Air Plan Approval; Michigan; Sulfur Dioxide Clean Data Determination for St. Clair, 69173-69178 [2021-26471]
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Federal Register / Vol. 86, No. 232 / Tuesday, December 7, 2021 / Rules and Regulations
rule will not have federalism
implications.
B. Executive Order 13211, Regulations
That Significantly Affect Energy Supply,
Distribution, or Use
The FAA analyzed this rule under
Executive Order 13211. The agency has
determined it is not a ‘‘significant
energy action’’ under the executive
order and will not be likely to have a
significant adverse effect on the supply,
distribution, or use of energy.
C. Executive Order 13609, Promoting
International Regulatory Cooperation
Executive Order 13609 promotes
international regulatory cooperation to
meet shared challenges involving
health, safety, labor, security,
environmental, and other issues and to
reduce, eliminate, or prevent
unnecessary differences in regulatory
requirements. The FAA has analyzed
this action under the policies and
agency responsibilities of Executive
Order 13609 and has determined that
this action will have no effect on
international regulatory cooperation.
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IX. Additional Information
A. Electronic Access
Except for classified material, all
documents the FAA considered in
developing this rule, including
economic analyses and technical
reports, may be accessed from the
internet through the docket for this
rulemaking.
Those documents may be viewed
online at https://www.regulations.gov
using the docket number listed above. A
copy of this rule will be placed in the
docket. Electronic retrieval help and
guidelines are available on the website.
It is available 24 hours each day, 365
days each year. An electronic copy of
this document may also be downloaded
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at https://www.govinfo.gov. A copy may
also be found at the FAA’s Regulations
and Policies website at https://
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Copies may also be obtained by
sending a request to the Federal
Aviation Administration, Office of
Rulemaking, ARM–1, 800 Independence
Avenue SW, Washington, DC 20591, or
by calling (202) 267–9677. Commenters
must identify the docket or notice
number of this rulemaking.
B. Small Business Regulatory
Enforcement Fairness Act
The Small Business Regulatory
Enforcement Fairness Act of 1996
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(SBREFA) (Pub. L. 104–121) (set forth as
a note to 5 U.S.C. 601) requires the FAA
to comply with small entity requests for
information or advice about compliance
with statutes and regulations within its
jurisdiction. A small entity with
questions regarding this document may
contact its local FAA official, or the
persons listed under the FOR FURTHER
INFORMATION CONTACT heading at the
beginning of the preamble. To find out
more about SBREFA on the internet,
visit https://www.faa.gov/regulations_
policies/rulemaking/sbre_act/.
List of Subjects in 14 CFR Part 91
Air traffic control, Aircraft, Airmen,
Airports, Aviation safety, Freight,
Yemen.
The Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends chapter I of title 14, Code of
Federal Regulations, as follows:
PART 91—GENERAL OPERATING AND
FLIGHT RULES
1. The authority citation for part 91
continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g), 40101,
40103, 40105, 40113, 40120, 44101, 44111,
44701, 44704, 44709, 44711, 44712, 44715,
44716, 44717, 44722, 46306, 46315, 46316,
46504, 46506–46507, 47122, 47508, 47528–
47531, 47534, Pub. L. 114–190, 130 Stat. 615
(49 U.S.C. 44703 note); articles 12 and 29 of
the Convention on International Civil
Aviation (61 Stat. 1180), (126 Stat. 11).
2. Amend § 91.1611 by revising
paragraph (e) to read as follows:
■
§ 91.1611 Special Federal Aviation
Regulation No. 115—Prohibition Against
Certain Flights in Specified Areas of the
Sanaa Flight Information Region (FIR)
(OYSC).
*
*
*
*
*
(e) Expiration. This SFAR will remain
in effect until January 7, 2025. The FAA
may amend, rescind, or extend this
SFAR, as necessary.
Issued in Washington, DC, under the
authority of 49 U.S.C. 106(f) and (g),
40101(d)(1), 40105(b)(1)(A), and
44701(a)(5), on or about December 1,
2021.
Steve Dickson,
Administrator.
[FR Doc. 2021–26521 Filed 12–6–21; 8:45 am]
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69173
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2020–0385; FRL–8826–02–
R5]
Air Plan Approval; Michigan; Sulfur
Dioxide Clean Data Determination for
St. Clair
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is making a determination
that the St. Clair sulfur dioxide (SO2)
nonattainment area has attained the
2010 primary SO2 National Ambient Air
Quality Standard (2010 SO2 NAAQS).
This determination suspends certain
planning requirements and sanctions for
the nonattainment area for as long as the
area continues to attain the 2010 SO2
NAAQS. EPA proposed this action on
August 17, 2021, and received four
supportive comments and one set of
adverse comments.
DATES: This final rule is effective on
December 7, 2021.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2020–0385. All
documents in the docket are listed on
the www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
i.e., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either through
www.regulations.gov or at the
Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays and
facility closures due to COVID–19. We
recommend that you telephone Mary
Portanova, Environmental Engineer, at
(312) 353–5954 before visiting the
Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Mary Portanova, Environmental
Engineer, Control Strategies Section, Air
Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353–5954,
portanova.mary@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
SUMMARY:
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‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
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I. Background Information
On August 17, 2021 (86 FR 45947),
EPA proposed to determine that the St.
Clair SO2 nonattainment area (St. Clair
area) has attained the 2010 SO2 NAAQS.
This determination, also known as a
Clean Data Determination (CDD), would
suspend certain planning requirements
for the nonattainment area for as long as
the area continues to attain the 2010
SO2 NAAQS. EPA also proposed to
require the Michigan Department of
Environment, Great Lakes, and Energy
(EGLE) to submit annual statements to
address whether the St. Clair area has
continued to attain the 2010 SO2
NAAQS. A detailed analysis of EPA’s
proposed decision was provided in the
August 17, 2021, notice of proposed
rulemaking (NPRM) and will not be
restated here. The public comment
period for this NPRM ended on
September 16, 2021. EPA received five
comment submittals on the proposed
action.
