[Federal Register Volume 61, Number 31 (Wednesday, February 14, 1996)]
[Rules and Regulations]
[Pages 5694-5696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3328]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MI40-01-6998a; FRL-5418-1]
Approval and Promulgation of Implementation Plan; Michigan
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Direct final rule.
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SUMMARY: This notice approves a revision to the Michigan State
Implementation Plan (SIP) to meet the requirements of the USEPA
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 in accordance with 40 CFR 51.396(b). This notice of 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
USEPA notice. This notice provides the rationale for this approval and
other information.
DATES: This ``direct final'' is effective April 15, 1996, unless USEPA
receives adverse or critical comments by March 15, 1996. If the
effective date is delayed, timely notice will be published in the
Federal Register.
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 SW., Washington, D.C.
20460, (202) 260-7548.
FOR FURTHER INFORMATION CONTACT: Michael G. Leslie, Regulation
Development Section (AT-18J), Air Toxics and Radiation 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 (CAA), 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 CAA.
Conformity is defined as 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 CAA requires USEPA to promulgate
criteria and procedures for determining conformity of all Federal
actions (transportation and general) to applicable SIPs. The USEPA
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
[[Page 5695]]
rules require States and local agencies to adopt and submit to the
USEPA 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 USEPA 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 CAA,
the Michigan Department of Natural Resources (MDNR) submitted a SIP
revision to the USEPA on November 24, 1994. The USEPA found this
submittal was complete on April 13, 1995. In its submittal, the State
included provisions required by the USEPA transportation conformity
rule (40 CFR part 51, subpart T), Memorandum of Agreement (MOA) between
the affected agencies, and Metropolitan Planning Organization (MPO)
resolutions.
Transportation conformity is required for all areas which are
designated nonattainment or maintenance for any transportation related
criteria pollutants. The State of Michigan currently has 25 areas
designated ozone nonattainment, and one ozone maintenance area. The
areas for which transportation conformity determinations are required
and which are included as part of Michigan's submittal include the
following nonurbanized counties: Allegan, Barry, Branch, Cass, Gratiot,
Hillsdale, Huron, Ionia, Lenawee, Lapeer, Montcalm, Saint Joseph,
Sanilac, Shiwassee, Tuscola, Van Buren. Urbanized areas include: Battle
Creek Metropolitan Statistical Area (MSA) (Calhoun County), Benton
Harbor MSA (Berrien County), Detroit-Ann Arbor Consolidated MSA
(Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne
Counties which are ozone maintenance), Flint MSA (Genesee County),
Grand Rapids MSA (Kent and Ottawa Counties), Jackson MSA (Jackson
County), Kalamazoo MSA (Kalamazoo County), Lansing-East Lansing MSA
(Clinton, Eaton, and Ingham Counties), Muskegon MSA (Muskegon County),
and Saginaw-Bay City-Midland MSA (Bay, Midland, and Saginaw Counties).
In addition to the ozone nonattainment and maintenance areas, portions
of three counties (Wayne, Oakland, and Macomb) are designated carbon
monoxide nonattainment.
The MDNR held a public hearing on its transportation conformity
submittal on October 21, 1994. One comment was received by MDNR and
that comment was addressed in the submittal.
The consultation section of the USEPA transportation conformity
rule (40 CFR 51.402) requires that the SIP revision include procedures
for interagency consultation among the Federal, State, and local
agencies and for resolution of conflicts in accordance with the
criteria set forth in 40 CFR 51.402. Specifically, the SIP revision
must include processes and procedures to be undertaken by Metropolitan
Planning Organizations (MPO), State departments of transportation, and
the United States Department of Transportation (USDOT) with State and
local air quality agencies and USEPA before making a conformity
determination, and by State and local air quality agencies and USEPA
with MPOs, State departments of transportation, and USDOT in developing
applicable SIPs.
In order to satisfy these requirements, the MDNR developed an ad
hoc multi-agency committee, the Inter-agency Work Group (IAWG), which
included representatives from the MDNR, Michigan Department of
Transportation (MDOT), USDOT, and MPOs. The IAWG developed the final
consultation rule by integrating the requirements of 40 CFR 51.402 and
23 CFR 450 with the local procedures and processes. Michigan's final
consultation rule outlines the roles and responsibilities of each of
the affected agencies for the process for determining conformity. The
consultation rule further outline the procedures for conflict
resolution in the transportation conformity process, for implementation
of the public participation process, and for the submission of
documentation relating to a conformity determination. The conformity
SIP revision submitted by Michigan has adequately addressed all
provisions of 40 CFR 51.402 and thus meets the USEPA SIP requirements.
