[Federal Register Volume 64, Number 216 (Tuesday, November 9, 1999)]
[Proposed Rules]
[Pages 61046-61051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29303]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MI23-01-6258; FRL-6472-6]
Approval and Promulgation of State Implementation Plans; Michigan
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The United States Environmental Protection Agency (USEPA) is
proposing to disapprove revisions to the State of Michigan's New Source
Review (NSR) State Implementation Plan (SIP). The Michigan Department
of Environmental Quality (MDEQ) submitted these revisions on November
11, 1993; May 16, 1996; April 3, 1998; and August 20, 1998. MDEQ
submitted some of these revisions to meet the requirements of the Clean
Air Act (CAA) amendments of 1990. Because these revisions are required
under the CAA, a final disapproval would constitute a disapproval under
section 179(a)(2) of the CAA. Pursuant to section 179(a) of the CAA,
the State of Michigan has up to 18 months after a final disapproval to
correct the deficiencies that are the subject of the disapproval before
USEPA must impose sanctions.
DATES: Comments on this proposed rule must be received before December
9, 1999.
[[Page 61047]]
ADDRESSES: Send written comments to: Robert Miller, Chief, Permits and
Grants Section (MI/MN/WI), Air Programs Branch (AR-18J), United States
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
Copies of the proposed SIP revision and the USEPA's analysis are
available for inspection at the following location: United States
Environmental Protection Agency, Region 5, Air and Radiation Division,
77 West Jackson Boulevard, Chicago, Illinois 60604. (Please telephone
Eaton Weiler at (312) 886-6041 before visiting the Region 5 Office.)
FOR FURTHER INFORMATION CONTACT: Eaton Weiler or Laura Hartman,
Environmental Engineers, Permits and Grants 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) 886-6041 or (312) 353-5703.
SUPPLEMENTARY INFORMATION:
I. Background
A. Introduction
The CAA mandates that states develop NSR programs for the
construction and modification of stationary sources of air pollutants.
See CAA sections 110(a)(2)(C), 165, 172, and 173. NSR programs are
necessary under the CAA to help attain and maintain the National
Ambient Air Quality Standards as well as to prevent significant
degradation of air quality. NSR programs help achieve this goal by
requiring owners and operators of new and modified sources of air
pollutants to apply appropriate emissions control technology to sources
at the time of construction. Furthermore, these programs achieve this
goal by allowing the public an opportunity to review and comment on the
effects of emissions on air quality from new and modified sources of
air pollution prior to construction.
The CAA mandates that states develop NSR programs and submit them
to the USEPA for approval into the SIP. The requirements for an
approvable NSR program are laid out in the CAA and 40 Code of Federal
Regulations (CFR) sections 51.160 to 51.166.
B. Current NSR SIP Submittals
The USEPA has not approved any revisions to the State's NSR SIP
since January 27, 1982 (47 FR 3764). Since 1982, Michigan has submitted
six rules packages to the USEPA for approval into the SIP. Michigan
submitted three packages in 1993, one in 1996, and two in 1998. Each of
the rules packages is identified in the table below by the date the
rules package went into effect in the State (State Effective Date), and
the date the State submitted the rules package to the USEPA (Submittal
Date). Bold indicates the latest revision to the particular rule that
is before USEPA for review.
----------------------------------------------------------------------------------------------------------------
State
Rules package (RP) effective date Submittal date Rules submitted 336.1xxx
----------------------------------------------------------------------------------------------------------------
1............................................. 4/20/89 11/12/93 107, 121, 240, 241.
2............................................. 4/17/92 11/12/93 102, 106, 109, 112, 115, 118,
120, 123, 201, 283.
3............................................. 11/18/93 11/12/93 101, 103, 104, 105, 113, 114,
116, 119, 220, 278, 279, 280,
281, 282, 284, 285, 286, 287,
288, 289, 290.
4............................................. 7/26/95 5/16/96 101, 103, 113, 116, 118, 119,
123, 201, 205, 208(RES), 209,
219, 278, 279, 280, 281, 282,
283, 284, 285, 286, 287, 288,
289, 290.
5............................................. 12/12/96 4/3/98 116(g), 116(m), 118(g), 119(b),
119(q), 201a, 205.
6............................................. 6/13/97 8/20/98 118, 122, 278, 283, 284, 285,
286, 287, 290.