II. Response to Comments
EPA received two anonymous
comments and two comments from
citizens, all in support of EPA’s action.
EPA acknowledges these supportive
comments. EPA also received a detailed
comment document from the Sierra
Club (‘‘the commenter’’), which
includes adverse comments on EPA’s
proposed action. EPA is addressing
these comments below. EPA notes that
the commenter frequently refers to
information given in an EGLE document
which was not part of EGLE’s July 24,
2020, CDD submittal. The document is
entitled ‘‘Proposed Sulfur Dioxide OneHour National Ambient Air Quality
Standard State Implementation Plan
(SIP) for St. Clair County Nonattainment
Area,’’ dated October 7, 2019. EPA will
refer to this document as the ‘‘2019
draft.’’ The commenter claimed that this
document was submitted to EPA in
2019 for approval and has requested
that if there is a final version of the
document, that it be added to the docket
for this action, but in fact, neither the
‘‘2019 draft’’ nor any final version of the
‘‘2019 draft’’ document was submitted
to EPA as a SIP revision or as part of
EGLE’s CDD request. EPA considers the
‘‘2019 draft’’ document and its contents
to be a draft State product which
predated and has limited relevance to
EGLE’s July 24, 2020, CDD request. EPA
has no final version of the ‘‘2019 draft’’
to docket, but will retain the ‘‘2019
draft’’ in Docket ID No. EPA–R05–OAR–
2020–0385 as an exhibit attached to
Sierra Club’s comment.
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Comment A: At several places in the
Sierra Club comment document, the
commenter suggests that certain
emission reductions which have been
discussed or imposed in the time since
the St. Clair area was designated
nonattainment should be evaluated for
adequacy to provide for full attainment
or imposed quickly under a State or
Federal plan to provide for healthy air.
The commenter additionally requests
that EGLE should perform various new
modeling analyses either before the CDD
is finalized, or during the time that the
CDD is in place. These requested
analyses would be used to show
whether further State regulations are
needed to bring healthy air into the St.
Clair area. The commenter also states
that EPA should not allow delays in
achieving healthy air in the St. Clair
area.
Response A: In its August 17, 2021,
NPRM, EPA presented evidence and
proposed to find that the St. Clair area
has attained the 1-hour SO2 NAAQS as
of 2017–2020. To the extent that the
commenter is asserting that additional
measures must be adopted in order for
the area to attain the NAAQS, we do not
agree. The CDD would cause no delays,
as the St. Clair area and surrounding
communities have already demonstrated
air quality values that meet the healthbased NAAQS. Therefore, Clean Air Act
(CAA) planning requirements for
nonattainment areas can be suspended
under a CDD, and no further analyses or
emission reduction actions are required
of EGLE at this time. As stated in the
proposal, EGLE will be required to
provide demonstrations on an annual
basis that the area continues to attain
the NAAQS, and if EPA determines in
the future that the area is no longer
attaining the NAAQS, the CDD would
be rescinded.
Comment B: The commenter asserted
that EGLE’s request for a CDD relied on
the assumption that the St. Clair plant’s
expected closure will allow the State to
formally demonstrate attainment,
despite the emissions from the Belle
River plant and a new gas power plant.
The commenter stated that this
assumption has not been tested and
should be tested before moving ahead
with the CDD. The commenter stated
that nothing in the CAA allows EPA to
suspend immediate action in
anticipation of emission reductions
accompanying a plant retirement that is
still more than a year away.
Response B: The plan to close the St.
Clair plant in 2022 was not a factor
which EGLE or EPA relied upon to
justify the determination of attainment.
EGLE’s CDD request relied on actual
emissions and monitoring data, and a
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finding that the area is attaining the
NAAQS based on those emissions and
monitoring data. In finalizing a CDD,
EPA is suspending the CAA obligation
to submit attainment planning
requirements because the area is
currently attaining the standard,
regardless of any anticipated future
emission reductions, including the
planned plant retirement. EPA does not
agree that additional modeling analyses
are required at this time for EPA to find
that this area is currently attaining and
to finalize the CDD. Such analyses that
the commenter is requesting might
instead be expected in a future
redesignation request or nonattainment
SIP. It is worth noting that although the
St. Clair CDD is already fully supported
by air quality data, if a coal power plant
were to permanently and enforceably
close in the St. Clair area, any actual
SO2 emission decreases that occur
would only help the area stay in
attainment under the CDD and help
provide a path forward to eventual
redesignation of the area to attainment.
Comment C: The commenter stated
that EPA should ensure it is not
delaying action that may be needed to
demonstrate that the area is meeting the
NAAQS based not only on actual
emissions, which can increase, but on
allowable emissions. The commenter
stated that EPA should determine if
further action will be needed following
St. Clair’s retirement, and if so, EGLE
should be developing additional
measures now, rather than waiting until
a monitoring violation occurs and the
CDD must be rescinded. Waiting to
restart the process of developing needed
measures until after rescission of the
CDD would cause delays.
Response C: The St. Clair area is
currently meeting the 2010 SO2 NAAQS
and therefore, EPA may finalize this
CDD. Enforceable allowable emission
limits would be expected in a
subsequent redesignation request.
Again, however, EPA does not require
additional action from EGLE for the St.
Clair area while the CDD is in place and
the area continues to attain the
standards.
Comment D: The commenter stated
that EPA’s NPRM does not explicitly
address whether the DTE monitors meet
the criteria in 40 CFR part 58,
appendices A, C, and E; whether EGLE
submitted relevant information for EPA
to make this assessment, and whether
relying on this data is consistent with
other treatment of third-party
monitoring.
Response D: As stated in the NPRM,
EPA reviewed monitoring data and
evidence that quality assurance
activities had been performed. EPA
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monitoring experts found that the thirdparty monitoring network and the data
quality at the St. Clair area monitors are
consistent with EPA requirements and
are acceptable to rely upon to
characterize air quality in the St. Clair
area. The NPRM inadvertently omitted
specific reference to a letter EGLE
submitted to EPA on October 28, 2020,
which provides EGLE’s confirmation
that the two industrial SO2 monitoring
sites operated by DTE meet the quality
assurance and siting requirements in 40
CFR part 58, appendix A and D,
respectively. This letter has been added
to Docket ID No. EPA–R05–OAR–2020–
0385. Additionally, the SO2 monitoring
methods used at these two monitoring
sites are reference or equivalent
methods as defined in 40 CFR part 50.