Section 51.396 of the transportation conformity rule states that to
be approvable by the USEPA, the SIP revision submitted to USEPA must
address all requirements of the transportation conformity rule in a
manner which gives them full legal effect. In particular, the revision
must incorporate the provisions of the following sections of the rule
in verbatim form, except insofar as needed to give effect to a stated
intent in the revision to establish criteria and procedure more
stringent than the requirements stated in these sections: 51.392,
51.394, 51.398, 51.400, 51.404, 51.410, 51.412, 51.414, 51.416, 51.418,
51.420, 51.422, 51.424, 51.426, 51.428, 51.430, 51.432, 51.434, 51.436,
51.438, 51.440, 51.442, 51.444, 51.446, 51.448, 51.450, 51.460, and
51.462. The State of Michigan incorporated into the SIP revision
submittal all of the above sections in verbatim form.
On August 7, 1995, USEPA finalized an amendment to section 51.448.
It should be noted that additional sections of the conformity rule are
scheduled to be amended. The USEPA can not approve sections into the
SIP where inconsistencies exist between the submittal and the final
rule. Following these rule changes, the State of Michigan will be
required to update the SIP to address the rule changes.
The MDNR, after consulting with the Michigan Attorney General,
correctly concluded that this SIP revision will be enforceable pursuant
to Michigan statutory law. Section 336.15 of the Michigan Compiled Laws
(MCL), MSA Sec. 14.58(5)(1965 Mich. Pub. Acts 348), authorizes MDNR: to
promulgate rules to establish standards for ambient air quality and for
emissions (including SIPs); to institute a civil action to compel
compliance with such rules; to cooperate with USEPA with respect to the
control of air pollution; and to take other actions necessary to
enforce such rules. Section 336.26d of MCL, MSA Sec. 14.58(16d)(1965
Mich. Pub. Acts 348), provides for the assessment of penalties by MDNR
for SIP violations and Section 336.26e of MCL, MSA Sec. 14.58(16e)(1965
Mich. Pub. Acts 348), authorizes the attorney general to seek both
penalties and injunctive relief for such violations.
Additional enforcement authority is found in MCL Sec. 691.1202, MSA
Sec. 14.528(202)(1970 PA 127), which authorizes the attorney general,
any political subdivision of the State, any instrumentality or agency
of the State, 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. In determining whether a
violation has occurred or is likely to occur, the court may adopt
standards set forth in a SIP or may adopt another standard.
In addition, the MOA, which is the binding agreement among all of
the affected agencies and which outlines each agency's roles and
responsibilities in the transportation conformity process, contains an
agreement by each agency to comply with the requirements of the federal
transportation conformity rule. A total of 13 MOAs were included in the
SIP revision: 12 MOAs between the local MPO, MDOT and MDNR for the 10
metropolitan areas, and one MOA between MDOT and MDNR for the remaining
rural areas.
[[Page 5696]]
III. USEPA Action
The USEPA is approving the transportation conformity SIP revision
for the State of Michigan. The USEPA has evaluated this SIP revision
and has determined that the State has fully adopted the provisions of
the Federal transportation conformity rules in accordance with 40 CFR
part 51 subpart T. The appropriate public participation and
comprehensive interagency consultations have been undertaken during
development and adoption of this SIP revision. Because USEPA considers
this action to be noncontroversial and routine, USEPA is approving it
without prior proposal. This action will become effective on April 15,
1996. However, if we receive adverse comments by March 15, 1996, USEPA
will publish a notice that withdraws this action.
IV. Miscellaneous
A. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The USEPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
B. 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 has exempted
this regulatory action from E.O. 12866 review.
C. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
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, USEPA 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.
This approval does not create any new requirements. Therefore, I
certify that this action 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 the regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The Act forbids USEPA to base its
actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (1976).
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the
USEPA 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 the private sector, of $100 million or more. Under
section 205, the USEPA 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 the USEPA
to establish a plan for informing and advising any small governments
that may be significantly or uniquely impacted by the rule.
The USEPA has determined that the approval action promulgated today
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 Federal requirements. Accordingly, no
additional costs to State, local, or tribal governments, or the private
sector, result from this action.
D. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 15, 1996. 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: January 23, 1996.
Valdas V. Adamkus,
Regional Administrator.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
Subpart X--Michigan
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C 7401-7671q.
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. Section 52.1185 is added 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.
(b) (reserved).
[FR Doc. 96-3328 Filed 2-13-96; 8:45 am]
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