[Federal Register Volume 69, Number 74 (Friday, April 16, 2004)]
[Rules and Regulations]
[Pages 20548-20550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8451]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MI84-02; FRL-7647-6]


Conditional Approval and Promulgation of Implementation Plans: 
Michigan: Oxides of Nitrogen Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is conditionally approving a State Implementation Plan 
(SIP) revision submitted by the State of Michigan on April 3, 2003. The 
submittal made by the Michigan Department of Environmental Quality 
(MDEQ) responds to the EPA's regulation entitled, ``Finding of 
Significant Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone,'' otherwise known as the ``NOX SIP 
Call.'' The rules submitted by MDEQ establish a nitrogen oxides 
(NOX) emissions allowance trading program for large electric 
generating and industrial units, and require reductions from large 
electric generating and industrial units and cement kilns, beginning in 
2004. The intended effect of the regulations submitted by MDEQ is to 
reduce emissions of NOX to help attain the national ambient 
air quality standard for ozone. EPA is conditionally approving 
Michigan's Oxides of Nitrogen Budget Trading Program because it 
generally meets the requirements of the Phase I NOX SIP Call 
designed to significantly reduce ozone in Michigan and ozone transport 
in the eastern United States.

DATES: This rule is effective on May 3, 2004.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. MI84. All documents in the Docket are listed in the index. Although 
listed in the index, some information is not publicly available, i.e., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Publicly available docket materials are 
available in hard copy at: Criteria Pollutant Section, Air Programs 
Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 
West Jackson Boulevard, Chicago, Illinois 60604. (Please contact 
Douglas Aburano at (312) 353-6960 or [email protected] before 
visiting the Region 5 Office.)

FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Environmental 
Engineer, Criteria Pollutant 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) 
353-6960, fax (312) 886-5824, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``you'' 
refer to the reader of this rule and/or to sources subject to the State 
rule, and the terms ``we,'' ``us,'' or ``our'' refer to EPA.
    On April 3, 2003, MDEQ submitted a NOX emission control 
plan to the EPA for inclusion in Michigan's SIP to meet the 
requirements of the Phase I NOX SIP Call. The revisions 
generally comply with the requirements of the Phase I NOX 
SIP Call. Included in this submission are Michigan Rules 802 through 
817. The information in this conditional approval is organized as 
follows:

I. What Action Is EPA Taking Today?
II. Statutory and Executive Order Reviews.

I. What Action Is EPA Taking Today?

    EPA is conditionally approving revisions to Michigan's SIP 
concerning the adoption of its NOX emission trading rules, 
which the State submitted on April 3, 2003. The rules meet the 
requirements of the Phase I NOX SIP Call with certain 
exceptions which EPA identified in our February 26, 2004, proposed 
conditional approval (69 FR 8905). In a letter dated January 9, 2004, 
MDEQ committed to submit fully adopted rules addressing the 
deficiencies by May 31, 2004. MDEQ is in the process of adopting rules 
to correct these deficiencies. Once MDEQ has submitted the rule changes 
to address these deficiencies, we can take action to fully approve the 
SIP revision. If Michigan does not submit approvable revisions by this 
date, this conditional approval will automatically revert to a 
disapproval of the Michigan NOX SIP submission.
    EPA published in the Federal Register on February 26, 2004 (69 FR 
8905) a proposal to conditionally approve Michigan's SIP revision. You 
can find additional information regarding the State of Michigan's 
submittal and our rationale for conditionally approving it in the 
February 26, 2004 proposed rule where we described, in detail, the 
Michigan SIP revision, as well as the deficiencies that Michigan must 
address before we can fully approve MI's NOX trading 
program. Since we did not receive any adverse comments during the 30 
day public comment period, we are finalizing the conditional approval 
that we proposed on February 26, 2004. Unless this conditional approval 
is satisfied within 1 year, it will become a disapproval. EPA will 
publish a document in the Federal Register indicating whether the 
conditional approval was satisfied or became a disapproval.