Comment E: The commenter
expressed concern that the two DTE
monitors could be missing maximum
concentrations of the SO2 plume. The
commenter cited diagrams from
modeling results shown in the ‘‘2019
draft.’’ The commenter stated that
diagrams in this document appear to
indicate an additional area of high
modeled concentrations in the St. Clair
area which does not currently contain a
monitor. The commenter asked EPA to
consider how to obtain monitoring
results from that third location.
Response E: As previously stated,
EPA relied on the modeling analysis in
EGLE’s July 24, 2020 CDD submittal,
which used actual facility SO2
emissions and an updated
meteorological data set from Pontiac,
Michigan, 2017–2019. This meteorology
was determined to be more complete
and more representative of the St. Clair
area than other available meteorological
datasets which EGLE had considered or
used earlier in its other work for the St.
Clair area. The CDD modeling of 2017–
2019 actual emissions which EGLE
submitted indicated that the highest
modeled concentrations tended to occur
most frequently near the Remer monitor
location. EPA’s ‘‘SO2 NAAQS
Designations Source-Oriented
Monitoring Technical Assistance
Document’’ (SO2 Monitoring TAD)
considers both high relative magnitude
of modeled results, and the frequency of
a location experiencing maximum
values, in helping to choose appropriate
monitoring sites. The third location in
the St. Clair area northwest of the
plants, which the commenter appears to
refer to, does not appear as a location of
higher concentrations than the
monitored locations in EGLE’s CDD
modeling analysis. The CDD’s modeled
values in the northwest location are
similar to but lower than the CDD’s
modeled values in the area of maximum
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concentration near the Remer monitor’s
location. EPA is satisfied that the two
DTE monitors provide a reasonable
representation of the maximum impacts
from the two St. Clair sources and that
the imposition of a third monitor is not
justified by current information.
Comment F: The commenter noted
that the Belle River plant had a 7-month
outage in 2019 and stated that EPA does
not address how this outage affects its
assessment that the 2017–2019
monitoring data represents three full
years, particularly in the warmer
months, or whether the outage skewed
the results of the modeling so that it is
not representative of maximum SO2
emissions observed during typical
operations.
Response F: The Belle River plant did
have outages at Unit 1 from February
2019 to June 2019; from November 2019
to December 2019, and from January
2020 to February 2020, which led to an
overall emission reduction of over 6,000
tons of SO2. These outages would not
affect most of the warmer months in the
St. Clair area, so presumably the
ambient air concentrations measured at
the DTE monitors during the summer
and early fall of 2019 would represent
normal expected conditions for that
year.
The monitoring data used to support
the CDD represents actual ambient air
quality during 2017–2019. Air quality
monitoring data can reflect fluctuations
in source operating conditions,
meteorology, and other factors. The
Belle River plant Unit 1 outage does not
invalidate the monitoring data. The use
of three years of data to calculate a
monitor’s design value also helps
balance variations in emissions and
other factors. In addition, the CDD is
supported by modeling of actual current
facility emissions (in this case, 2017–
2019), in order to demonstrate that the
NAAQS are attained. The analysis is not
intended to evaluate only maximum
typical emissions. EPA believes it is
appropriate to model the true actual
emissions for the modeling period,
which encompassed the most recent
three years of data available when the
CDD was requested.
Comment G: The commenter noted
that EGLE had used a single background
value in its modeling for the initial
nonattainment designation
recommendation for the St. Clair area,
but later revised the background
concentration to a set of lower values for
the ‘‘2019 draft’’ and another set of
background values in the CDD
submittal. The commenter questioned
EGLE’s claim that approximately 90
hours of data were considered in each
season and asked that EPA explain the
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appropriateness of the final background
values EGLE used. The commenter
asked that EGLE’s background
spreadsheet be added to the CDD
action’s docket record and inquired
whether EPA limits the number of hours
or wind sectors that can be excluded
from a background data set.
Response G: Dispersion modeling
analysis can be an iterative process, in
which initial conservative input data is
later evaluated to better reflect actual
ambient air conditions within the
modeling domain, or more accurate
emissions and facility configuration
data at the modeled sources. Such
adjustments can provide for more
appropriate and accurate results. In its
initial nonattainment recommendation
analysis of the St. Clair area’s 2012–
2014 SO2 emissions submitted on
September 18, 2015, Michigan chose a
conservative Tier I background value.
Based in part on the results of the
modeling analysis, the State
recommended to EPA that the St. Clair
area be designated nonattainment.
These modeling results were also used
to help suggest boundaries for the St.
Clair nonattainment area. Having made
its nonattainment recommendation,
Michigan did not decide to further
refine its 2015 modeling or the
background value it used.
However, EPA concurs with EGLE
that additional refinement of input data
such as background concentrations can
be part of an acceptable approach to
support future planning, or to
characterize an area’s air quality. The
background analysis EGLE submitted
with its July 24, 2020, CDD submittal
used monitored ambient air quality data
from 2017–2019 at the Port Huron
monitor, selected by season and hour of
day with wind direction exclusions to
avoid double-counting of the St. Clair
plants’ impacts and to avoid
overestimating SO2 impacts from
facilities closer to the background
monitor which would not be expected
to actually impact the St. Clair area
when winds came from their locations.
