Air Plan Approval; Michigan; Partial Approval and Partial Disapproval for Infrastructure SIP Requirements for the 2015 Ozone NAAQS, 35247-35254 [2021-14152]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 86, Number 125 (Friday, July 2, 2021)]
[Proposed Rules]
[Pages 35247-35254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14152]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2019-0215; FRL-10025-47-Region 5]


Air Plan Approval; Michigan; Partial Approval and Partial 
Disapproval for Infrastructure SIP Requirements for the 2015 Ozone 
NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
partially approve and partially disapprove elements of a State 
Implementation Plan (SIP) submission from Michigan regarding the 
infrastructure requirements of section 110 of the Clean Air Act (CAA) 
for the 2015 ozone National Ambient Air Quality Standards (NAAQS). The 
infrastructure requirements are designed to ensure that the structural 
components of each state's air quality management program are adequate 
to meet the state's responsibilities under the CAA. The disapproval 
portion of this action does not begin a new Federal Implementation Plan 
(FIP) clock, because the FIPs are already in place.

DATES: Comments must be received on or before August 2, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2019-0215 at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www2.epa.gov/docketgs/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Olivia Davidson, Environmental 
Scientist, Attainment Planning and Maintenance Section, Air Programs 
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-0266, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION 
section is arranged as follows:

I. What is the background of this SIP submission?
II. What is EPA's analysis of this SIP submission?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background of this SIP submission?

    In this rulemaking, EPA is proposing to approve most elements and 
disapprove one element of a March 8, 2019 submission from Michigan's 
Department of Environment, Great Lakes and Energy (EGLE) intended to 
address all applicable infrastructure requirements for the 2015 ozone 
NAAQS. EPA is disapproving the portion of the submission pertaining to 
the visibility protection requirements of section 110(a)(2)(D)(i)(II) 
with respect to the 2015 ozone NAAQS. The disapproval portion of this 
action does not begin a new FIP clock, because the FIPs are already in 
place. EPA will take action in a separate rulemaking on the portion of 
the submission pertaining to the interstate transport requirements of 
section 110(a)(2)(D)(i)(I) with respect to the 2015 ozone NAAQS.
    Whenever EPA promulgates a new or revised NAAQS, CAA section 
110(a)(1) requires states to make SIP submissions to provide for the 
implementation, maintenance, and enforcement of the NAAQS. This type of 
SIP submission is commonly referred to as an ``infrastructure SIP.'' 
These submissions must meet the various requirements of CAA section 
110(a)(2), as applicable. Due to ambiguity in some of the language of 
CAA section 110(a)(2), EPA believes that it is appropriate to interpret 
these provisions in the specific context of acting on infrastructure 
SIP submissions. EPA has previously provided comprehensive guidance on 
the application of these provisions through our September 13, 2013 
Infrastructure SIP Guidance and through regional actions on 
infrastructure submissions (EPA's 2013 Guidance).\1\ Unless otherwise 
noted below, we are following that existing approach in acting on this 
submission. In addition, in the context of acting on such 
infrastructure submissions, EPA evaluates the submitting state's SIP 
for facial compliance with statutory and regulatory requirements, not 
for the state's implementation of its SIP.\2\ EPA has other authority 
to address any issues concerning a state's implementation of the rules, 
regulations, consent orders, etc. that comprise its SIP.
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    \1\ EPA explains and elaborates on these ambiguities and its 
approach to address them in our September 13, 2013 Infrastructure 
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior 
action on Minnesota's infrastructure SIP to address the 2008 ozone, 
2010 nitrogen dioxide (NO2), 2010 sulfur dioxide 
(SO2), and 2012 fine particulate matter 
(PM2.5) NAAQS (80 FR 63436 (October 20, 2015)).
    \2\ See U.S. Court of Appeals for the Ninth Circuit decision in 
Montana Environmental Information Center v. EPA, No. 16-71933 (Aug. 
30, 2018).

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[[Page 35248]]

II. What is EPA's analysis of this SIP submission?

    Pursuant to section 110(a), states must provide reasonable notice 
and opportunity for public hearing for all infrastructure SIP 
submissions. On September 28, 2018, EGLE opened a five-week comment 
period and provided the opportunity for public hearing. Comments were 
integrated into the SIP submission.
    Michigan provided a detailed synopsis of how various components of 
its SIP meet each of the applicable requirements in section 110(a)(2) 
for the 2015 ozone NAAQS, as applicable. The following review evaluates 
the state's submission.