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C. USEPA Requirements for Disapproval
Under section 110(k)(3) of the CAA, the USEPA may fully approve or
disapprove a state submittal. Where portions of the state submittal are
separable, the USEPA may approve portions of the submittal that meet
the requirements of the CAA, and disapprove the portions of the
submittal that do not meet the requirements of the CAA. See 57 FR 13566
(April 16, 1992). However, in this context, separable means that the
USEPA may not partially disapprove a portion of a SIP submittal if the
effect of the disapproval would make the approved portion of the SIP
submittal more stringent than the state intended. In this proposed
action, any partial disapproval of Michigan's NSR SIP submittal would
make the State's entire NSR SIP program more stringent than the State
intended. Therefore, the elements of the Michigan NSR program discussed
below that do not meet the requirements of the CAA make the entire SIP
submittal disapprovable.
II. Evaluation of State Submittals
Following below is a discussion of the portions of the State's NSR
SIP submittals that USEPA is proposing as not meeting the requirements
of the CAA. For each section, the requirements of the CAA and its
implementing regulations are outlined followed by an analysis of why
the State's submittal does not meet the requirements of the CAA.
A. Public Participation
The provisions of 40 CFR 51.161 require the State to implement
specific public participation procedures. These procedures require the
State to notify, inform, and invite comment from the public on all new
and modified sources of air pollution subject to the NSR program.
However, as discussed in a proposal to amend the federal operating
permit program, 60 FR 45530, 45549 (August 31, 1995), USEPA believes
that a state may exempt from public review certain categories of
changes based upon de minimis or administrative necessity grounds, in
accordance with the criteria set out in Alabama Power Co. v. Costle,
636 F.2d 323 (D.C. Cir. 1979).
Michigan rule 336.1205(3) requires public participation only for
NSR sources that are major or major modifications, or limit their
potential to emit to greater than 90 percent of the major or major
modification thresholds. Under this provision, a source could have
actual emissions of over 200 tons per year and not be subject to any
public participation procedures. While this limitation may be
acceptable if adequately justified, Michigan has not explained how the
90 percent threshold meets the de minimis criteria. Because Michigan
has not provided an adequate explanation of why construction or
modification of sources resulting in emissions of less than 90 percent
of the new source review thresholds should not require public
participation under the NSR program, the USEPA is proposing disapproval
of Michigan Rule 336.1205(3).
Furthermore, Michigan rule 336.1205(3) incorrectly cites section
5h(3) instead of 5511(3) of the Michigan Act 451, part 55. Although the
State
[[Page 61048]]
corrected this citation error in a State rulemaking effective July 2,
1998, it has not yet submitted the correction to USEPA for approval
into the SIP.
B. Voiding of NSR Permits (Supersession)
As recently communicated in a letter from John S. Seitz to STAPPA/
ALAPCO dated May 20, 1999, it is the USEPA's position that NSR permits
may not be voided, superseded, or otherwise replaced by permits issued
pursuant to Title V of the CAA Amendments of 1990. All terms and
conditions of NSR permits must be independently enforceable under Title
I of the CAA Amendments of 1990. While Title V permits must incorporate
and record permit terms and conditions from NSR permits, Title V may
not eliminate their independent enforceability and existence.
Michigan rule 336.1201(6) automatically voids the NSR permit when
the ``appropriate'' terms and conditions are incorporated into a Title
V permit. Therefore, USEPA is proposing to disapprove this rule.
C. Construction Before Permit Issuance
Pursuant to CAA sections 110(a)(2)(C), 165, 172, 173, and their
implementing regulations, the State is required to develop a NSR
program, under which a source shall not begin actual construction of a
major source or major modification to a major source unless the source
has obtained a NSR permit. Furthermore, pursuant to 40 CFR 51.165(a)(1)
the State must adopt the federal definition of ``begin actual
construction,'' or a definition that is demonstrably more stringent.
The federal definition includes any construction of a permanent nature,
such as foundations, pipework, building supports, and permanent storage
structures. 40 CFR 51.165(a)(1)(xv). Michigan has not adopted and
submitted for USEPA approval a definition of ``begin actual
construction'' which is identical to or more stringent than the federal
definition. Additionally, Michigan rule 336.1201(2) allows sources to
begin phases of construction, including foundations and associated
structures, before issuance of a NSR permit so long as it is not
prohibited by the CAA. As stated above, the CAA prohibits construction
of a major source or major modification to a major source before NSR
permit issuance. Moreover, the CAA and its implementing regulations
require the State to adopt provisions prohibiting construction before
permit issuance. Michigan rule 336.1201(2) contradicts itself, and is
contrary to the requirements of the CAA and its implementing
regulations. Therefore, USEPA is proposing to disapprove Michigan rule
336.1201(2).
