[Federal Register Volume 61, Number 244 (Wednesday, December 18, 1996)]
[Rules and Regulations]
[Pages 66609-66611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32058]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[MI40-02-7255; FRL-5662-8]


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) 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. This 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 EPA document.

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

ADDRESSES: Copies of the SIP revision, public comments and EPA'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 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 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 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 
(transportation and general) to applicable SIPs. The EPA 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 rules require States 
and local agencies to adopt and submit to the EPA 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 
EPA 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 Act, 
the Michigan Department of Environmental Quality (MDEQ) submitted a SIP 
revision to the EPA on November 24, 1994. The EPA found this submittal 
to be complete on April 13, 1995. In its submittal, the State adopted 
verbatim the EPA transportation conformity rule (40 CFR Part 93, 
Subpart A), Memorandum of Agreements (MOA) between the affected 
agencies, and Metropolitan Planning Organization (MPO) resolutions. On 
February 14,

[[Page 66610]]

1996, the 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 April 12, 1996.
    Transportation conformity is required for all areas which are 
designated nonattainment or maintenance for any transportation related 
criteria pollutants. At the time of the proposal, the State of Michigan 
had 25 areas designated ozone nonattainment, and one maintenance area. 
On February 14, 1996, EPA published a final rule (61 FR 5707) 
correcting the designation of 20 of the areas from nonattainment to 
attainment/unclassifiable for ozone, effective March 15, 1996. Pursuant 
to that final rule, the following areas are no longer required to 
assess the conformity of transportation plans, programs, and projects: 
The nonurbanized counties of Barry, Branch, Cass, Gratiot, Hillsdale, 
Huron, Ionia, Lapeer, Lenawee, Montcalm, Sanilac, Shiawassee, St. 
Joseph, Tuscola, and Van Buren; the urbanized areas of Battle Creek 
Metropolitan Statistical Area (MSA) (Calhoun County), Benton Harbor MSA 
(Berrien County), Jackson MSA (Jackson County), Kalamazoo MSA 
(Kalamazoo County), and Lansing-East Lansing MSA (Clinton, Eaton, and 
Ingham Counties). The following areas remain designated nonattainment 
or maintenance for ozone and are thus required to perform conformity 
determinations: The urbanized areas of Detroit-Ann Arbor Consolidated 
MSA (Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and 
Wayne Counties), Flint MSA (Genesee County), Grand Rapids MSA (Kent and 
Ottawa Counties), Muskegon MSA (Muskegon County), Saginaw-Bay City-
Midland MSA (Bay, Midland, and Saginaw Counties), and the nonurbanized 
Allegan County. In addition, portions of three counties (Wayne, 
Oakland, and Macomb) remain designated carbon monoxide nonattainment.

III. Public Comments

    One set of public comments was submitted jointly by the Citizens 
for Clean Air in the Lake Michigan Basin, American Lung Association of 
Michigan, and the East Michigan Environmental Action Council.
    Comment: The commentor contends that Michigan inappropriately 
relies on the Michigan Environmental Protection Act (MEPA) for 
enforcement of its transportation conformity SIP revision. 
Specifically, the commentor contends that MEPA is not an adequate 
enforcement mechanism because, as interpreted by Michigan case law, it 
requires a citizen to demonstrate that a transportation project will 
have a statewide impact before the citizen can obtain injunctive 
relief.
    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. EPA therefore will not approve state 
transportation conformity provisions unless the state can demonstrate 
that it has adequate authority to compel compliance with such 
provisions. MDEQ, in consultation with the Michigan Attorney General, 
determined that Sections 336.115 and 336.26d of the Michigan Complied 
Laws (MCL), MSA Sec. 14.58(5) and 14.58(16d)(1965 Mich.Pub.Acts 348), 
provide the State with ample authority to enforce the transportation 
conformity SIP provisions. Section 336.15 authorizes MDEQ to institute 
a civil action to compel compliance with those provisions and to take 
other actions necessary to enforce them, and Section 336.26d provides 
for the assessment of penalties and authorizes the attorney general to 
seek both penalties and injunctive relief for violations. 
``Additional'' enforcement authority is found in the MEPA provisions 
upon which the commentors have focused. Those provisions authorize the 
attorney general 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.'' Case law cited by the 
commentors recognizes that not all threats to the environment justify 
judicial intervention pursuant to MEPA. Rather, a determination of 
whether an environmental risk rises to the level of ``impairment or 
destruction'' depends on a variety of factors, including the magnitude 
of the harm, the characteristic of resources involved, the nature of 
defendant's actions, and the type of property involved. Kimberly Hills 
Neighborhood Association v. Dion, 114 Mich.App. 495, 320 N.W.2d 668 
(1982). However, the fact that case law interpreting MEPA precludes a 
citizen from obtaining injunctive relief absent a showing that the 
impact on the environment will be significant does not negate the 
State's authority to enforce the transportation conformity SIP 
provisions pursuant to Sections 336.115 and 336.26d of the Michigan 
Complied Laws. Michigan's transportation conformity SIP provisions 
remain ``enforceable'' by the State within the meaning of Section 
110(a)(2).
    Comment: The commentor believes that the MOA between the affected 
agencies will not ensure compliance with the transportation conformity 
requirements.
    Response: The MOA constitutes a binding agreement among the 
affected agencies to comply with the transportation conformity SIP and 
contains an outline which defines each agency's role and 
responsibilities in the transportation conformity process. Parties to 
the MOA agree to implement the transportation conformity process in 
compliance with the Act and the transportation conformity rule. Doubts 
raised by the commentors as to whether the parties will live up to 
their agreements do not warrant a finding that the State will not be 
able to enforce compliance with the transportation conformity SIP; nor 
do they warrant disapproval this SIP revision.
    Comment: The commentor questioned why the direct final rule 
indicated that the following areas are required to assess conformity: 
Barry, Branch, Cass, Gratiot, Hillsdale, Huron, Ionia, Lapeer, Lenawee, 
Battle Creek MSA (Calhoun County), Benton Harbor MSA (Berrien County), 
Jackson MSA (Jackson County), Kalamazoo MSA (Kalamazoo County), 
Lansing-East Lansing MSA (Clinton, Eaton, and Ingham Counties). The 
commentor correctly states that transportation conformity is only 
required for nonattainment and maintenance areas and that the 
classifications of these counties were technically corrected from 
nonattainment to attainment for ozone, as published in 61 FR 5707 
(February 14, 1996). Noting this discrepancy, the commentor believes 
that the Michigan transportation SIP was not prepared with the 
necessary care and attention to detail.
    Response: Transportation conformity is required for all areas which 
are designated nonattainment or maintenance for any transportation 
related criteria pollutants. The State of Michigan submitted the 
transportation conformity SIP on November 24, 1994. At that time, all 
of the above listed areas were designated nonattainment for ozone. The 
EPA rulemakings on the transportation conformity SIP revision and on 
the technical correction proceeded simultaneously. Until the effective 
date of the technical correction, these areas were designated 
nonattainment for ozone and were required to assess conformity of 
transportation activities. The correction, which did not occur until 
February 14, 1996 and which did not become

[[Page 66611]]

effective until March 15, 1996, is reflected in this notice.

IV. EPA Action

    The EPA is approving the 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 transportation conformity rules set forth at 40 CFR part 93, 
subpart A. 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 section 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, 
Hydrocarbons, Intergovernmental relations, Ozone, Transportation 
conformity, Transportation-air quality planning, 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:

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

Subpart X--Michigan

    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. Part 52 is amended by adding Sec. 52.1185 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.
* * * * *
[FR Doc. 96-32058 Filed 12-17-96; 8:45 am]
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