A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures

    This section requires SIPs to include enforceable emission 
limitations and other control measures, means, or techniques, as well 
as schedules and timetables for compliance, as may be necessary or 
appropriate to meet the applicable requirements. This submission is 
required to demonstrate that the state of Michigan can comply with the 
implementation of the NAAQS 2015 Ozone standard.
    Under Part 55 of the Natural Resources Protection Act, (PA 451) 
promulgated in 1994, Michigan Compiled Laws (MCL) Sections 324.5503 and 
324.5512 authorize the EGLE director to regulate the discharge of air 
pollutants, to create rules and to establish standards regarding air 
quality and emissions.
    EPA's 2013 Guidance states that to satisfy section 110(a)(2)(A) 
requirements, ``an air agency's submission should identify existing 
EPA-approved SIP provisions or new SIP provisions that the air agency 
has adopted and submitted for EPA approval that limit emissions of 
pollutants relevant to the subject NAAQS, including precursors of the 
relevant NAAQS pollutant where applicable.''
    We believe that EGLE has the necessary components contained in its 
MCL and MAC to comply with the 2015 NAAQS Ozone standard. Emission 
limits for ozone precursors are contained in Michigan Administrative 
Code (MAC) Rules 336.1101 through 336.2908. Specifically, MAC Rules 
336.1601 through 336.1661 apply to existing sources of volatile organic 
compounds (VOC), Rules 336.1701 through 336.1710 apply to new sources 
of VOCs, and Rules 336.1801 through 1834 apply to oxides of nitrogen 
(NOX) from stationary sources. Methods of control and 
compliance are contained within these rules.
    In this rulemaking, EPA is not proposing to approve any new 
provisions in MCL Chapter 336 or MCL Chapter 324. EPA is also not 
proposing to approve or disapprove any existing state provisions or 
rules related to start-up, shutdown or malfunction or director's 
discretion in the context of section 110(a)(2)(A). EPA proposes that 
Michigan has met the infrastructure SIP requirements of section 
110(a)(2)(A) with respect to the 2015 ozone NAAQS.

B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System

    This section requires SIPs to provide for installation and 
operation of devices used to monitor, compile, and analyze ambient air 
quality data, and upon request, make such data available to EPA. These 
requirements include monitoring air quality for the relevant NAAQS 
pollutants at the proper locations in accordance with network 
requirements (40 CFR parts 53 and 58), submitting said data to the Air 
Quality System (AQS) in a timely manner (40 CFR part 58), providing the 
data with description of any discrepancies to the appropriate EPA 
Regional Office (40 CFR 58.10) and obtaining EPA approval for any 
changes to monitoring sites or network plan.
    EGLE's annual reporting requirements are contained in Rules 336.201 
through 336.205 of MAC. EGLE enters air monitoring data into AQS, and 
the state provides EPA with prior notification when changes to its 
monitoring network or plan are being considered. An annual network 
review is submitted to EPA to ensure EGLE's air monitoring operations 
comply with applicable Federal requirements, including the updated 
ozone NAAQS standard. The last submission to EPA was approved on 
October 28, 2020. EPA approved air quality monitors and monitor 
locations capable of detecting ozone and ozone precursors at the 
revised NAAQS level. EPA proposes that EGLE has met the infrastructure 
SIP requirements of section 110(a)(2)(B) with respect to the 2015 ozone 
NAAQS.

C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures; 
Minor NSR; PSD

    This section requires SIPs to set forth a program providing for 
enforcement of all SIP measures, and the regulation of construction of 
new and modified stationary sources to meet New Source Review (NSR) 
requirements under Prevention of Significant Deterioration (PSD) and 
Nonattainment NSR (NNSR) programs. Part C of the CAA (sections 160-
169B) addresses PSD, while part D of the CAA (sections 171-193) 
addresses NNSR requirements. EPA's 2013 Guidance states that the NNSR 
requirements of section 110(a)(2)(C) are generally outside the scope of 
infrastructure SIPs; however, a state must provide for regulation of 
minor sources and minor modifications (minor NSR).
1. Program for Enforcement of Control Measures
    A state's infrastructure SIP submission should identify the 
statutes, regulations, or other provisions in the SIP that provide for 
enforcement of emission limits and control measures. EGLE maintains 
this authority through MCL 324.5501-324.5542. The authority for 
rulemaking to establish emission limits and promulgate rules for permit 
programs is contained in MCL 324.5505 and MCL 324.5506. MCL 324.5526 
and 324.5528 gives EGLE authority to reasonably inspect facilities and 
to enforce violations of the established rules, respectively. Civil 
action may be taken against any entity that violates these provisions 
under PA 451. Additional enforcement provisions including voluntary 
agreement of investigation, notice to discontinue pollution, power of 
investigation and inspection, and other violation rules are contained 
in MCL 324.5515, 324.5518 and 324.5526-324.5532 respectively. EPA 
proposes that EGLE meets the requirements of 110(a)(2)(C) with respect 
to enforceability of control measures contained in its MCL regarding 
the 2015 ozone NAAQS.
2. Minor NSR
    To satisfy the sub element for preconstruction regulation of the 
modification and construction of minor stationary sources and the minor 
modification of major stationary sources, an infrastructure SIP 
submission should identify the existing EPA approved SIP provisions 
and/or include new provisions that govern the minor source pre-
construction program that regulates emissions of the relevant NAAQS 
pollutant(s). The EPA rules addressing SIP requirements for pre-
construction regulatory programs that apply to minor sources and minor 
modifications are at 40 CFR 51.160 through 51.164.
    The State of Michigan's minor source permit to install rules are 
contained in Part 2 (Air Use Approval) of the Michigan Administrative 
Code. Changes to the Part 2 rules were submitted on November 12, 1993; 
May 16, 1996; April 3, 1998; September 2, 2003; March 24, 2009; and 
February 28, 2017. EPA

