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E-M:/ More on PM in Michigan

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

Given what has gone on in the last 35 years with
particulate air pollution in Michigan, this is a sentinel event.

Federal Register: July 10, 2002 (Volume 67, Number 132)]
[Rules and Regulations]
[Page 45635-45637]
 >From the Federal Register Online via GPO Access [wais.access.gpo.gov]


40 CFR Part 81
[MI79-01-7288a; FRL-7242-8]

Designation of Areas for Air Quality Planning Purposes; Deletion
of Total Suspended Particulate Designations in Michigan

AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.


SUMMARY: In this action EPA is deleting Michigan attainment status
designations (attainment, unclassifiable and nonattainment) affected by
the original national ambient air quality standards (NAAQS) for
particulate matter measured as total suspended particulate (TSP). On
June 3, 1993 EPA published a final rulemaking action revising the
prevention of significant deterioration (PSD) particulate matter
increments, so that the increments are measured in terms of particulate
matter with an aerodynamic diameter less than 10 microns (PM). Section
107(d)(4)(B) of the Clean Air Act (Act) authorizes EPA to eliminate all
area TSP designations once the increments for PM become effective. The
June 3, 1993 document, which became effective on June 3, 1994, also
established the method by which EPA deletes such TSP designations.

DATES: This ``direct final'' rule is effective September 9, 2002,
unless EPA receives written adverse or critical comments by August 9,
2002. If adverse comments are received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.

ADDRESSES: Send written comments to Carlton T. Nash, Chief, Regulation
Development Section, Air Programs Branch (AR-18J), United Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
(We recommend that you telephone Christos Panos, at (312) 353-8328,
before visiting the Region 5 Office.)
     A copy of this redesignation is available for inspection at the
Office of Air and Radiation (OAR) Docket and Information Center (Air
Docket 6102), United States Environmental Protection Agency, Ariel Rios
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, (202)

FOR FURTHER INFORMATION CONTACT: Christos Panos, 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,
(312) 353-8328.

SUPPLEMENTARY INFORMATION: This Supplementary Information section is
organized as follows:

A. What Action Is EPA Taking?
B. What Is the Background for This Action?
C. Why Can We Approve This Request?

A. What Action Is EPA Taking?

     We are deleting from the list of area designations in 40 CFR part
81, all of the designations for TSP in the state of Michigan
(Sec. 81.323). Area designations which indicate the attainment status
of each affected area with respect to the PM NAAQS already exist, and
the TSP area designations are no longer needed.

B. What Is the Background for This Action?

     In 1971, EPA promulgated primary and secondary NAAQS for
particulate matter to be measured as TSP. Section 107(d) of the 1977
Amendments to the Act authorized each State to submit to the
Administrator a list identifying the attainment status designations
(attainment, unclassifiable and nonattainment) for TSP areas in the
state. In 1978, EPA published the original list of all area
designations pursuant to section 107(d)(2) (commonly referred to as
``section 107 areas''), including those designations for TSP, in 40 CFR
part 81.
     One of the purposes stated in the Act for the section 107 areas is
for implementation of the statutory requirements of air quality PSD.
The PSD provisions of part C of the Act generally apply in all section
107 areas that are designated attainment or unclassifiable (40 CFR
52.21(i)(3)). Under the PSD program, States must ensure that emissions
from major stationary sources are controlled sufficiently by applying
the best available control technology. Also, it must be shown that such
controlled emissions from the new or modified source will not cause or
contribute to air pollution that violates the NAAQS. Moreover, the air
quality in an attainment or unclassifiable area is not allowed to
deteriorate beyond

[[Page 45636]]

prescribed maximum allowable increases in pollutant concentrations,
referred to as ``increments.''
     On July 1, 1987 (52 FR 242634), EPA revised the particulate matter
NAAQS, replacing the TSP indicator with the PM indicator. On the same
date, EPA promulgated final regulations under 40 CFR part 51 for State
implementation of the revised NAAQS (52 FR 24672). In the preamble to
that action, EPA announced that, because of the importance of the
section 107 area designations to the applicability of the TSP
increments, it would retain the TSP designations beyond the date on
which EPA approves a State's revised PM State Implementation Plan
(SIP). This would protect the applicability of the TSP increments until
a PM increment system could be established.
     The 1990 Amendments to the Act contained several pertinent
provisions relating to or affecting the TSP area designations. Under
section 107(d)(4)(B) of the amended Act, Congress established by
operation of law the first nonattainment area designations for PM, and
mandated that areas not initially defined as nonattainment are
considered to be unclassifiable. Moreover, section 107(d)(4)(B)
provided that any designation for particulate matter (measured in terms
of TSP) that the Administrator promulgated prior to the date of
enactment of the 1990 Amendments shall remain in effect for purposes of
implementing the maximum allowable concentrations of particulate matter
(measured in terms of TSP) increments until the Administrator
determines that such designation is no longer necessary for that

