[Federal Register Volume 61, Number 244 (Wednesday, December 18, 1996)]
[Rules and Regulations]
[Pages 66607-66609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32057]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[MI48-02-7254; FRL-5662-5]


Approval and Promulgation of Implementation Plan; Michigan

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: This final rule approves a revision to the Michigan State 
Implementation Plan (SIP) to meet the requirements of the Environmental 
Protection Agency (EPA) general conformity rule set forth at 40 CFR 
part 51, subpart W--Determining Conformity of General Federal Actions 
to State or Federal Implementation Plans. This general conformity SIP 
revision will enable the State of Michigan to implement and enforce the 
Federal general conformity requirements in the nonattainment and 
maintenance areas at the State and local level.
    This approval is limited only to the general conformity SIP 
revision submitted pursuant to 40 CFR part 51, subpart W. SIP revisions 
submitted under 40 CFR part 51, subpart T, relating to conformity of 
Federal transportation actions funded or approved under Title 23 U.S.C. 
or the Federal Transit Act, will be addressed in a separate document.

EFFECTIVE DATE: This rule will be effective February 18, 1997.

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 S.W., Washington, D.C. 20460, (202) 260-7548.

FOR FURTHER INFORMATION CONTACT: Michael G. Leslie, Regulation 
Development Section 2 (AR-18J), Air Programs 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 (Act), 42 USC 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 Act. Pursuant to 
section 176(c)(1) of the Act, conformity means conformity to the SIP's 
purpose of eliminating or reducing the severity and number of 
violations of the National Ambient Air Quality Standards (NAAQS) 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 Act requires EPA to promulgate criteria 
and procedures for determining conformity of all Federal actions to 
applicable SIPs. Criteria and procedures for determining conformity of 
Federal actions related to transportation projects funded or approved 
under Title 23 U.S.C. or the Federal Transit Act are set forth at 40 
CFR part 51, subpart T. The criteria and procedures for determining 
conformity of other Federal actions, the ``general conformity'' rules, 
were published in the November 30, 1993, Federal Register and codified 
at 40 CFR part 51, subpart W--Determining Conformity of General Federal 
Actions to State or Federal Implementation Plans. The general 
conformity rules require the States and local air quality agencies 
(where applicable) to adopt and submit a general conformity SIP 
revision to the EPA not later than November 30, 1994.

II. Evaluation of the State's Submittal

    Pursuant to the requirements under Section 176(c)(4)(C) of the Act, 
the Michigan Department of Environmental Quality (MDEQ) submitted a SIP 
revision to EPA on November 29, 1994. The EPA found the submittal to be 
complete on April 13, 1995. In its submittal, the State adopted the EPA 
general conformity rule (40 CFR part 93 subpart B) verbatim. On 
February 2, 1996, EPA simultaneously published a direct final rule and 
a proposed rule in which EPA published its decision to approve the 
Michigan SIP revision. These rules were subject to a 30 day public 
comment period during which the EPA received one adverse comment. For 
this reason, the EPA withdrew the direct final rule on March 25, 1996.
    General conformity is required for all areas which are designated 
nonattainment or maintenance for any NAAQS criteria pollutant. The 
State of Michigan currently has four areas designated ozone 
nonattainment; Allegan County, Flint Metropolitan Statistical Area 
(MSA)(Genesee County), Muskegon MSA (Muskegon County), Saginaw-Bay 
City-Midland (Bay, Midland, and Saginaw Counties), and two ozone 
maintenance areas; Detroit-Ann Arbor Consolidated MSA area (Livingston, 
Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne Counties which 
are ozone maintenance),Grand Rapids MSA (Kent and Ottawa Counties). 
Portions of three counties (Wayne, Oakland, and Macomb) are designated 
carbon monoxide nonattainment. A portion of Wayne County is maintenance 
for Particulate Matter-10. The State of Michigan is currently attaining 
the NAAQS for Nitrogen Dioxide and Sulfur Dioxide, and has not been 
designated nonattainment for lead.