Michigan rule 336.1202 allows the MDEQ to waive the requirement for
any source to obtain an NSR permit before beginning construction. As
stated above, the CAA and its implementing regulations prohibit
construction of major sources or major modifications to major sources
without a preconstruction permit. Further, section 110(a)(2) of the CAA
requires states to regulate the construction and modification of any
stationary source as necessary to assure that the national ambient air
quality standards are achieved. Similarly, 40 CFR 51.160(b) provides
that a state must prevent the construction or modification of a source
if it will result in a violation of applicable portions of the control
strategy or interfere with the attainment or maintenance of a national
ambient air quality standard. Therefore, Michigan may provide for a
waiver from the preconstruction requirements of the CAA for minor
sources if the waiver provisions include procedures to ensure that the
source receiving the waiver is a ``true minor,'' that is, a source
whose potential to emit is below the threshold for a major source or
the potential to emit of the modification is below the major
modification threshold without consideration of any limitations on
emissions, and the state can verify that the construction or
modification of the source will neither interfere with attainment or
maintenance of the national ambient air quality standard nor result in
a violation of applicable portions of the control strategy.
USEPA, in the past, mistakenly had approved a prior version of
Michigan rules 336.1201(2) and 336.1202 into the SIP. Because the
currently approved SIP rules do not comply with the requirements of the
CAA, the USEPA is planning to issue a SIP call pursuant to section
110(k)(5) of the CAA. Section 110(k)(5) of the CAA allows the USEPA to
require a revision to the SIP upon a finding that the currently
approved SIP does not meet the requirements of the CAA. A final finding
under section 110(k)(5) would allow the State up to 18 months to
correct the deficiency.
D. Directors Discretion Exemption From NSR Permitting
Under Michigan rule 336.1279, a source is exempt from NSR
permitting at the MDEQ's discretion where the source is not major or
does not have actual emissions above the significance levels. CAA
section 110(a)(2)(C) and 40 CFR 51.160(a) require the State to develop
legally enforceable procedures to review new and modified sources.
Furthermore, 40 CFR 51.160(e) requires the State to identify the types
and sizes of sources subject to review under the State's NSR program.
Exempting sources at the director's discretion does not identify the
sources subject to review, and, therefore, is disapprovable. Because
Michigan rule 336.1279 exempts sources from all review procedures
without prior identification and approval of the exemption criteria
into the SIP, USEPA is proposing to disapprove the rule.
E. Miscellaneous Exemptions From NSR Permitting
Michigan rules 336.1280 to 336.1290 significantly relax the types
and sizes of sources that must obtain a NSR permit. While these
exemptions may be acceptable, the State must demonstrate why these
sources need not be subject to review in accordance with the Alabama
Power de minimis or administrative necessity criteria. Such a
demonstration may include: (1) An analysis of the types and quantities
of emissions from exempted sources, and (2) an analysis which shows
that exempting such facilities from permitting review will not
interfere with maintenance of the NAAQS or applicable control strategy,
and otherwise fulfills the purposes of the minor NSR regulations.
As part of the above demonstration, the State must require each
exempted emissions unit with a potential for sizeable emissions to keep
appropriate compliance records to verify that the emissions unit meets
the specific exemption criteria, and to verify that the construction or
modification of the emissions unit did not trigger major new source
regulations or other exclusions from the exemptions as listed in
Michigan rule 336.1278.
At a minimum, sources with sizeable potential emissions which are
assuming exemptions must keep: (1) Records of the date of equipment
installation and a description of the emissions unit, (2) records to
show the emissions unit does not violate any of the rule 336.1278
exclusions from the exemptions, and (3) records to show that the
emissions unit meets the specific exemption criteria outlined in the
rule.
Michigan rule 336.1285 exempts sources from obtaining NSR permits
where the quantity and nature of the emissions increases are not
``appreciable,'' or ``meaningful.'' Because these terms are undefined,
this regulation does not comply adequately with 40 CFR 51.160(e), which
requires the state to identify the types and sizes of sources subject
to review. Therefore,
[[Page 61049]]
Michigan rule 336.1285 is not approvable at this time.
Additionally, because Michigan uses its NSR program to implement
section 112(g) of the CAA, the exemptions in rules 336.1279 through
336.1290 would exempt a major Hazardous Air Pollutant source from
complying with 112(g) of the CAA. For this reason, the State must add
language that specifically excludes major HAP sources from the
exemptions. Although the State has added such language in a State
rulemaking effective July 2, 1998, it has not submitted these revisions
to the USEPA for approval into the SIP.
Finally, Michigan should make clear in its rules that the
exemptions in rules 336.1279 through 336.1290, even after approved into
the Michigan SIP, do not exempt any source from complying with any
other applicable federal requirements or existing NSR permit
limitations. For all these reasons, USEPA is proposing to disapprove
Michigan rules 336.1279 through 336.1290.