[[Page 35249]]

approved changes to the Part 2 rules most recently in a final approval 
dated July 1, 2019 (84 FR 25180), and therefore proposes that Michigan 
has met this set of infrastructure SIP requirements of section 
110(a)(2)(C) with respect to the 2015 ozone NAAQS.
3. PSD
    To satisfy the sub element regarding the PSD program required by 
CAA title I part C, an infrastructure SIP submission should demonstrate 
that one or more air agencies have the authority to implement a 
comprehensive PSD permit program under CAA title I part C, for all PSD-
subject sources located in areas that are designated attainment or 
unclassifiable for one or more NAAQS. The infrastructure SIP submission 
should also identify the existing SIP provisions that govern the major 
source PSD program.
    The evaluation of each state's submission addressing the 
infrastructure SIP requirements of section 110(a)(2)(C) covers: (i) 
Enforcement of SIP measures; (ii) PSD provisions that explicitly 
identify NOX as a precursor to ozone in the PSD program; 
(iii) identification of precursors to PM2.5 \3\ and 
identification of PM2.5 and PM10 \4\ condensables 
in the PSD program; (iv) PM2.5 increments in the PSD 
program; and, (v) greenhouse gas (GHG) permitting and the ``Tailoring 
Rule.'' \5\
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    \3\ PM2.5 refers to particles with an aerodynamic 
diameter of less than or equal to 2.5 micrometers, also referred to 
as ``fine'' particles.
    \4\ PM10 refers to particles with an aerodynamic 
diameter of less than or equal to 10 micrometers.
    \5\ In EPA's April 28, 2011 proposed rulemaking for 
infrastructure SIPs for the 1997 ozone and PM2.5 NAAQS, 
we stated that each state's PSD program must meet applicable 
requirements for evaluation of all regulated NSR pollutants in PSD 
permits (76 FR 23757 at 23760). This view was reiterated in EPA's 
August 2, 2012 proposed rulemaking for infrastructure SIPs for the 
2006 PM2.5 NAAQS (77 FR 45992 at 45998). In other words, 
if a state lacks provisions needed to adequately address 
NOX as a precursor to ozone, PM2.5 precursors, 
PM2.5 and PM10 condensables, PM2.5 
increments, or the Federal GHG permitting thresholds, the provisions 
of section 110(a)(2)(C) requiring a suitable PSD permitting program 
must be considered not to be met irrespective of the NAAQS that 
triggered the requirement to submit an infrastructure SIP, including 
the 2015 ozone NAAQS.
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    Sources in Michigan that install equipment that will emit ozone 
precursors are subject to permit-to-install regulations under MAC Rules 
336.1201 through 336.1209 and include consideration of VOCs and 
NOX. PSD program regulations (MAC Rules 336.2801 through R 
336.2823) require any new major or modified source to undergo PSD 
review.\6\
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    \6\ Effective February 16, 2017, EPA updated the modeling 
appendix at 40 CFR part 51, appendix W (82 FR 5182). EPA proposed 
approval of Michigan Part 9 rules (86 FR 15837) on March 24, 2021 
incorporating the CFR update. The finalization of the rule update 
will dictate finalization of this element.
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a. PSD Provisions That Explicitly Identify NOX as a 
Precursor to Ozone in the PSD Program
    EPA's ``Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 2; Final Rule to Implement Certain Aspects 
of the 1990 Amendments Relating to New Source Review and Prevention of 
Significant Deterioration as They Apply in Carbon Monoxide, Particulate 
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase 
2 Rule) was published on November 29, 2005. Among other requirements, 
the Phase 2 Rule obligated states to revise their PSD programs to 
explicitly identify NOX as a precursor to ozone (70 FR 71612 
at 71679, 71699-71700). This requirement was codified in 40 CFR 
51.166.7. EPA approved revisions to Michigan's PSD SIP reflecting these 
requirements on April 4, 2014 (see 79 FR 18802), and therefore proposes 
that Michigan has met the set of infrastructure SIP requirements of 
section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.
b. Identification of Precursors to PM2.5 and the 
Identification of PM2.5 and PM10 Condensables in 
the PSD Program
    On May 16, 2008 (see 73 FR 28321), EPA issued the Final Rule on the 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule). 
The 2008 NSR Rule finalized several new requirements for SIPs to 
address sources that emit direct PM2.5 and other pollutants 
that contribute to secondary PM2.5 formation. One of these 
requirements is for NSR permits to address pollutants responsible for 
the secondary formation of PM2.5, otherwise known as 
precursors. In the 2008 rule, EPA identified precursors to 
PM2.5 for the PSD program to be SO2 and 
NOX (unless the state demonstrates to the Administrator's 
satisfaction or EPA demonstrates that NOX emissions in an 
area are not a significant contributor to that area's ambient 
PM2.5 concentrations). The 2008 NSR Rule also specifies that 
VOCs are not considered to be precursors to PM2.5 in the PSD 
program unless the state demonstrates to the Administrator's 
satisfaction or EPA demonstrates that emissions of VOCs in an area are 
significant contributors to that area's ambient PM2.5 
concentrations.
    The explicit references to SO2, NOX, and VOCs 
as they pertain to secondary PM2.5 formation are codified at 
40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of 
identifying pollutants that are precursors to PM2.5, the 
2008 NSR Rule also required states to revise the definition of 
``significant'' as it relates to a net emissions increase or the 
potential of a source to emit pollutants. Specifically, 40 CFR 
51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define ``significant'' for 
PM2.5 to mean the following emissions rates: 10 tons per 
year (tpy) of direct PM2.5; 40 tpy of SO2; and 40 
tpy of NOX (unless the state demonstrates to the 
Administrator's satisfaction or EPA demonstrates that NOX 
emissions in an area are not a significant contributor to that area's 
ambient PM2.5 concentrations). The deadline for states to 
submit SIP revisions to their PSD programs incorporating these changes 
was May 16, 2011 (see 73 FR 28321 at 28341).\7\
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    \7\ EPA notes that on January 4, 2013, the U.S. Court of Appeals 
for the D.C. Circuit, in Natural Resources Defense Council v. EPA, 
706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008 
NSR Rule in accordance with the CAA's requirements for 
PM10 nonattainment areas (Title I, part D, subpart 4), 
and not the general requirements for nonattainment areas under 
subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250). 
As the subpart 4 provisions apply only to nonattainment areas, EPA 
does not consider the portions of the 2008 rule that address 
requirements for PM2.5 attainment and unclassifiable 
areas to be affected by the court's opinion. Moreover, EPA does not 
anticipate the need to revise any PSD requirements promulgated by 
the 2008 NSR rule in order to comply with the court's decision. 
Accordingly, EPA's approval of Michigan's infrastructure SIP as to 
elements (C), (D)(i)(II), or (J) with respect to the PSD 
requirements promulgated by the 2008 implementation rule does not 
conflict with the court's opinion. The court's decision with respect 
to the nonattainment NSR requirements promulgated by the 2008 
implementation rule also does not affect EPA's action on the present 
infrastructure action. EPA interprets the CAA to exclude 
nonattainment area requirements, including requirements associated 
with a nonattainment NSR program, from infrastructure SIP 
submissions due three years after adoption or revision of a NAAQS. 
Instead, these elements are typically referred to as nonattainment 
SIP or attainment plan elements, which would be due by the dates 
statutorily prescribed under subpart 2 through 5 under part D, 
extending as far as 10 years following designations for some 
elements.
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    The 2008 NSR Rule did not require states to immediately account for 
gases that could condense to form particulate matter, known as 
condensables, in PM2.5 and PM10 emission limits 
in NSR permits. Instead, EPA determined that states had to account for 
PM2.5 and PM10 condensables for applicability 
determinations and in establishing emissions limitations for 
PM2.5 and PM10 in PSD permits beginning on or 
after January 1, 2011. This requirement is codified in 40 CFR 
51.166(b)(49)(i)(a)