EPA accepted this approach, which is a
commonly used method of addressing
background in SO2 modeling analyses,
fully supported by EPA’s modeling
guidance. The background values used
in the CDD submittal work come from
a newer set of air quality data than the
background values in the ‘‘2019 draft,’’
which may help explain the difference
between the data sets cited by the
commenter. The actual number of
acceptable background exclusions
depends on the wind patterns
experienced at the Port Huron monitor,
and is not specifically limited by EPA
guidance as long as the monitor meets
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EPA’s data completeness requirements,
which Port Huron’s monitor does. EGLE
may not have had 90 hours in every
season due to exclusions, but EPA finds
that EGLE’s background calculations are
generally conservative and acceptable in
the modeled evaluation submitted with
EGLE’s CDD request. EPA has added
EGLE’s background spreadsheet to
Docket ID No. EPA–R05–OAR–2020–
0385.
Additionally, EPA calculated a much
more conservative Tier I background
calculation which used the first high
concentration to determine one
background value for each year 2017–
2019. This resulted in the values 7.5
parts per billion (ppb), 6.5 ppb, and 14.4
ppb for 2017, 2018, and 2019,
respectively, for a three-year averaged
background value of 9.5 ppb. Adding
this Tier 1 background value of 9.5 ppb
to the CDD modeled design
concentration of 64.4 ppb (which
already included the season by hour of
day values, embedded in the final
modeled result) gives a total, very
conservative design value of 73.9 ppb,
which double counts background but is
still below the NAAQS. EPA does not
intend to impose this Tier I background
value upon EGLE’s submitted analysis,
but only finds that EGLE’s analysis
would still show attainment, even if the
submitted background values were
rejected.
Comment H: EGLE does not state
what years the Port Huron data is from
on page 4 of its CDD submittal.
Response H: EGLE’s table on page 4
of its CDD submittal indicates that the
Port Huron background data was from
2017–2019.
Comment I: The commenter noted
that the NPRM appeared to reverse the
2017–2019 monitor values which EPA
cited as indicating that the modeling
and monitoring results matched well
near the monitor locations.
Response I: EPA acknowledges that
there is an error in the narrative on page
45949 of the NPRM. The values in Table
1 and the comparison of modeled to
monitored design values at each
monitor are correct as given in the
NPRM. The correct wording on page
45949 of the NPRM should be ‘‘The
model’s predicted design value at the
Mills monitor location was 47.7 ppb,
compared to the monitored design value
of 45 ppb, and the model’s predicted
design value at the Remer monitor
location was 52.7 ppb, compared to the
monitored design value of 54 ppb.’’
Comment J: The commenter stated
that if EPA finds that the area is not
meeting the NAAQS after reviewing
these comments, it should move
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forward with a Federal Implementation
Plan.
Response J: EPA believes that EGLE
has adequately demonstrated that the St.
Clair area is currently meeting the 2010
SO2 NAAQS. If it is necessary to rescind
the CDD in future, EPA will follow the
requirements of the CAA.
Comment K: The commenter said that
EPA should bolster its plan for oversight
of the area’s continued compliance with
the NAAQS with requirements for data
submittals on a more frequent basis than
an annual report, such as monthly or
bimonthly. The commenter also
requested that EPA require the DTE
monitors to run at least until the area is
redesignated, not just until the St. Clair
plant closes.
Response K: Areas may verify
continued attainment of the NAAQS
using air quality monitoring data, which
is certified on an annual basis. EPA’s
inclusion of a requirement that EGLE
submit an annual report demonstrating
the area’s continued attainment permits
the State to provide relevant
information to support such a finding,
including monitoring data, emissions
data, or other information. This
approach is reasonable given the
combination of monitoring and
modeling data supporting this final
CDD. Moreover, the annual basis for the
required demonstration mirrors the
certification schedule for air quality
monitoring data. We therefore think it
represents a reasonable interval for
EGLE’s reporting requirement. The
NPRM (page 45948) proposed to require
EGLE to submit an annual statement to
EPA addressing whether the St. Clair
area is continuing to attain the 2010 SO2
NAAQS. This is a new requirement
intended to bolster and formalize the
continuing verification of the area’s air
quality. EPA does not believe that it is
necessary to further modify its proposed
schedule for more frequent formal
reports from EGLE. EGLE uploads new
monitoring data to EPA’s Air Quality
System (AQS) database frequently.
Nothing in the CDD precludes EGLE
from routinely reviewing its available
air quality information on a short-term
basis.
EPA will work with EGLE to ensure
that the Mills and Remer monitors
continue to operate at least until a full
redesignation of the St. Clair area
occurs.
After careful consideration of public
comments, EPA is finalizing the August
17, 2021, proposed finding that the St.
Clair area is attaining the 2010 SO2
NAAQS. EPA is therefore also finalizing
the CDD for the St. Clair nonattainment
area.
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III. Final Action
EPA is approving EGLE’s request for
a CDD for the St. Clair nonattainment
area in St. Clair County, Michigan. The
nonattainment area consists of a portion
of southeastern St. Clair County,
Michigan, located northeast of Detroit.
The nonattainment area shares a border
with Ontario, Canada along the St. Clair
River. The area’s complete boundary
description can be found at 40 CFR
81.323. EPA’s final determination
suspends the requirements for EGLE to
submit an attainment demonstration
and other associated nonattainment
planning requirements for the St. Clair
nonattainment area so long as the St.
Clair area continues to attain the 2010
SO2 NAAQS. Finalizing this action does
not constitute a redesignation of the St.
Clair area to attainment of the 2010 SO2
NAAQS under section 107(d)(3) of the
CAA. The St. Clair area will remain
designated nonattainment for the 2010
SO2 NAAQS until such time as EPA
determines that the area meets the CAA
requirements for redesignation to
attainment and takes action to
redesignate the area.
As noted in the proposal on this
action, sanctions clocks were started on
October 21, 2019, for the State’s failure
to submit all components of the SO2
part D nonattainment area SIP,
including the emissions inventory,
attainment demonstration, reasonably
available control measures (RACM)
including reasonably available control
technology (RACT), enforceable
emission limitations and control
measures, reasonable further progress
(RFP) plan, nonattainment new source
review (NNSR), and contingency
measures.
