[Federal Register Volume 61, Number 31 (Wednesday, February 14, 1996)]
[Rules and Regulations]
[Pages 5694-5696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3328]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[MI40-01-6998a; FRL-5418-1]


Approval and Promulgation of Implementation Plan; Michigan

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Direct final rule.

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SUMMARY: This notice approves a revision to the Michigan State 
Implementation Plan (SIP) to meet the requirements of the USEPA 
transportation conformity rule set forth at 40 CFR part 51, subpart T--
Conformity to State or Federal Implementation Plans of Transportation 
Plans, Programs, and Projects Developed, Funded or Approved Under Title 
23 U.S.C. or the Federal Transit Act. The transportation conformity SIP 
revision will enable the State of Michigan to implement and enforce the 
Federal transportation conformity requirements at the State or local 
level in accordance with 40 CFR 51.396(b). This notice of approval is 
limited only to 40 CFR part 51, subpart T (transportation conformity). 
SIP revisions submitted under 40 CFR part 51, subpart W, relating to 
conformity of general Federal actions, will be addressed in a separate 
USEPA notice. This notice provides the rationale for this approval and 
other information.

DATES: This ``direct final'' is effective April 15, 1996, unless USEPA 
receives adverse or critical comments by March 15, 1996. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Copies of the SIP revision, public comments and USEPA's 
responses are available for inspection at the following address: United 
States Environmental Protection Agency, Region 5, Air and Radiation 
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (It is 
recommended that you telephone Michael Leslie at (312) 353-6680 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 SW., Washington, D.C. 
20460, (202) 260-7548.

FOR FURTHER INFORMATION CONTACT: Michael G. Leslie, Regulation 
Development Section (AT-18J), Air Toxics and Radiation Branch, Air and 
Radiation Division, United States Environmental Protection Agency, 
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, Telephone 
Number (312) 353-6680.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 176(c) of the Clean Air Act (CAA), 42 U.S.C. 7506(c), 
provides that no Federal department, agency, or instrumentality shall 
engage in, support in any way or provide financial assistance for, 
license or permit, or approve any activity which does not conform to a 
SIP which has been approved or promulgated pursuant to the CAA. 
Conformity is defined as conformity to the SIP's purpose of eliminating 
or reducing the severity and number of violations of the National 
Ambient Air Quality Standards and achieving expeditious attainment of 
such standards, and that such activities will not: (1) Cause or 
contribute to any new violation of any standard in any area, (2) 
increase the frequency or severity of any existing violation of any 
standard in any area, or (3) delay timely attainment of any standard or 
any required interim emission reductions or other milestones in any 
area.
    Section 176(c)(4)(A) of the CAA requires USEPA to promulgate 
criteria and procedures for determining conformity of all Federal 
actions (transportation and general) to applicable SIPs. The USEPA 
published the final transportation conformity rules in the November 24, 
1993, Federal Register and codified them at 40 CFR part 51, subpart T--
Conformity to State or Federal Implementation Plans of Transportation 
Plans, Programs, and Projects Developed, Funded or Approved Under Title 
23 U.S.C. or the Federal Transit Act. The conformity 

[[Page 5695]]
rules require States and local agencies to adopt and submit to the 
USEPA a transportation conformity SIP revision not later than November 
24, 1994. This notice does not address the conformity requirements 
applicable to general Federal actions which are set forth at 40 CFR 
part 51, subpart W. The USEPA will take action on SIP revisions 
relating to those requirements in a separate notice.

