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E-M:/ EPA dismisses enviro comments on Rule 901



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Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>
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Michigan's Rule 901 general duty clause is no longer part 
of the Michigan State Implementation Plan under the Clean 
Air Act....    so it won't be federally enforceable in title V 
operating permits   and...  the Engler Administration will 
be free to repeal it if it chooses to do so [let's remake
Michigan in the image of Texas, Ohio and Lousiana]

Rule 901 says that no one can emit air pollution which 
"interferes with the comfortable enjoyment of life and 
property" or which adversely effects health.

Note EPA minimized the children's health argument in
its notice.....



Date: Wed, 17 Feb 1999 12:38:07 -0500 (EST)
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Subject: Approval and Promulgation of Implementation Plans; 
X-Listprocessor-Version: 6.0c -- ListProcessor by Anastasios Kotsikonas
X-Comment: U.S. EPA FEDERAL REGISTER AIR documents

[Federal Register: February 17, 1999 (Volume 64, Number 31)]
[Rules and Regulations]               
[Page 7790-7793]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17fe99-12]

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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

[[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




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Alex J. Sagady & Associates        Email:  ajs@sagady.com
Environmental Consulting and Database Systems
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