With the approval of this CDD, only
the emissions inventory and NNSR—
i.e., the non-planning requirements—
need to be addressed. EPA found
EGLE’s June 30, 2021, submittal of the
St. Clair area’s emissions inventory and
NNSR elements complete in a letter
dated October 7, 2021. On October 26,
2021, (86 FR 59073), EPA proposed to
approve EGLE’s June 30, 2021, submittal
of the St. Clair area’s emissions
inventory and NNSR elements.
Therefore, a complete submittal has
been made by the State addressing the
finding of failure to submit and, as a
result, both the NNSR 2:1 offset
sanctions and highway funding
sanctions that were in place are now
suspended as long as the area continues
to demonstrate it is attaining the
NAAQS.
In accordance with 5 U.S.C. 553(d) of
the Administrative Procedure Act
(APA), EPA finds there is good cause for
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these actions to become effective
immediately upon publication. The
immediate effective date for this action
is authorized under both 5 U.S.C.
553(d)(1) and U.S.C. 553(d)(3).
Section 553(d)(1) of the APA provides
that final rules shall not become
effective until 30 days after publication
in the Federal Register ‘‘except . . . a
substantive rule which grants or
recognizes an exemption or relieves a
restriction.’’ The purpose of this
provision is to ‘‘give affected parties a
reasonable time to adjust their behavior
before the final rule takes effect.’’
Omnipoint Corp. v. Fed. Commc’n
Comm’n, 78 F.3d 620, 630 (D.C. Cir.
1996); see also United States v.
Gavrilovic, 551 F.2d 1099, 1104 (8th Cir.
1977) (quoting legislative history).
However, when the agency grants or
recognizes an exemption or relieves a
restriction, affected parties do not need
a reasonable time to adjust because the
effect is not adverse. EPA has
determined that this rule relieves a
restriction because it relieves the State
of planning requirements. This action
has no effect on the sources in the
nonattainment area, as the area will
continue to be nonattainment and
therefore continue to be subject to
NNSR permitting requirements.
Section 553(d)(3) of the APA provides
that final rules shall not become
effective until 30 days after publication
in the Federal Register ‘‘except . . . as
otherwise provided by the agency for
good cause.’’ The purpose of this
provision is to ‘‘give affected parties a
reasonable time to adjust their behavior
before the final rule takes effect.’’
Omnipoint Corp. v. Fed. Commc’n
Comm’n, 78 F.3d 620, 630 (D.C. Cir.
1996); see also United States v.
Gavrilovic, 551 F.2d 1099, 1104 (8th Cir.
1977) (quoting legislative history). Thus,
in determining whether good cause
exists to waive the 30-day delay, an
agency should ‘‘balance the necessity
for immediate implementation against
principles of fundamental fairness
which require that all affected persons
be afforded a reasonable amount of time
to prepare for the effective date of its
ruling.’’ Gavrilovic, 551 F.2d at 1105.
EPA has determined that there is good
cause for making this final rule effective
immediately because this rule does not
create any new regulatory requirements
such that affected parties would need
time to prepare before the rule takes
effect. For these reasons, EPA finds good
cause under both 5 U.S.C. 553(d)(1) and
U.S.C. 553(d)(3) for this action to
become effective on the date of
publication of this action.
VerDate Sep<11>2014
16:02 Dec 06, 2021
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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
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
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69177
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by February 7, 2022. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action 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, Incorporation by
reference, Intergovernmental relations,
Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: December 1, 2021.
Debra Shore,
Regional Administrator, Region 5.
For the reasons stated in the
preamble, EPA amends 40 CFR part 52
as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
2. In § 52.1170, the table in paragraph
(e) is amended by adding an entry for
‘‘2010 Sulfur Dioxide Clean Data
Determination’’ immediately after the
entry for ‘‘List of permit applications;
list of consent order public notices;
notice, opportunity for public comment
■
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Federal Register / Vol. 86, No. 232 / Tuesday, December 7, 2021 / Rules and Regulations
and public hearing required for certain
permit actions’’ to read as follows:
§ 52.1170
*
*
Identification of plan.
*
*
(e) * * *
*
EPA-APPROVED MICHIGAN NONREGULATORY AND QUASI-REGULATORY PROVISIONS
Name of nonregulatory
SIP provision
Applicable geographic
or nonattainment area
*
2010 Sulfur Dioxide
Clean Data Determination.
*
*
St. Clair area ................
*
*
*
*
*
*
*
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 223
[Docket No. 211201–0248]
RIN 0648–BK98
Extension of the Authorized Restricted
Tow Times in Lieu of Turtle Excluder
Devices for an Additional 30 Days by
Shrimp Trawlers in Specific Louisiana
Waters
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule.
AGENCY:
NMFS issues this temporary
rule for a period of 30 days, to allow
shrimp fishers to use limited tow times
as an alternative to Turtle Excluder
Devices (TEDs) in specific Louisiana
State waters (from 91°23′ West
longitude eastward to the Louisiana/
Mississippi border, and seaward out 3
nautical miles (5.6 kilometers)). This
action is necessary because
environmental conditions resulting from
Hurricane Ida are preventing fishers
from using TEDs effectively.
DATES: Effective from December 7, 2021,
through January 5, 2022.
FOR FURTHER INFORMATION CONTACT: Bob
Hoffman, 727–824–5312.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Background
All sea turtles that occur in U.S.
waters are listed as either endangered or
16:02 Dec 06, 2021
7/24/2020
*
[FR Doc. 2021–26471 Filed 12–6–21; 8:45 am]
VerDate Sep<11>2014
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date
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EPA Approval date
Comments
*
*
12/7/2021, [INSERT
FEDERAL REGISTER CITATION].
*
*
EPA’s final determination suspends the requirements for EGLE to submit an attainment
demonstration and other associated nonattainment planning requirements for the St.
Clair nonattainment area requirements for the
nonattainment area for as long as the area
continues to attain the 2010 SO2 NAAQS.