II. Evaluation of the State's Submittal

    Pursuant to the requirements under section 176(c)(4)(C) of the CAA, 
the Michigan Department of Natural Resources (MDNR) submitted a SIP 
revision to the USEPA on November 24, 1994. The USEPA found this 
submittal was complete on April 13, 1995. In its submittal, the State 
included provisions required by the USEPA transportation conformity 
rule (40 CFR part 51, subpart T), Memorandum of Agreement (MOA) between 
the affected agencies, and Metropolitan Planning Organization (MPO) 
resolutions.
    Transportation conformity is required for all areas which are 
designated nonattainment or maintenance for any transportation related 
criteria pollutants. The State of Michigan currently has 25 areas 
designated ozone nonattainment, and one ozone maintenance area. The 
areas for which transportation conformity determinations are required 
and which are included as part of Michigan's submittal include the 
following nonurbanized counties: Allegan, Barry, Branch, Cass, Gratiot, 
Hillsdale, Huron, Ionia, Lenawee, Lapeer, Montcalm, Saint Joseph, 
Sanilac, Shiwassee, Tuscola, Van Buren. Urbanized areas include: Battle 
Creek Metropolitan Statistical Area (MSA) (Calhoun County), Benton 
Harbor MSA (Berrien County), Detroit-Ann Arbor Consolidated MSA 
(Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne 
Counties which are ozone maintenance), Flint MSA (Genesee County), 
Grand Rapids MSA (Kent and Ottawa Counties), Jackson MSA (Jackson 
County), Kalamazoo MSA (Kalamazoo County), Lansing-East Lansing MSA 
(Clinton, Eaton, and Ingham Counties), Muskegon MSA (Muskegon County), 
and Saginaw-Bay City-Midland MSA (Bay, Midland, and Saginaw Counties). 
In addition to the ozone nonattainment and maintenance areas, portions 
of three counties (Wayne, Oakland, and Macomb) are designated carbon 
monoxide nonattainment.
    The MDNR held a public hearing on its transportation conformity 
submittal on October 21, 1994. One comment was received by MDNR and 
that comment was addressed in the submittal.
    The consultation section of the USEPA transportation conformity 
rule (40 CFR 51.402) requires that the SIP revision include procedures 
for interagency consultation among the Federal, State, and local 
agencies and for resolution of conflicts in accordance with the 
criteria set forth in 40 CFR 51.402. Specifically, the SIP revision 
must include processes and procedures to be undertaken by Metropolitan 
Planning Organizations (MPO), State departments of transportation, and 
the United States Department of Transportation (USDOT) with State and 
local air quality agencies and USEPA before making a conformity 
determination, and by State and local air quality agencies and USEPA 
with MPOs, State departments of transportation, and USDOT in developing 
applicable SIPs.
    In order to satisfy these requirements, the MDNR developed an ad 
hoc multi-agency committee, the Inter-agency Work Group (IAWG), which 
included representatives from the MDNR, Michigan Department of 
Transportation (MDOT), USDOT, and MPOs. The IAWG developed the final 
consultation rule by integrating the requirements of 40 CFR 51.402 and 
23 CFR 450 with the local procedures and processes. Michigan's final 
consultation rule outlines the roles and responsibilities of each of 
the affected agencies for the process for determining conformity. The 
consultation rule further outline the procedures for conflict 
resolution in the transportation conformity process, for implementation 
of the public participation process, and for the submission of 
documentation relating to a conformity determination. The conformity 
SIP revision submitted by Michigan has adequately addressed all 
provisions of 40 CFR 51.402 and thus meets the USEPA SIP requirements.
    Section 51.396 of the transportation conformity rule states that to 
be approvable by the USEPA, the SIP revision submitted to USEPA must 
address all requirements of the transportation conformity rule in a 
manner which gives them full legal effect. In particular, the revision 
must incorporate the provisions of the following sections of the rule 
in verbatim form, except insofar as needed to give effect to a stated 
intent in the revision to establish criteria and procedure more 
stringent than the requirements stated in these sections: 51.392, 
51.394, 51.398, 51.400, 51.404, 51.410, 51.412, 51.414, 51.416, 51.418, 
51.420, 51.422, 51.424, 51.426, 51.428, 51.430, 51.432, 51.434, 51.436, 
51.438, 51.440, 51.442, 51.444, 51.446, 51.448, 51.450, 51.460, and 
51.462. The State of Michigan incorporated into the SIP revision 
submittal all of the above sections in verbatim form.
    On August 7, 1995, USEPA finalized an amendment to section 51.448. 
It should be noted that additional sections of the conformity rule are 
scheduled to be amended. The USEPA can not approve sections into the 
SIP where inconsistencies exist between the submittal and the final 
rule. Following these rule changes, the State of Michigan will be 
required to update the SIP to address the rule changes.
    The MDNR, after consulting with the Michigan Attorney General, 
correctly concluded that this SIP revision will be enforceable pursuant 
to Michigan statutory law. Section 336.15 of the Michigan Compiled Laws 
(MCL), MSA Sec. 14.58(5)(1965 Mich. Pub. Acts 348), authorizes MDNR: to 
promulgate rules to establish standards for ambient air quality and for 
emissions (including SIPs); to institute a civil action to compel 
compliance with such rules; to cooperate with USEPA with respect to the 
control of air pollution; and to take other actions necessary to 
enforce such rules. Section 336.26d of MCL, MSA Sec. 14.58(16d)(1965 
Mich. Pub. Acts 348), provides for the assessment of penalties by MDNR 
for SIP violations and Section 336.26e of MCL, MSA Sec. 14.58(16e)(1965 
Mich. Pub. Acts 348), authorizes the attorney general to seek both 
penalties and injunctive relief for such violations.
    Additional enforcement authority is found in MCL Sec. 691.1202, MSA 
Sec. 14.528(202)(1970 PA 127), which authorizes the attorney general, 
any political subdivision of the State, any instrumentality or agency 
of the State, or any person or legal entity to bring a civil action for 
declaratory and equitable relief for the protection of the air from 
pollution, impairment or destruction. In determining whether a 
violation has occurred or is likely to occur, the court may adopt 
standards set forth in a SIP or may adopt another standard.
    In addition, the MOA, which is the binding agreement among all of 
the affected agencies and which outlines each agency's roles and 
responsibilities in the transportation conformity process, contains an 
agreement by each agency to comply with the requirements of the federal 
transportation conformity rule. A total of 13 MOAs were included in the 
SIP revision: 12 MOAs between the local MPO, MDOT and MDNR for the 10 
metropolitan areas, and one MOA between MDOT and MDNR for the remaining 
rural areas. 

