[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]
BILLING CODE 6560-50-P