*
*
threatened under the Endangered
Species Act of 1973 (ESA). The Kemp’s
ridley (Lepidochelys kempii),
leatherback (Dermochelys coriacea), and
hawksbill (Eretmochelys imbricata)
turtles are listed as endangered. The
loggerhead (Caretta caretta) and green
(Chelonia mydas) turtles are listed as
threatened, except for breeding
populations of green turtles in Florida
and on the Pacific coast of Mexico,
which are listed as endangered.
Sea turtles are incidentally taken, and
some are killed, as a result of numerous
activities, including fishery-related
trawling activities in the Gulf of Mexico
and along the Atlantic seaboard. Under
the ESA and its implementing
regulations, the taking of sea turtles is
prohibited, with exceptions identified
in 50 CFR 223.206(d), or according to
the terms and conditions of a biological
opinion issued under section 7 of the
ESA, or according to an incidental take
permit issued under section 10 of the
ESA. The incidental taking of turtles
during shrimp or summer flounder
trawling is exempted from the taking
prohibition of section 9 of the ESA, if
the conservation measures specified in
the sea turtle conservation regulations
(50 CFR part 223) are followed. The
regulations require most shrimp
trawlers and summer flounder trawlers
operating in the southeastern United
States (Atlantic area, Gulf area, and
summer flounder sea turtle protection
area, see 50 CFR 223.206) to have a
NMFS-approved TED installed in each
net that is rigged for fishing to allow sea
turtles to escape. TEDs currently
approved by NMFS include single-grid
hard TEDs and hooped hard TEDs
conforming to a generic description, the
flounder TED, and one type of soft
TED—the Parker soft TED (see 50 CFR
223.207).
TEDs incorporate an escape opening,
usually covered by a webbing flap,
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*
*
which allows sea turtles to escape from
trawl nets. To be approved by NMFS, a
TED design must be shown to be 97
percent effective in excluding sea turtles
during testing based upon specific
testing protocols (50 CFR 223.207(e)(1)).
Approved hard TEDs are described in
the regulations (50 CFR 223.207(a))
according to generic criteria based upon
certain parameters of TED design,
configuration, and installation,
including height and width dimensions
of the TED opening through which the
turtles escape.
The regulations governing sea turtle
take prohibitions and exemptions
provide for the use of limited tow times
as an alternative to the use of TEDs for
vessels with certain specified
characteristics or under certain special
circumstances. The provisions of 50
CFR 223.206(d)(3)(ii) specify that the
NOAA Assistant Administrator for
Fisheries (AA) may authorize
compliance with tow time restrictions
as an alternative to the TED requirement
if the AA determines that the presence
of algae, seaweed, debris, or other
special environmental conditions in a
particular area makes trawling with
TED-equipped nets impracticable.
Namely, TEDs can become clogged with
debris, which can prevent target species
from passing into the codend of the net
and sea turtles from escaping through
the TED opening. The provisions of 50
CFR 223.206(d)(3)(i) specify the
maximum tow times that may be used
when tow time limits are authorized as
an alternative to the use of TEDs. Each
tow may be no more than 55 minutes
from April 1 through October 31 and no
more than 75 minutes from November 1
through March 31, as measured from the
time that the trawl doors enter the water
until they are removed from the water.
For a trawl that is not attached to a door,
the tow time begins at the time the
codend enters the water and ends at the
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]]>Agencies
[Federal Register Volume 86, Number 232 (Tuesday, December 7, 2021)]
[Rules and Regulations]
[Pages 69173-69178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26471]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2020-0385; FRL-8826-02-R5]
Air Plan Approval; Michigan; Sulfur Dioxide Clean Data
Determination for St. Clair
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is making a
determination that the St. Clair sulfur dioxide (SO2)
nonattainment area has attained the 2010 primary SO2
National Ambient Air Quality Standard (2010 SO2 NAAQS). This
determination suspends certain planning requirements and sanctions for
the nonattainment area for as long as the area continues to attain the
2010 SO2 NAAQS. EPA proposed this action on August 17, 2021,
and received four supportive comments and one set of adverse comments.
DATES: This final rule is effective on December 7, 2021.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2020-0385. All documents in the docket are listed on
the www.regulations.gov website. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
through www.regulations.gov or at the Environmental Protection Agency,
Region 5, Air and Radiation Division, 77 West Jackson Boulevard,
Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding Federal holidays and facility
closures due to COVID-19. We recommend that you telephone Mary
Portanova, Environmental Engineer, at (312) 353-5954 before visiting
the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Mary Portanova, Environmental
Engineer, Control Strategies Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353-5954, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever
[[Page 69174]]
``we,'' ``us,'' or ``our'' is used, we mean EPA.
I. Background Information
On August 17, 2021 (86 FR 45947), EPA proposed to determine that
the St. Clair SO2 nonattainment area (St. Clair area) has
attained the 2010 SO2 NAAQS. This determination, also known
as a Clean Data Determination (CDD), would suspend certain planning
requirements for the nonattainment area for as long as the area
continues to attain the 2010 SO2 NAAQS. EPA also proposed to
require the Michigan Department of Environment, Great Lakes, and Energy
(EGLE) to submit annual statements to address whether the St. Clair
area has continued to attain the 2010 SO2 NAAQS. A detailed
analysis of EPA's proposed decision was provided in the August 17,
2021, notice of proposed rulemaking (NPRM) and will not be restated
here. The public comment period for this NPRM ended on September 16,
2021. EPA received five comment submittals on the proposed action.
II. Response to Comments
EPA received two anonymous comments and two comments from citizens,
all in support of EPA's action. EPA acknowledges these supportive
comments. EPA also received a detailed comment document from the Sierra
Club (``the commenter''), which includes adverse comments on EPA's
proposed action. EPA is addressing these comments below. EPA notes that
the commenter frequently refers to information given in an EGLE
document which was not part of EGLE's July 24, 2020, CDD submittal. The
document is entitled ``Proposed Sulfur Dioxide One-Hour National
Ambient Air Quality Standard State Implementation Plan (SIP) for St.