[[Page 66608]]

III. Public Comments

    Comment: The commentor contends that Michigan's submission fails to 
permit meaningful public scrutiny of general conformity determinations 
in that the Michigan Environmental Protection Act (MEPA), one of the 
mechanisms upon which the state will rely to enforce the conformity 
regulations, does not allow the public to compel compliance with 
general conformity procedures. Specifically, the commentor complains 
that under MEPA citizen review of inadequate or nonexistent general 
conformity determinations is limited to actions for declaratory and 
equitable relief before a circuit court and that such actions will 
involve protracted delays and expense thus discouraging public 
participation.
    Response: Section 110(a)(2) of the Act requires that all SIP 
measures be enforceable and that the States have adequate authority 
under local law to implement them. The MDEQ, in consultation with the 
Michigan Attorney General, determined that MEPA, in conjunction with 
certain provisions of the Michigan State Air Pollution Act, providese 
ample authority to enforce these SIP provisions. ``Additional'' 
authority is provided by MEPA which authorizes a citizen or entity to 
bring a civil action for declaratory and equitable relief with respect 
to general conformity compliance violations.
    Provisions requiring the opportunity for public participation are 
found in the general conformity rule itself (see 40 CFR 93.156). Any 
citizen may request information regarding a specific Federal action. 
The Federal agency must make available for review the conformity 
determination and the supporting documentation used to make the 
determination, must afford the public opportunity to comment upon such 
conformity determination, must respond to such comments, must make such 
responses available upon request, and must make public its final 
conformity determination.

IV. EPA Action

    The EPA is approving the general transportation conformity SIP 
revision for the State of Michigan. The EPA has evaluated this SIP 
revision and has determined that the State has fully adopted the 
provisions of the Federal general conformity rules set forth at 40 CFR 
part 93, subpart B. The appropriate public participation and 
comprehensive interagency consultations have been undertaken during 
development and adoption of this SIP revision.

V. Administrative Requirements

A. 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 (OMB) has 
exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
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, EPA 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.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, the 
Administrator certifies that it 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 a flexibility 
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).

C. 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 
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 approval action promulgated 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 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) of the Administrative Procedure Act 
(APA) as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, EPA submitted 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 General Accounting 
Office prior to publication of the rule in the Federal Register. This 
rule is not a ``major rule'' as defined by 5 U.S.C. 804(2) of the APA 
as amended.

E. Petitions for Judicial Review

    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 February 18, 1997. 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, 
General conformity, Hydrocarbons, Intergovernmental relations, Ozone, 
Particulate matter, Volatile organic compounds.

    Dated: November 21, 1996.
Valdas V. Adamkus,
Regional Administrator.
    40 CFR part 52, is amended as follows:

PART 52--[AMENDED]

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


[[Page 66609]]


    Authority: 42 U.S.C 7401-7671q.

Subpart X--Michigan

    2. Section 52.1173 is amended by adding paragraph (g) to read as 
follows:


Sec. 52.1173  Control strategy: Particulates.

* * * * *
    (g) Approval--On November 29, 1994, the Michigan Department of 
Natural Resources submitted a revision to the particulate State 
Implementation Plan for general conformity rules. The general 
conformity SIP revisions enable the State of Michigan to implement and 
enforce the Federal general conformity requirements in the 
nonattainment or maintenance areas at the State or local level in 
accordance with 40 CFR part 93, subpart B--Determining Conformity of 
General Federal Actions to State or Federal Implementation Plans.
    3. Section 52.1174 is amended by adding paragraph (n) to read as 
follows:


Sec. 52.1174  Control strategy: Ozone.

* * * * *
    (n) Approval--On November 29, 1994, the Michigan Department of 
Natural Resources submitted a revision to the ozone State 
Implementation Plan for general conformity rules. The general 
conformity SIP revisions enable the State of Michigan to implement and 
enforce the Federal general conformity requirements in the 
nonattainment or maintenance areas at the State or local level in 
accordance with 40 CFR part 93, subpart B--Determining Conformity of 
General Federal Actions to State or Federal Implementation Plans.
* * * * *
    4. Section 52.1185 is amended by adding paragraph (b) to read as 
follows:


Sec. 52.1185  Control strategy: Carbon Monoxide.

* * * * *
    (b) Approval--On November 29, 1994, the Michigan Department of 
Natural Resources submitted a revision to the carbon monoxide State 
Implementation Plan for general conformity rules. The general 
conformity SIP revisions enable the State of Michigan to implement and 
enforce the Federal general conformity requirements in the 
nonattainment or maintenance areas at the State or local level in 
accordance with 40 CFR part 93, subpart B--Determining Conformity of 
General Federal Actions to State or Federal Implementation Plans.
* * * * *
[FR Doc. 96-32057 Filed 12-17-96; 8:45 am]
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