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and 40 CFR 52.21(b)(50)(i)(a). Revisions to states' PSD programs 
incorporating the inclusion of condensables were required to be 
submitted to EPA by May 16, 2011 (see 73 FR 28321 at 28341). EPA 
approved revisions to Michigan's PSD SIP reflecting these requirements 
on April 4, 2014 (see 79 FR 18802), and therefore proposes that 
Michigan has met this set of infrastructure SIP requirements of section 
110(a)(2)(C) with respect to the 2015 ozone NAAQS.
c. PM2.5 Increments in the PSD Program
    On October 20, 2010, EPA issued the final rule on the ``Prevention 
of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 
Micrometers (PM2.5) Increments, Significant Impact Levels 
(SILs) and Significant Monitoring Concentration (SMC)'' (2010 NSR 
Rule). This rule established several components for making PSD 
permitting determinations for PM2.5, including a system of 
``increments'' which is the mechanism used to estimate significant 
deterioration of ambient air quality for a pollutant. These increments 
are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c), and are included 
in Table 1 below.

Table 1--PM2.5 Increments Established by the 2010 NSR Rule in Micrograms
                             per Cubic Meter
------------------------------------------------------------------------
                                              Annual
                                            arithmetic      24-hour max
                                               mean
------------------------------------------------------------------------
Class I.................................               1               2
Class II................................               4               9
Class III...............................               8              18
------------------------------------------------------------------------