[[Page 5696]]


III. USEPA Action

    The USEPA is approving the transportation conformity SIP revision 
for the State of Michigan. The USEPA has evaluated this SIP revision 
and has determined that the State has fully adopted the provisions of 
the Federal transportation conformity rules in accordance with 40 CFR 
part 51 subpart T. The appropriate public participation and 
comprehensive interagency consultations have been undertaken during 
development and adoption of this SIP revision. Because USEPA considers 
this action to be noncontroversial and routine, USEPA is approving it 
without prior proposal. This action will become effective on April 15, 
1996. However, if we receive adverse comments by March 15, 1996, USEPA 
will publish a notice that withdraws this action.

IV. Miscellaneous

A. Applicability to Future SIP Decisions

    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. The USEPA shall consider each request for revision to the SIP in 
light of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

B. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget has exempted 
this regulatory action from E.O. 12866 review.

C. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities (5 U.S.C. 603 and 604). 
Alternatively, USEPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    This approval does not create any new requirements. Therefore, I 
certify that this action does not have a significant impact on any 
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the Act, preparation of the regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of the State action. The Act forbids USEPA to base its 
actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
E.P.A., 427 U.S. 246, 256-66 (1976).
    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the 
USEPA 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 USEPA 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 USEPA 
to establish a plan for informing and advising any small governments 
that may be significantly or uniquely impacted by the rule.
    The USEPA has determined that the approval action promulgated today 
does not include a Federal mandate that may result in estimated costs 
of $100 million or more to either State, local, or tribal governments 
in the aggregate, or to the private sector.
    This Federal action approves pre-existing requirements under State 
or local law, and imposes no new Federal requirements. Accordingly, no 
additional costs to State, local, or tribal governments, or the private 
sector, result from this action.

D. Petitions for Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 15, 1996. 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, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Ozone, Transportation 
conformity, Transportation-air quality planning, Volatile organic 
compounds.

    Dated: January 23, 1996.
Valdas V. Adamkus,
Regional Administrator.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

Subpart X--Michigan

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

    Authority: 42 U.S.C 7401-7671q.
    2. Section 52.1174 is amended by adding paragraph (m) to read as 
follows:


Sec. 52.1174  Control strategy: Ozone.

* * * * *
    (m) Approval--On November 24, 1994, the Michigan Department of 
Natural Resources submitted a revision to the ozone State 
Implementation Plan. The submittal pertained to a plan for the 
implementation and enforcement of the Federal transportation conformity 
requirements at the State or local level in accordance with 40 CFR part 
51 subpart T--Conformity to State or Federal Implementation Plans of 
Transportation Plans, Programs, and Projects Developed, Funded or 
Approved Under Title 23 U.S.C. or the Federal Transit Act.
    3. Section 52.1185 is added to read as follows:


Sec. 52.1185  Control strategy: Carbon Monoxide.

    (a) Approval--On November 24, 1994, the Michigan Department of 
Natural Resources submitted a revision to the carbon monoxide State 
Implementation Plan. The submittal pertained to a plan for the 
implementation and enforcement of the Federal transportation conformity 
requirements at the State or local level in accordance with 40 CFR part 
51, subpart T--Conformity to State or Federal Implementation Plans of 
Transportation Plans, Programs, and Projects Developed, Funded or 
Approved Under Title 23 U.S.C. or the Federal Transit Act.
    (b) (reserved).

[FR Doc. 96-3328 Filed 2-13-96; 8:45 am]
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