[Federal Register Volume 71, Number 3 (Thursday, January 5, 2006)]
[Proposed Rules]
[Pages 577-579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-8316]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2005-MI-0001; FRL-8019-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Michigan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve Michigan's request for a revision 
to its Clean Air Act State Implementation Plan which provides for 
exemptions for major sources of nitrogen oxides (NOX) from 
the Reasonably Available Control Technology (RACT) and New Source 
Review (NSR) requirements for NOX. The review is for sources 
in eleven counties located in six of Michigan's eight-hour ozone non-
attainment areas. Section 182(f) of the Clean Air Act allows this 
exemption for areas where additional reductions in NOX will 
not contribute to attainment of the National Ambient Air Quality 
Standard (NAAQS) for ozone. We are proposing approval of the exemption 
for each of the six non-attainment areas.

DATES: Comments must be received on or before February 6, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2005-MI-0001, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected].
     Fax: (312) 886-5824.
     Mail: John M. Mooney, Chief, Criteria Pollutant Section, 
Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, 77 
West Jackson Boulevard, Chicago, Illinois 60604.
     Hand Delivery: John M. Mooney, Chief, Criteria Pollutant 
Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation, and special arrangements should be made for deliveries of 
boxed information. The Regional Office's official hours of business are 
Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal 
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2005-MI-0001. EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or e-mail. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
www.regulations.gov your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional instructions on submitting comments, go to 
Section I of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Environmental Protection 
Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. This Facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We 
recommend that you telephone Matt Rau, Environmental Engineer, at (312) 
886-6524 before visiting the Region 5 office.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What Should I Consider as I Prepare My Comments for EPA?

[[Page 578]]

II. What Is EPA's Analysis of the Supporting Materials?
III. What Are the Environmental Effects of These Actions?
IV. What Action Is EPA Taking Today?
V. Statutory and Executive Order Reviews

I. What Should I Consider as I Prepare My Comments for EPA?

A. Submitting CBI

    Do not submit this information to EPA through www.regulations.gov 
or e-mail. Clearly mark the part or all of the information that you 
claim to be CBI. For CBI information in a disk or CD-ROM that you mail 
to EPA, mark the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.

B. Tips for Preparing Your Comments

    When submitting comments, remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. What Is EPA's Analysis of the Supporting Materials?

    EPA's document, ``Guidance on Limiting Nitrogen Oxides Requirements 
Related to 8-Hour Ozone Implementation'' gives the requirements for 
demonstrating that further NOX reduction in an ozone non-
attainment area will not contribute to ozone attainment. The guidance 
provides that monitoring data showing three consecutive years of ozone 
levels below the NAAQS in areas in which the state has not implemented 
NOX controls is adequate to demonstrate that additional 
NOX reductions will not aid in attainment. As described in 
the guidance document, approval of the SIP revision is granted on a 
contingent basis. Michigan must continue to monitor the ozone levels in 
the areas. If finalized, each of the six areas will receive its own 
exemption. If an area violates the 8-hour ozone standard, as defined at 
62 FR 38855, EPA will remove the exemption for that area and publish a 
Federal Register notice. Upon removal of its waiver, an area will once 
again be subject to NOX control requirements under section 
182(f) of the Clean Air Act.
    Michigan submitted the 2002-04 monitoring data for the six areas. 
The eight-hour ozone concentrations for these areas were all below the 
National Ambient Air Quality Standard for ozone for the entire period 
covered by the monitoring. Michigan has not implemented the 
NOX controls required under section 182(f) in the areas yet. 
So, adding NOX controls in these areas would not help the 
areas attain the 8-hour ozone standard.

