state, local, or tribal governments, or to the 
private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of the rule in

[[Page 27494]]

today's Federal Register. This rule is not a ``major'' rule as defined 
by 5 U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 20, 1998. 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 

    Dated: April 8, 1998.
Michelle D. Jordan,
Acting Regional Administrator, Region 5.

    40 CFR part 52, is amended as follows:


    1. The authority citation for Part 52 continues to read as follows:

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

Subpart X-Michigan

    2. Section 52.1174 is amended by adding paragraph (q) to read as 

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. 98-13295 Filed 5-18-98; 8:45 am]

NEW EMAIL ADDRESS!!!            ajs@sagady.com
Alex J. Sagady & Associates        Email:  ajs@sagady.com
Environmental Consulting and Database Systems
PO Box 39  East Lansing, MI  48826-0039  
(517) 332-6971 (voice); (517) 332-8987 (fax)

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