    The 2010 NSR Rule also established a new ``major source baseline 
date'' for PM2.5 as October 20, 2010, and a new trigger date 
for PM2.5 as October 20, 2011. These revisions are codified 
in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 
52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule 
revised the definition of ``baseline area'' to include a level of 
significance of 0.3 micrograms per cubic meter, annual average, for 
PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i) 
and 40 CFR 52.21(b)(15)(i). On April 4, 2014 (79 FR 18802), EPA 
finalized approval of the applicable infrastructure SIP PSD revisions; 
therefore, we are proposing that Michigan has met this set of 
infrastructure SIP requirements of section 110(a)(2)(C) with respect to 
the 2015 ozone NAAQS.
d. GHG Permitting and the ``Tailoring Rule'' in the PSD Program
    With respect to the requirements of section 110(a)(2)(C) as well as 
section 110(a)(2)(J), EPA interprets the CAA to require each state to 
make an infrastructure SIP submission for a new or revised NAAQS that 
demonstrates that the air agency has a complete PSD permitting program 
meeting the current requirements for all regulated NSR pollutants. The 
requirements of section 110(a)(2)(D)(i)(II) may also be satisfied by 
demonstrating that the air agency has a complete PSD permitting program 
correctly addressing all regulated NSR pollutants. EGLE has shown that 
it currently has a PSD program in place that covers all regulated NSR 
pollutants, including GHGs.
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. In the case Utility Air Regulatory Group v. Environmental 
Protection Agency, 134 S. Ct. 2427, the Supreme Court said that EPA may 
not treat GHGs as an air pollutant for purposes of determining whether 
a source is a major source required to obtain a PSD permit. The Court 
also said that EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT).
    In accordance with the Court's decision, on April 10, 2015, the 
U.S. Court of Appeals for the District of Columbia Circuit (the D.C. 
Circuit) issued an amended judgment vacating the regulations that 
implemented Step 2 of the EPA's PSD and Title V GHG Tailoring Rule, but 
not the regulations that implement Step 1 of that rule. Step 1 of the 
Tailoring Rule covers sources that are required to obtain a PSD permit 
based on emissions of pollutants other than GHGs. Step 2 applied to 
sources that emitted only GHGs above the thresholds triggering the 
requirement to obtain a PSD permit. The amended judgment preserves, 
without the need for additional rulemaking by the EPA, the application 
of the BACT requirement to GHG emissions from Step 1 or ``anyway'' 
sources. With respect to Step 2 sources, the D.C. Circuit's amended 
judgment vacated the regulations at issue in the litigation, including 
40 CFR 51.166(b)(48)(v), ``to the extent they require a stationary 
source to obtain a PSD permit if greenhouse gases are the only 
pollutant (i) that the source emits or has the potential to emit above 
the applicable major source thresholds, or (ii) for which there is a 
significant emission increase from a modification.''
    EPA is planning to take additional steps to revise Federal PSD 
rules to address the Supreme Court's opinion and subsequent D.C. 
Circuit's ruling. Some states have begun to revise their existing SIP-
approved PSD programs to address these court decisions, and some states 
may prefer not to initiate this process until they have more 
information about the planned revisions to EPA's PSD regulations. EPA 
is not expecting states to have revised their PSD programs in 
anticipation of EPA's planned actions to revise its PSD program rules 
in response to the court decisions. For purposes of infrastructure SIP 
submissions, EPA is only evaluating such submissions to ensure that the 
state's program addresses GHGs consistent with both court decisions.
    At present, EPA is proposing that Michigan's SIP is sufficient to 
satisfy Elements C, D(i)(II), and J with respect to GHGs because the 
PSD permitting program previously approved by EPA into the SIP 
continues to require that PSD permits (otherwise required based on 
emissions of pollutants other than GHGs) contain limitations on GHG 
emissions based on the application of BACT. Although the approved 
Michigan PSD permitting program may currently contain provisions that 
are no longer necessary in light of the Supreme Court decision, this 
does not render the infrastructure SIP submission inadequate to satisfy 
Elements C, (D)(i)(II), and J. The SIP contains the necessary PSD 
requirements at this time, and the application of those requirements is 
not impeded by the presence of other previously-approved provisions 
regarding the permitting of sources of GHGs that EPA does not consider 
necessary at this time in light of the Supreme Court decision.
    For the purposes of the 2015 ozone NAAQS infrastructure SIP, EPA 
reiterates that NSR Reform regulations are not within the scope of 
these actions. Therefore, we are not taking action on existing NSR 
Reform regulations for Michigan. EPA approved Michigan's minor NSR 
program on May 6, 1980 (see 45 FR 29790); and since that date, EGLE and 
EPA have relied on the existing minor NSR program to ensure that new 
and modified sources not captured by the major NSR permitting programs 
do not interfere with attainment and maintenance of the 2015 ozone 
NAAQS.
    Certain sub elements in this section overlap with elements of 
section 110(a)(2)(D)(i), section 110(a)(2)(E) and

[[Page 35251]]

section 110(a)(2)(J). These links will be discussed in the appropriate 
areas below. EPA proposes that Michigan has met the infrastructure SIP 
requirements of section 110(a)(2)(C) with respect to the 2015 ozone 
NAAQS.