III. What Are the Environmental Effects of These Actions?

    Ozone decreases lung function, causing chest pain and coughing. It 
can aggravate asthma, reduce lung capacity, and increase risk of 
respiratory diseases like pneumonia and bronchitis. Children playing 
outside and healthy adults who work or exercise outside also may be 
harmed by elevated ozone levels. Ozone also reduces vegetation growth 
in economically important agricultural crops and wild plants.
    Nitrogen oxides and volatile organic compounds (VOC) are precursors 
in ozone formation. The photochemical reactions that form ozone are 
complex. Reducing NOX (NO and NO2) emissions will 
not always reduce ozone levels. When the ratio of NO to VOC emissions 
is high, the NO will react with ozone (O3) to form 
NO2 and oxygen (O2). In this environment, the 
NO2 will react with hydroxyl (OH) radicals instead of 
forming ozone. Therefore, a decrease in NOX emissions would 
cause an increase in ozone formation when these conditions exist. This 
effect is usually localized.
    The section 182(f) exemptions should not interfere with attaining 
the ozone standard in the six Michigan ozone non-attainment areas. The 
six areas have three consecutive years of monitoring data showing the 
areas in attainment of the 8-hour ozone standard. The section 182(f) 
NOX provisions have not been implemented in these areas. It 
is clear that Michigan has demonstrated that additional NOX 
reductions would not contribute to attainment of the ozone standard in 
the six areas.
    Ozone levels are expected to remain below the standard which will 
protect human health. However, if quality assured monitoring data shows 
that a violation of the ozone standard has occurred in one of the 
areas, the exemption for that area will be removed and additional 
control measures will be enacted. Upon receipt of quality-assured data 
demonstrating a violation of the ozone standard, EPA will notify the 
State and the public that the exemption no longer applies by publishing 
a rule in the Federal Register. The section 182(f) exemption will no 
longer apply as of the effective date of EPA's rule. Michigan will be 
required to submit the RACT SIP for the violating area by September 
2006 or by the date specified in the withdrawal notice for violations 
after the SIP deadline. Major sources of NOX will then be 
expected to comply with the part 182(f) requirements no later than the 
first ozone season which occurs 30 months after the SIP due date. If 
EPA redesignates the area to attainment prior to the violation, the 
NOX sources will be required to follow the maintenance plan 
provisions instead of the part 182(f) requirements.

IV. What Action Is EPA Taking Today?

    EPA is proposing to approve a Michigan SIP revision request for 
exemptions from the RACT and NSR NOX requirements for major 
NOX sources in six of the state's eight-hour ozone non-
attainment areas. Section 182(f) of the Clean Air Act allows this 
exemption for areas where the state demonstrates that additional 
reductions in NOX will not contribute to attainment of the 
ozone standard. Monitoring data shows the ozone levels are now below 
the standard in the six areas without utilizing NOX 
controls. If made final, these exemptions from the NOX 
requirements in section 182(f) will be made on a contingent basis. The 
state used monitoring data to demonstrate it meets the requirements for 
the exemption. If an area's monitored level of ozone violates the 
standard in the future, its exemption will be removed. If quality 
assured monitoring data indicates that an area has violated the 
standard, the EPA will notify the State that the exemption no longer 
applies in that area and will inform the public with a Federal Register 
rule. The section 182(f) exemption will not apply as of the effective 
date of EPA's rule. Michigan will be required to submit the RACT SIP 
for the violating area by

[[Page 579]]

September 2006 or by the date specified in the withdrawal notice for 
violations after the SIP deadline. Major sources of NOX will 
then be expected to comply with the part 182(f) requirements as 
expeditiously as practical but no later than the first ozone season 
which occurs 30 months after the SIP due date. In an area designated as 
attainment prior to a violation, the NOX sources will follow 
the maintenance plan requirements.

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

Regulatory Flexibility Act

    This proposed action merely proposes to approve state law as 
meeting federal requirements and imposes no additional requirements 
beyond those imposed by state law. Accordingly, the Administrator 
certifies that this proposed 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 proposes to approve 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 proposed 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 (59 FR 22951, 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 proposes to approve 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 proposed 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.

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. The 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. 
804(2).

Paperwork Reduction Act

    This proposed 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.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Dated: December 27, 2005.
Bharat Mathur,
Acting Regional Administrator, Region 5.
 [FR Doc. E5-8316 Filed 1-4-06; 8:45 am]
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