F. Relaxation of Permit Conditions
Pursuant to 40 CFR 51.165(a)(5)(ii), the State must develop
regulations that would require sources to obtain a major NSR permit if
the relaxation of an emission limitation that the source took to avoid
NSR would make the original construction a major source or major
modification. Because the Michigan NSR SIP contains no such provisions,
it is deficient.
G. Emissions Reductions Required by the CAA Are Not Creditable
Pursuant to section 173(c)(2) of the CAA, the State must develop
regulations to ensure that emissions reductions otherwise required by
the CAA are not creditable as offsets. Because the Michigan NSR SIP
contains no such restrictions, it is deficient.
H. Definition of ``Nonattainment Area''
The term ``nonattainment area,'' as defined in section 171(2) of
the CAA, means ``an area which is designated `nonattainment' with
respect to that pollutant within the meaning of section 107(d)'' of the
CAA.
The Michigan rule 336.114(g) defines ``nonattainment area'' as an
area designated by the department as not having attained full
compliance with all national ambient air quality standards. The State
must make clear in its definition of ``nonattainment area'' that any
major source or major modification to a stationary source located in an
area promulgated as nonattainment by USEPA pursuant to section 107(d)
of the CAA, must comply with the nonattainment NSR requirements.
Therefore, USEPA is proposing to disapprove the State definition of
``nonattainment area.''
I. Federal Enforceability
Pursuant to section 173(a) of the CAA, the State must develop
regulations under which all offsets required as a precondition to
permit issuance must be federally enforceable.
The Michigan rule 336.1220(2) only requires that offsets shall be
legally enforceable. Therefore, USEPA is proposing to disapprove
Michigan rule 336.1220(2).
J. Exemption From Offset Requirements for Municipal Solid Waste
Facilities
40 CFR 51.165 does not provide for exemptions from the offset
requirements. As explained to the NRDC in a letter from the EPA Region
II dated March 18, 1989, the regulations of 40 CFR 51.165 supercede the
guidance of appendix S. Therefore, the EPA will not approve any offset
exemptions from resource recovery facilities.
Michigan rule 336.1220(4)(b) impermissibly exempts municipal solid
waste burning facilities from offset requirements laid out in the CFR.
Therefore, USEPA is proposing to disapprove Michigan rule
336.1220(4)(b).
K. Modeling Requirements
40 CFR 51.160(f)(1) requires that all modeling shall be based on
the applicable models, data bases, and other requirements specified in
40 CFR part 51, appendix W (Guideline on Air Quality Models).
Michigan rule 336.1240 outlines the required air quality models.
Michigan rule 336.2240 requires the use of an air quality model cited
in EPA's 1986, ``Guideline on Air Quality Models.'' The ``Guideline on
Air Quality Models'' was updated in 1987, 1993, and 1995 and codified
in part 51 appendix W.
Furthermore, Michigan rule 336.1240(2) impermissibly allows the use
of an alternate model at the ``director's discretion'' without
opportunity for public notice or comment, as required by 40 CFR
51.160(f)(2). Michigan rule 336.1240(2)(ii) allows the director to
decide to allow use of an alternate model if the applicant demonstrates
the alternate model is ``comparable'' to USEPA's outdated 1984
document, ``Interim Procedures for Evaluating Air Quality Models.''
Instead of the word ``comparable,'' the State rule should require that
the alternate model produce concentration estimates equivalent to the
estimates obtained using the preferred model in the current appendix W,
and should reference the USEPA's updated 1992 document entitled
``Interim Procedures for Evaluating Air Quality Models.''
In addition to proposing to disapprove Michigan rule 336.1240
because it allows use of an alternate model to escape the public
participation procedures of 40 CFR 51.160(f)2), USEPA also is proposing
to disapprove Michigan rule 336.1240 because it references out-of-date
modeling guidelines rather than the current codified modeling
guidelines in 40 CFR part 51, appendix W.
L. Air Quality Modeling Demonstration Requirements
Michigan Rule 336.1241 outlines the requirements for air quality
modeling demonstrations. These provisions must be updated to reflect
the current modeling requirements laid out in 40 CFR part 51, appendix
W.
In particular, the provisions require five years of meteorological
data unless the applicant can demonstrate that a shorter meteorological
record is more representative. The rule specifically should state that,
if the applicant uses on site data, a minimum of one year of
meteorological data is required.
M. Offset Restrictions
40 CFR 51.165(a)(3)(ii)(A) requires that where the SIP allows
emissions greater than the potential to emit of the source, emissions
offset credit will be allowed only for control below this potential.