D. Section 110(a)(2)(D)--Interstate Transport

    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct 
components, commonly referred to as ``prongs,'' that must be addressed 
in infrastructure SIP submissions. The first two prongs, which are 
codified in section 110(a)(2)(D)(i)(I), prohibit any source or other 
type of emissions activity in one state from contributing significantly 
to nonattainment of the NAAQS in another state (prong 1) and from 
interfering with maintenance of the NAAQS in another state (prong 2). 
The third and fourth prongs, which are codified in section 
110(a)(2)(D)(i)(II), prohibit emissions activity in one state from 
interfering with measures required to prevent significant deterioration 
of air quality in another state (prong 3) or from interfering with 
measures to protect visibility in another state (prong 4).
    Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions 
prohibiting any source or other type of emissions activity in one state 
from contributing significantly to nonattainment, or interfering with 
maintenance, of the NAAQS in another state.
    Section 110(a)(2)(D)(i)(II) requires that SIPs include provisions 
prohibiting any source or other type of emissions activity in one state 
from interfering with measures required to prevent significant 
deterioration of air quality or to protect visibility in another state.
1. Significant Contribution to Nonattainment
    In this rulemaking, EPA is not evaluating section 
110(a)(2)(D)(i)(I) requirements relating to significant contribution to 
nonattainment for the 2015 ozone NAAQS. Instead, EPA will evaluate 
these requirements in a separate rulemaking.
2. Interference With Maintenance
    In this rulemaking, EPA is not evaluating section 
110(a)(2)(D)(i)(I) requirements relating to significant contribution to 
nonattainment for the 2015 ozone NAAQS. Instead, EPA will evaluate 
these requirements in a separate rulemaking.
3. Interference With PSD
    EPA notes that Michigan's satisfaction of the applicable 
infrastructure SIP PSD requirements for the 2015 ozone NAAQS have been 
detailed in the section addressing section 110(a)(2)(C). EPA further 
notes that the proposed actions in that section related to PSD are 
consistent with the proposed actions related to PSD for section 
110(a)(2)(D)(i)(II), and they are reiterated below.
    EPA has previously approved revisions to Michigan's SIP that meet 
certain requirements obligated by the Phase 2 Rule and the 2008 NSR 
Rule. These revisions included provisions that: Explicitly identify 
NOX as a precursor to ozone, explicitly identify 
SO2 and NOX as precursors to PM2.5 and 
regulate condensable PM2.5 and PM10 in 
applicability determinations and establishing emissions limits. EPA has 
also previously approved revisions to Michigan's SIP that incorporate 
the PM2.5 increments and the associated implementation 
regulations including the major source baseline date, trigger date, and 
level of significance for PM2.5 per the 2010 NSR Rule. EPA 
is proposing that Michigan's SIP contains provisions that adequately 
address the 2015 ozone NAAQS.
    States also have an obligation to ensure that sources located in 
nonattainment areas do not interfere with a neighboring state's PSD 
program. One way that this requirement can be satisfied is through an 
NNSR program consistent with the CAA that addresses any pollutants for 
which there is a designated nonattainment area within the state.
    Michigan's EPA approved NNSR regulations found in Part 2 of the 
SIP, specifically in Michigan Administrative Code sections Rules 
336.1220 and R 336.1221, are consistent with 40 CFR 51.165, or 40 CFR 
part 51, appendix S. Therefore, EPA proposes that Michigan has met all 
the applicable PSD requirements for the 2015 ozone NAAQS for transport 
prong 3 related to section 110(a)(2)(D)(i)(II).
4. Interference With Visibility Protection
    In this rulemaking, EPA is proposing to disapprove Michigan's 
satisfaction of the visibility protection requirements of section 
110(a)(2)(D)(i)(II), transport prong 4, for the 2015 ozone NAAQS. 
Michigan has a partially approved Regional Haze Plan and is subject to 
FIPs for a few source categories. See 81 FR 21672 (April 12, 2016) for 
more information on the FIPs that apply to this area. EPA is proposing 
to disapprove because Michigan does not have a fully approved Regional 
Haze SIP; however, because the FIP clocks were started by a different 
action, and the FIPs are already in place, no further action is needed 
as a result of this element.
5. Interstate and International Pollution Abatement
    Section 110(a)(2)(D)(ii) requires each SIP to contain adequate 
provisions requiring compliance with the applicable requirements of 
section 126 and section 115 (relating to interstate and international 
pollution abatement, respectively).
    Section 126(a) requires new or modified sources to notify 
neighboring states of potential impacts from the source. The statute 
does not specify the method by which the source should provide the 
notification. States with SIP-approved PSD programs must have a 
provision requiring such notification by new or modified sources. A 
lack of such a requirement in state rules would be grounds for 
disapproval of this element.
    Michigan has provisions in its EPA approved PSD program in Michigan 
Administrative Code Rule 336.2817 requiring new or modified sources to 
notify neighboring states of potential negative air quality impacts and 
has referenced this program as having adequate provisions to meet the 
requirements of section 126(a). EPA is proposing that Michigan has met 
the infrastructure SIP requirements of section 126(a). Michigan does 
not have any obligations under any other subsection of section 126, nor 
does it have any pending obligations under section 115. EPA, therefore, 
is proposing that Michigan has met all applicable infrastructure SIP 
requirements of section 110(a)(2)(D)(ii) for the 2015 ozone NAAQS.

E. Section 110(a)(2)(E)--Adequate Authority and Resources; State Board 
Requirements

    This section requires each state to provide for adequate personnel, 
funding, and legal authority under state law to carry out its SIP, and 
related issues. Section 110(a)(2)(E)(ii) also requires each state to 
comply with the requirements respecting state boards under section 128.
1. Adequate Resources
    To satisfy the adequate resources requirements of section 
110(a)(2)(E), the state should provide assurances that its air agency 
has adequate resources, personnel, and legal authority to implement the 
relevant NAAQS.
    EGLE's SIP program is funded through 105 and 103 grants and 
matching funds from the state's General Fund. As discussed in earlier 
sections,

[[Page 35252]]

EGLE has the legal authority to carry out the Michigan SIP under Act 
451 and the Executive Reorganization Order 2011-1. Michigan's PSD 
regulations provide adequate resources to permit GHG sources. EPA 
proposes that Michigan has met the infrastructure SIP requirements of 
this portion of section 110(a)(2)(E) with respect to the 2015 ozone 
NAAQS.
2. State Board Requirements
    In this rulemaking, EPA is not proposing to approve or disapprove 
Michigan's satisfaction of the state board requirements of section 
110(a)(2)(E) for the 2015 ozone NAAQS. Instead, EPA will evaluate 
Michigan's compliance with these requirements in a separate rulemaking.

