Approval and Promulgation of Implementation Plan; Michigan

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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