Michigan NSR rules contain no such restriction and, therefore, are
unapprovable.
N. Failure To Rescind Michigan Rule 336.1221
Michigan rule 336.2221 impermissibly exempts sources that have
significant net emissions increases of sulfur dioxide, particulate
matter, and carbon monoxide from offset requirements.
MDEQ rescinded Michigan rule 336.1221 effective November 14, 1990.
However, the State never submitted the rule to USEPA for recission.
Because Michigan did not submit the recission to the USEPA for removal
of the rule from the SIP, the Michigan NSR rules are not approvable at
this time.
III. Proposed Action
To determine the approvability of a rule, USEPA must evaluate the
rule for consistency with the requirements of the CAA and USEPA
regulations as codified in the Code of Federal Regulations, and the
EPA's interpretation of these requirements as
[[Page 61050]]
expressed in USEPA policy guidance documents. The USEPA has found the
Michigan SIP revisions inconsistent with CAA sections 110(a)(2)(C),
165, 172, and 173. The USEPA has further found Michigan's proposed SIP
revisions inconsistent with the provisions of 40 CFR part 51, and
sections 160 through 165. For these reasons, USEPA is proposing to
disapprove Michigan's proposed revisions to its NSR SIP.
Michigan submitted some of the proposed revisions to meet the
requirements of the CAA amendments of 1990. Because Michigan failed to
satisfy requirements of the CAA through these revisions, a final
disapproval would constitute a disapproval under section 179(a)(2) of
the CAA. As provided under section 179(a) of the CAA, the State of
Michigan would have up to 18 months after a final disapproval to
correct the deficiencies that are the subject of the disapproval before
the CAA requires USEPA to impose sanctions.
Furthermore, pursuant to section 110(k)(5) of the CAA, the USEPA
finds that the currently approved NSR SIP does not meet the
requirements of the CAA. The specific provisions that USEPA finds do
not meet the CAA are those that allow sources to construct before
obtaining an NSR permit. The USEPA intends to issue a notice of SIP
deficiency on this issue at the time of its final rulemaking on
Michigan's NSR SIP submittal. This notice would allow the State up to
18 months to correct the deficiency before USEPA must impose sanctions.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.) 12866, entitled
``Regulatory Planning and Review.''
B. Executive Orders on Federalism
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must 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, E.O. 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 create a mandate on state,
local or tribal governments. Proposed disapproval of the rule does not
impose any enforceable duties on these entities. Accordingly, the
requirements of section 1(a) of E.O. 12875 do not apply to this
proposed rulemaking.
On August 4, 1999, President Clinton issued a new executive order
on federalism, Executive Order 13132 (64 FR 43255 (August 10, 1999)),
which will take effect on November 2, 1999. In the interim, the current
Executive Order 12612 (52 FR 41685 (October 30, 1987)), on federalism
still applies. This rule will not have a substantial direct effect on
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 12612.
Proposed disapproval of the rule affects only one State, and does not
alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects 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 proposed disapproval is not subject to E.O. 13045 because it
does not involve decisions intended to mitigate environmental health or
safety risks disproportionately on children.
D. Executive Order 13084
Under E.O. 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 the mandate is unfunded,
EPA must 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, E.O. 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 proposed disapproval does not
significantly or uniquely affect the communities of Indian tribal
governments. Accordingly, the requirements of section 3(b) of E.O.
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 proposed disapproval will not have a significant impact on a
substantial number of small entities. A proposed disapproval of a
requested SIP revision under section 110 and subchapter I, part D of
the Clean Air Act does not affect any existing Federal requirements nor
does it impose new requirements. Any pre-existing Federal requirements
would remain in place after this disapproval. Federal disapproval of
the State submittal would not affect State-enforceability. Moreover,
EPA's disapproval of the submittal would not impose any new Federal
requirements. Therefore, because the proposed disapproval does not
affect any existing requirements nor impose any new requirements, I
certify that this action will not have a significant economic impact on
a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under
the Clean Air Act, preparation of flexibility
[[Page 61051]]
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co., v.
U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under section 205, 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 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 the disapproval action being proposed does
not include a Federal mandate that may result in estimated annual costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector. The proposed disapproval
would not change existing requirements and does not impose a Federal
mandate. If EPA were to disapprove the State's SIP submittal, pre-
existing requirements would remain in place and State enforceability of
the submittal would be unaffected. The action would impose no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, New source review,
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements,
Volatile organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 22, 1999.
David A. Ullrich,
Acting Regional Administrator, Region 5.
[FR Doc. 99-29303 Filed 11-8-99; 8:45 am]
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