F. Section 110(a)(2)(F)--Stationary Source Monitoring System

    Section 110(a)(2)(F) contains several requirements, each of which 
are described below.
    States must establish a system to monitor emissions from stationary 
sources and submit periodic emissions reports. Each plan shall also 
require the installation, maintenance, and replacement of equipment, 
and the implementation of other necessary steps, by owners or operators 
of stationary sources to monitor emissions from such sources. The state 
plan shall also require periodic reports on the nature and amounts of 
emissions and emissions-related data from such sources, and correlation 
of such reports by each state agency with any emission limitations or 
standards established pursuant to this chapter. Lastly, the reports 
shall be available at reasonable times for public inspection.
    EGLE implements a stationary source monitoring program under the 
authority of MCL 324.5512 and MCL 324.5503 of Act 451. Additional 
emissions testing, sampling, and reporting requirements are found in 
Michigan Administrative Code Rules 336.201 through 336.202 and Rules 
336.2011 through 336.2199. Emissions data is submitted to EPA through 
the National Emissions Inventory system and is available to the public 
online and upon request. EPA proposes that Michigan has satisfied the 
infrastructure SIP requirements of section 110(a)(2)(F) with respect to 
the 2015 ozone NAAQS.

G. Section 110(a)(2)(G)--Emergency Episodes

    This section requires states to have the authority to revise their 
SIPs in response to changes in the NAAQS, availability of improved 
methods for attaining the NAAQS, or to an EPA finding that the SIP is 
substantially inadequate.
    EGLE has the authority to require immediate discontinuation of air 
contamination discharges that constitute an imminent and substantial 
endangerment to public health, safety, welfare, or the environment 
under MCL 324.5518 of Act 451. MCL 324.5530 provides for civil action 
by the Michigan Attorney General for a violation as just described. EPA 
proposes that Michigan has met the applicable infrastructure SIP 
requirements of section 110(a)(2)(G) related to authority to implement 
measures to restrain sources from causing or contributing to emissions 
which present an imminent and substantial endangerment to public health 
or welfare, or the environment with respect to the 2015 ozone NAAQS.

H. Section 110(a)(2)(H)--Future SIP Revisions

    This section requires states to have the authority to revise their 
SIPs in response to changes in the NAAQS, availability of improved 
methods for attaining the NAAQS, or to an EPA finding that the SIP is 
substantially inadequate.
    EGLE continues to update and implement needed revisions to 
Michigan's SIP as necessary to meet ambient air quality standards. 
Authority for EGLE to adopt emissions standards and compliance 
schedules is found at MCL 324.5512 and MCL 324.5503 of Act 451. EPA 
proposes that Michigan has met the infrastructure SIP requirements of 
section 110(a)(2)(H) with respect to the 2015 ozone NAAQS.

I. Section 110(a)(2)(I)--Nonattainment Planning Requirements of Part D

    The CAA requires that each plan or plan revision for an area 
designated as a nonattainment area meet the applicable requirements of 
part D of the CAA. Part D relates to nonattainment areas.
    EPA has determined that section 110(a)(2)(I) is not applicable to 
the infrastructure SIP process. Instead, EPA takes action on part D 
attainment plans through separate processes.

J. Section 110(a)(2)(J)--Consultation With Government Officials; Public 
Notification; PSD; Visibility Protection

    The evaluation of the submissions from Michigan with respect to the 
requirements of section 110(a)(2)(J) is described below.
1. Consultation With Government Officials
    States must provide a process for consultation with local 
governments and Federal Land Managers (FLMs) carrying out NAAQS 
implementation requirements.
    Michigan actively participates in the regional planning efforts 
that include business, community groups, state rule developers, 
representatives from the FLMs, and other affected stakeholders. 
Michigan Administrative Code Rule 336.2816 requires that FLMs are 
provided with notification of permit applications that may impact class 
I areas. Additionally, Michigan is an active member of the Lake 
Michigan Air Directors Consortium, which consists of collaboration with 
the States of Illinois, Wisconsin, Indiana, Minnesota, and Ohio. EPA 
proposes that Michigan has met the infrastructure SIP requirements of 
this portion of section 110(a)(2)(J) with respect to the 2015 ozone 
NAAQS.
2. Public Notification
    Section 110(a)(2)(J) also requires states to notify the public if 
NAAQS are exceeded in an area and to enhance public awareness of 
measures that can be taken to prevent exceedances.
    EGLE notifies the public if there are NAAQS exceedances and of any 
public health hazards associated with those exceedances through 
CleanAirAction!,\8\ AirNow,\9\, and EnviroFlash \10\ as well as posting 
on its website.\11\ EGLE published an annual air quality report 
comparing Michigan monitors to the NAAQS. EPA proposes that Michigan 
has met the infrastructure SIP requirements of this portion of section 
110(a)(2)(J) with respect to the 2015 ozone NAAQS.
---------------------------------------------------------------------------

    \8\ https://www.wmcac.org/todays-forecast.
    \9\ https://www.airnow.gov/.
    \10\ https://www.michigan.gov/egle/0,9429,7-135-3310_70316_4195-
101321-
,00.html#:~:text=EnviroFlash%20is%20a%20free%20service,match%20expect
ed%20air%20quality%20conditions.
    \11\ https://www.michigan.gov/egle/0,9429,7-135-3310-,00.html.
---------------------------------------------------------------------------

3. PSD
    States must meet applicable requirements of section 110(a)(2)(C) 
related to PSD. EGLE's PSD program in the context of infrastructure 
SIPs has already been discussed in the paragraphs addressing section 
110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes that the proposed 
actions for those sections are consistent with the proposed actions for 
this portion of section 110(a)(2)(J). Therefore, EPA proposes that 
Michigan has met all of the infrastructure SIP requirements for

[[Page 35253]]

PSD associated with section 110(a)(2)(D)(J) for the 2015 ozone NAAQS.
4. Visibility Protection
    States are subject to visibility and regional haze program 
requirements under part C of the CAA (which includes sections 169A and 
169B). In the event of the establishment of a new NAAQS, however, the 
visibility and regional haze program requirements under part C do not 
change. Thus, we find that there is no new visibility obligation 
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes 
effective. In other words, the visibility protection requirements of 
section 110(a)(2)(J) are not germane to infrastructure SIPs for the 
2015 ozone NAAQS.