Clair County Nonattainment Area,'' dated October 7, 2019. EPA will
refer to this document as the ``2019 draft.'' The commenter claimed
that this document was submitted to EPA in 2019 for approval and has
requested that if there is a final version of the document, that it be
added to the docket for this action, but in fact, neither the ``2019
draft'' nor any final version of the ``2019 draft'' document was
submitted to EPA as a SIP revision or as part of EGLE's CDD request.
EPA considers the ``2019 draft'' document and its contents to be a
draft State product which predated and has limited relevance to EGLE's
July 24, 2020, CDD request. EPA has no final version of the ``2019
draft'' to docket, but will retain the ``2019 draft'' in Docket ID No.
EPA-R05-OAR-2020-0385 as an exhibit attached to Sierra Club's comment.
Comment A: At several places in the Sierra Club comment document,
the commenter suggests that certain emission reductions which have been
discussed or imposed in the time since the St. Clair area was
designated nonattainment should be evaluated for adequacy to provide
for full attainment or imposed quickly under a State or Federal plan to
provide for healthy air. The commenter additionally requests that EGLE
should perform various new modeling analyses either before the CDD is
finalized, or during the time that the CDD is in place. These requested
analyses would be used to show whether further State regulations are
needed to bring healthy air into the St. Clair area. The commenter also
states that EPA should not allow delays in achieving healthy air in the
St. Clair area.
Response A: In its August 17, 2021, NPRM, EPA presented evidence
and proposed to find that the St. Clair area has attained the 1-hour
SO2 NAAQS as of 2017-2020. To the extent that the commenter
is asserting that additional measures must be adopted in order for the
area to attain the NAAQS, we do not agree. The CDD would cause no
delays, as the St. Clair area and surrounding communities have already
demonstrated air quality values that meet the health-based NAAQS.
Therefore, Clean Air Act (CAA) planning requirements for nonattainment
areas can be suspended under a CDD, and no further analyses or emission
reduction actions are required of EGLE at this time. As stated in the
proposal, EGLE will be required to provide demonstrations on an annual
basis that the area continues to attain the NAAQS, and if EPA
determines in the future that the area is no longer attaining the
NAAQS, the CDD would be rescinded.
Comment B: The commenter asserted that EGLE's request for a CDD
relied on the assumption that the St. Clair plant's expected closure
will allow the State to formally demonstrate attainment, despite the
emissions from the Belle River plant and a new gas power plant. The
commenter stated that this assumption has not been tested and should be
tested before moving ahead with the CDD. The commenter stated that
nothing in the CAA allows EPA to suspend immediate action in
anticipation of emission reductions accompanying a plant retirement
that is still more than a year away.
Response B: The plan to close the St. Clair plant in 2022 was not a
factor which EGLE or EPA relied upon to justify the determination of
attainment. EGLE's CDD request relied on actual emissions and
monitoring data, and a finding that the area is attaining the NAAQS
based on those emissions and monitoring data. In finalizing a CDD, EPA
is suspending the CAA obligation to submit attainment planning
requirements because the area is currently attaining the standard,
regardless of any anticipated future emission reductions, including the
planned plant retirement. EPA does not agree that additional modeling
analyses are required at this time for EPA to find that this area is
currently attaining and to finalize the CDD. Such analyses that the
commenter is requesting might instead be expected in a future
redesignation request or nonattainment SIP. It is worth noting that
although the St. Clair CDD is already fully supported by air quality
data, if a coal power plant were to permanently and enforceably close
in the St. Clair area, any actual SO2 emission decreases
that occur would only help the area stay in attainment under the CDD
and help provide a path forward to eventual redesignation of the area
to attainment.
Comment C: The commenter stated that EPA should ensure it is not
delaying action that may be needed to demonstrate that the area is
meeting the NAAQS based not only on actual emissions, which can
increase, but on allowable emissions. The commenter stated that EPA
should determine if further action will be needed following St. Clair's
retirement, and if so, EGLE should be developing additional measures
now, rather than waiting until a monitoring violation occurs and the
CDD must be rescinded. Waiting to restart the process of developing
needed measures until after rescission of the CDD would cause delays.
Response C: The St. Clair area is currently meeting the 2010
SO2 NAAQS and therefore, EPA may finalize this CDD.
Enforceable allowable emission limits would be expected in a subsequent
redesignation request. Again, however, EPA does not require additional
action from EGLE for the St. Clair area while the CDD is in place and
the area continues to attain the standards.
Comment D: The commenter stated that EPA's NPRM does not explicitly
address whether the DTE monitors meet the criteria in 40 CFR part 58,
appendices A, C, and E; whether EGLE submitted relevant information for
EPA to make this assessment, and whether relying on this data is
consistent with other treatment of third-party monitoring.
Response D: As stated in the NPRM, EPA reviewed monitoring data and
evidence that quality assurance activities had been performed. EPA
[[Page 69175]]
monitoring experts found that the third-party monitoring network and
the data quality at the St. Clair area monitors are consistent with EPA
requirements and are acceptable to rely upon to characterize air
quality in the St. Clair area. The NPRM inadvertently omitted specific
reference to a letter EGLE submitted to EPA on October 28, 2020, which
provides EGLE's confirmation that the two industrial SO2
monitoring sites operated by DTE meet the quality assurance and siting
requirements in 40 CFR part 58, appendix A and D, respectively. This
letter has been added to Docket ID No. EPA-R05-OAR-2020-0385.
Additionally, the SO2 monitoring methods used at these two
monitoring sites are reference or equivalent methods as defined in 40
CFR part 50.
Comment E: The commenter expressed concern that the two DTE
monitors could be missing maximum concentrations of the SO2
plume. The commenter cited diagrams from modeling results shown in the
``2019 draft.'' The commenter stated that diagrams in this document
appear to indicate an additional area of high modeled concentrations in
the St. Clair area which does not currently contain a monitor. The
commenter asked EPA to consider how to obtain monitoring results from
that third location.