C. Why Can We Approve This Request?

     On June 3, 1993 (58 FR 31622), under the authority of section
166(f) of the Act, EPA published the final rulemaking replacing the TSP
increments with equivalent PM increments. As a result, the PSD
increments and NAAQS will be measured by the same indicator. As stated
at 58 FR 31635, for States already having delegated authority to
implement the Federal PSD regulations ``EPA will eliminate the TSP
designations when the PM increments become effective under Sec. 52.21
on June 3, 1994.'' The EPA has delegated to the state of Michigan the
authority to implement the PSD program. The delegation agreement
provides for automatic adoption of the revised PM increments once the
increments become effective.

Final Action

     Because TSP designations are no longer necessary, as described
above, and the PSD regulations contained in 40 CFR 52.21 (the Federal
PSD program) govern the review and approval of permits to construct and
operate major stationary sources in Michigan, EPA is taking action to
delete all TSP area designations in the state of Michigan.
     The EPA is publishing this action without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the state plan if relevant adverse
comments are filed. This rule will be effective September 9, 2002
without further notice unless we receive relevant adverse written
comments by August 9, 2002. If we receive such comments, we will
withdraw this action before the effective date by publishing a
subsequent document that will withdraw the final action. We will then
address all public comments received in a subsequent final rule based
on the proposed action. The EPA will not institute a second comment
period. Any parties interested in commenting on this action should do
so at this time. If we do not receive any comments, this action will be
effective September 9, 2002.

Administrative Requirements

     Under Executive Order 12866, ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993), this action is not a ``significant
regulatory action'' and therefore is not subject to review by the
Office of Management and Budget. For this reason, this action is also
not subject to Executive Order 13211, ``Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001). This action merely approves state law as meeting
federal requirements and imposes no additional requirements beyond
those imposed by state law. Accordingly, the Administrator certifies
that this rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing
requirements under state law and does not impose any additional
enforceable duty beyond that required by state law, it does not contain
any unfunded mandate nor does it significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4).
     This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the federal government and Indian tribes, or
on the distribution of power and responsibilities between the federal
government and Indian tribes, as specified by Executive Order 13175,
``Consultation and Coordination with Indian Tribal Governments'' (65 FR
67249, November 9, 2000). This action also does not have federalism
implications because it will not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132,
``Federalism'' (64 FR 43255, August 10, 1999). This action merely
approves a state rule implementing a federal standard, and does not
alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This rule also is
not subject to Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it is not a significant regulatory action under
Executive Order 12866.
     Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTA), 15 U.S.C. 272, requires federal agencies to use
technical standards that are developed or adopted by voluntary
consensus to carry out policy objectives, so long as such standards are
not inconsistent with applicable law or otherwise impracticable. In
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the Act. Absent a prior
existing requirement for the state to use voluntary consensus
standards, EPA has no authority to disapprove a SIP submission for
failure to use such standards, and it would thus be inconsistent with
applicable law for EPA to use voluntary consensus standards in place of
a SIP submission that otherwise satisfies the provisions of the Act.
Therefore, the requirements of section 12(d) of the NTTA do not apply.
     As required by section 3 of Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this rule, EPA has taken the necessary
steps to eliminate drafting errors and ambiguity, minimize potential
litigation, and provide a clear legal standard for affected conduct.
EPA has complied with Executive Order 12630 (53 FR 8859, March 15,
1988) by examining the takings implications of the rule in accordance
with the ``Attorney General's Supplemental Guidelines for the
Evaluation of Risk and Avoidance of Unanticipated

[[Page 45637]]

Takings'' issued under the executive order, and has determined that the
rule's requirements do not constitute a taking. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
     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. 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.
     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 September 9, 2002. 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 81

     Environmental protection, Air pollution control, National parks,
Wilderness areas.

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

     Dated: June 24, 2002.
Bharat Mathur,
Acting Regional Administrator, Region 5.

     Accordingly, 40 CFR part 81 is amended as follows:


     1. The authority citation for part 81 continues to read as follows:

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

Sec. 81.323  [Amended]

     2. In Sec. 81.323 Michigan, delete the table (including the title
line) entitled ``Michigan--TSP''.

[FR Doc. 02-17240 Filed 7-9-02; 8:45 am]

Alex J. Sagady & Associates  http://my.voyager.net/~ajs/sagady.pdf

Environmental Enforcement, Technical Review, Public Policy and
Communications on Air, Water and Waste/Community Environmental Protection

PO Box 39,  East Lansing, MI  48826-0039
(517) 332-6971; (517) 332-8987 (fax); ajs@sagady.com

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