K. Section 110(a)(2)(K)--Air Quality Modeling/Data

    SIPs must provide for performing air quality modeling for 
predicting effects on air quality of emissions of any NAAQS pollutant 
and submission of such data to EPA upon request.
    EGLE continues to review the potential impact of major, and some 
minor, new and modified sources using computer models. Effective 
February 16, 2017, EPA updated the modeling appendix at 40 CFR part 51, 
appendix W (82 FR 5182). This action included enhancements to the 
formulation and application of the EPA's preferred near-field 
dispersion modeling system, AERMOD (American Meteorological Society 
(AMS)/EPA Regulatory Model), and the incorporation of a tiered 
demonstration approach to address the secondary chemical formation of 
ozone and PM2.5 associated with precursor emissions from 
single sources. EPA proposed approval of Michigan's Part 9 Rule Update 
on March 24, 2021 (86 FR 15837) incorporating the CFR update. The 
finalization of the rule update will dictate finalization of this 
element. Modeling data are available to EPA or other interested parties 
upon request. EPA proposes that Michigan has met the infrastructure SIP 
requirements of section 110(a)(2)(K) with respect to the 2015 ozone 
NAAQS.

L. Section 110(a)(2)(L)--Permitting Fees

    EGLE implements and operates the title V permit program, which EPA 
approved on December 4, 2001 (66 FR 62969) EPA approved revisions to 
the program on February 28, 2006 (71 FR 9934). EGLE's authority to levy 
and collect an annual air quality fee from fee-subject facilities is 
found in section 324.5522 of Act 451. EPA proposes that Michigan has 
met the infrastructure SIP requirements of section 110(a)(2)(L) with 
respect to the 2015 ozone NAAQS.

M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local 
Entities

    States must consult with and allow participation from local 
political subdivisions affected by the SIP.
    EGLE regularly works with local political subdivisions for 
attainment planning purposes and actively participates in regional 
planning organizations. Rulemaking is subject to notice, comment, and 
hearing requirements under the Michigan Administrative Procedures Act, 
1969 PA 306 and is authorized in MCL 324.5512. EPA proposes that 
Michigan has met the infrastructure SIP requirements of section 
110(a)(2)(M) with respect to the 2015 ozone NAAQS.

III. What action is EPA taking?

    EPA is proposing to approve most elements and disapprove one 
element of a submission from EGLE certifying that its current SIP is 
sufficient to meet the required infrastructure elements under sections 
110(a)(1) and (2) for the 2015 ozone NAAQS. The disapproved prong 4 
does not begin a new FIP clock, as FIPs are already in place in 
response to those deficiencies.
    EPA's proposed actions for the state's satisfaction of 
infrastructure SIP requirements, by element of section 110(a)(2) are 
contained in the table below.

------------------------------------------------------------------------
                         Element                            2015 Ozone
------------------------------------------------------------------------
(A)--Emission limits and other control measures.........               A
(B)--Ambient air quality monitoring/data system.........               A
(C)1--Program for enforcement of control measures.......               A
(C)2--Minor NSR.........................................               A
(C)3--PSD...............................................               A
(D)1--I Prong 1: Interstate transport--significant                     A
 contribution to nonattainment..........................
(D)2--I Prong 2: Interstate transport--interference with               A
 maintenance............................................
(D)3--II Prong 3: Interstate transport--interference                   A
 with PSD...............................................
(D)4--II Prong 4: Interstate transport--interference                   D
 with visibility protection.............................
(D)5--Interstate and international pollution abatement..               A
(E)1--Adequate resources................................               A
(E)2--State board requirements..........................              NA
(F)--Stationary source monitoring system................               A
(G)--Emergency powers...................................               A
(H)--Future SIP revisions...............................               A
(I)--Nonattainment planning requirements of part D......             (*)
(J)1--Consultation with government officials............               A
(J)2--Public notification...............................               A
(J)3--PSD...............................................               A
(J)4--Visibility protection.............................             (*)
(K)--Air quality modeling/data..........................               A
(L)--Permitting fees....................................               A
(M)--Consultation/participation by affected local                      A
 entities...............................................
------------------------------------------------------------------------

    In the above table, the key is as follows:

A...............................  Approve.
D...............................  Disapprove.
NA..............................  No Action/Separate Rulemaking.
*...............................  Not germane to infrastructure SIPs.
 

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not

[[Page 35254]]

impose additional requirements beyond those imposed by state law. For 
that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: June 28, 2021.
Cheryl Newton,
Acting Regional Administrator, Region 5.
[FR Doc. 2021-14152 Filed 7-1-21; 8:45 am]
BILLING CODE 6560-50-P