Approval and Promulgation of Implementation Plan; Michigan

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,

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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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