    Pursuant to the good cause exemption in section 553(d)(3) of the 
Federal Administrative Procedure Act (5 U.S.C. 553(d)(3), we are 
making this rule effective on May 3, 2004, which is 15 days after 
publication of this final action because of the need for the State 
to allocate allowances to affected sources in a timely manner. 
Sources will need these allowances for the compliance season which 
begins on May 31, 2004.

II. Statutory and Executive Order Reviews

Executive Order 12866; Regulatory Planning and Review

    Under Executive Order 12866 (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.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to

[[Page 20549]]

Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001).

Regulatory Flexibility Act

    This action merely approves state regulations as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state regulations. 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.).

Unfunded Mandates Reform Act

    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 or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175 Consultation and Coordination With Indian Tribal 
Governments

    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 (65 
FR 67249, November 9, 2000).

Executive Order 13132 Federalism

    This action also does not have Federalism implications because it 
does 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 (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.

Executive Order 13045 Protection of Children From Environmental Health 
and Safety Risks

    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 economically significant.

National Technology Transfer Advancement Act

    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 program 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 program 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 program submission that otherwise satisfies the provisions of the 
Act. Therefore, the requirements of section 12(d) of the NTTA do not 
apply.

Civil Justice Reform

    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.

Governmental Interference With Constitutionally Protected Property 
Rights

    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 Takings'' issued 
under the executive order, and has determined that the rule's 
requirements do not constitute a taking.

Paperwork Reduction Act

    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.).

Congressional Review Act

    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. Section 804 exempts from section 801 the following types 
of rules: (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding this action under section 801 because 
this is a rule of particular applicability.
    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 June 15, 2004. 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Dated: April 6, 2004.
Gary Gulezian,
Acting Regional Administrator, Region 5.


0
Title 40 of the Code of Federal Regulations, chapter I, part 52, is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart X--Michigan

0
2. Subpart X is amended by adding Sec.  52.1218 to read as follows:


Sec.  52.1218  Identification of plan--conditional approval.

    The plan revision commitment listed in paragraph (a) was submitted 
on the date specified.
    (a) On April 3, 2003, the Michigan Department of Environmental 
Quality submitted a revision to the Michigan State Implementation Plan. 
The revision adds rules which require the reduction of oxides of 
nitrogen from electric generating units, large industrial commercial 
and institutional boilers and cement kilns.
    (1) Incorporation by reference. The following rules are 
incorporated by

[[Page 20550]]

reference: R 336.1802 Applicability under oxides of nitrogen budget 
trading program, Rule 802; R 336.1803 Definitions for oxides of 
nitrogen budget trading program, Rule 803; R 336.1804 Retired unit 
exemption from oxides of nitrogen budget trading program, Rule 804; R 
336.1805 Standard requirements of oxides of nitrogen budget trading 
program, Rule 805; R 336.1806 Computation of time under oxides of 
nitrogen budget trading program, Rule 806; R 336.1807 Authorized 
account representative under oxides of nitrogen budget trading program, 
Rule 807; R 336.1808 Permit requirements under oxides of nitrogen 
budget trading program, Rule 808; R 336.1809 Compliance certification 
under oxides of nitrogen budget trading program, Rule 809; R 336.1810 
Allowance allocations under oxides of nitrogen budget trading program, 
Rule 810; R 336.1811 New source set-aside under oxides of nitrogen 
budget trading program, Rule 811; R 336.1812 Allowance tracking system 
and transfers under oxides of nitrogen budget trading program, Rule 
812; R 336.1813 Monitoring and reporting requirements under oxides of 
nitrogen budget trading program, Rule 813; R 336.1814 Individual opt-
ins under oxides of nitrogen budget trading program, Rule 814; R 
336.1815 Allowance banking under oxides of nitrogen budget trading 
program, Rule 815; R 336.1816 Compliance supplement pool under oxides 
of nitrogen budget trading program, Rule 816; R 336.1817 Emission 
limitations and restrictions for Portland cement kilns, Rule 817. These 
rules became effective in the State on December 4, 2002.
    (2) [Reserved]
    (b) [Reserved]

[FR Doc. 04-8451 Filed 4-15-04; 8:45 am]
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