Response E: As previously stated, EPA relied on the modeling
analysis in EGLE's July 24, 2020 CDD submittal, which used actual
facility SO2 emissions and an updated meteorological data
set from Pontiac, Michigan, 2017-2019. This meteorology was determined
to be more complete and more representative of the St. Clair area than
other available meteorological datasets which EGLE had considered or
used earlier in its other work for the St. Clair area. The CDD modeling
of 2017-2019 actual emissions which EGLE submitted indicated that the
highest modeled concentrations tended to occur most frequently near the
Remer monitor location. EPA's ``SO2 NAAQS Designations
Source-Oriented Monitoring Technical Assistance Document''
(SO2 Monitoring TAD) considers both high relative magnitude
of modeled results, and the frequency of a location experiencing
maximum values, in helping to choose appropriate monitoring sites. The
third location in the St. Clair area northwest of the plants, which the
commenter appears to refer to, does not appear as a location of higher
concentrations than the monitored locations in EGLE's CDD modeling
analysis. The CDD's modeled values in the northwest location are
similar to but lower than the CDD's modeled values in the area of
maximum concentration near the Remer monitor's location. EPA is
satisfied that the two DTE monitors provide a reasonable representation
of the maximum impacts from the two St. Clair sources and that the
imposition of a third monitor is not justified by current information.
Comment F: The commenter noted that the Belle River plant had a 7-
month outage in 2019 and stated that EPA does not address how this
outage affects its assessment that the 2017-2019 monitoring data
represents three full years, particularly in the warmer months, or
whether the outage skewed the results of the modeling so that it is not
representative of maximum SO2 emissions observed during
typical operations.
Response F: The Belle River plant did have outages at Unit 1 from
February 2019 to June 2019; from November 2019 to December 2019, and
from January 2020 to February 2020, which led to an overall emission
reduction of over 6,000 tons of SO2. These outages would not
affect most of the warmer months in the St. Clair area, so presumably
the ambient air concentrations measured at the DTE monitors during the
summer and early fall of 2019 would represent normal expected
conditions for that year.
The monitoring data used to support the CDD represents actual
ambient air quality during 2017-2019. Air quality monitoring data can
reflect fluctuations in source operating conditions, meteorology, and
other factors. The Belle River plant Unit 1 outage does not invalidate
the monitoring data. The use of three years of data to calculate a
monitor's design value also helps balance variations in emissions and
other factors. In addition, the CDD is supported by modeling of actual
current facility emissions (in this case, 2017-2019), in order to
demonstrate that the NAAQS are attained. The analysis is not intended
to evaluate only maximum typical emissions. EPA believes it is
appropriate to model the true actual emissions for the modeling period,
which encompassed the most recent three years of data available when
the CDD was requested.
Comment G: The commenter noted that EGLE had used a single
background value in its modeling for the initial nonattainment
designation recommendation for the St. Clair area, but later revised
the background concentration to a set of lower values for the ``2019
draft'' and another set of background values in the CDD submittal. The
commenter questioned EGLE's claim that approximately 90 hours of data
were considered in each season and asked that EPA explain the
appropriateness of the final background values EGLE used. The commenter
asked that EGLE's background spreadsheet be added to the CDD action's
docket record and inquired whether EPA limits the number of hours or
wind sectors that can be excluded from a background data set.
Response G: Dispersion modeling analysis can be an iterative
process, in which initial conservative input data is later evaluated to
better reflect actual ambient air conditions within the modeling
domain, or more accurate emissions and facility configuration data at
the modeled sources. Such adjustments can provide for more appropriate
and accurate results. In its initial nonattainment recommendation
analysis of the St. Clair area's 2012-2014 SO2 emissions
submitted on September 18, 2015, Michigan chose a conservative Tier I
background value. Based in part on the results of the modeling
analysis, the State recommended to EPA that the St. Clair area be
designated nonattainment. These modeling results were also used to help
suggest boundaries for the St. Clair nonattainment area. Having made
its nonattainment recommendation, Michigan did not decide to further
refine its 2015 modeling or the background value it used.
However, EPA concurs with EGLE that additional refinement of input
data such as background concentrations can be part of an acceptable
approach to support future planning, or to characterize an area's air
quality. The background analysis EGLE submitted with its July 24, 2020,
CDD submittal used monitored ambient air quality data from 2017-2019 at
the Port Huron monitor, selected by season and hour of day with wind
direction exclusions to avoid double-counting of the St. Clair plants'
impacts and to avoid overestimating SO2 impacts from
facilities closer to the background monitor which would not be expected
to actually impact the St. Clair area when winds came from their
locations. EPA accepted this approach, which is a commonly used method
of addressing background in SO2 modeling analyses, fully
supported by EPA's modeling guidance. The background values used in the
CDD submittal work come from a newer set of air quality data than the
background values in the ``2019 draft,'' which may help explain the
difference between the data sets cited by the commenter. The actual
number of acceptable background exclusions depends on the wind patterns
experienced at the Port Huron monitor, and is not specifically limited
by EPA guidance as long as the monitor meets
[[Page 69176]]
EPA's data completeness requirements, which Port Huron's monitor does.
EGLE may not have had 90 hours in every season due to exclusions, but
EPA finds that EGLE's background calculations are generally
conservative and acceptable in the modeled evaluation submitted with
EGLE's CDD request. EPA has added EGLE's background spreadsheet to
Docket ID No. EPA-R05-OAR-2020-0385.
Additionally, EPA calculated a much more conservative Tier I
background calculation which used the first high concentration to
determine one background value for each year 2017-2019. This resulted
in the values 7.5 parts per billion (ppb), 6.5 ppb, and 14.4 ppb for
2017, 2018, and 2019, respectively, for a three-year averaged
background value of 9.5 ppb. Adding this Tier 1 background value of 9.5
ppb to the CDD modeled design concentration of 64.4 ppb (which already
included the season by hour of day values, embedded in the final
modeled result) gives a total, very conservative design value of 73.9
ppb, which double counts background but is still below the NAAQS. EPA
does not intend to impose this Tier I background value upon EGLE's
submitted analysis, but only finds that EGLE's analysis would still
show attainment, even if the submitted background values were rejected.
Comment H: EGLE does not state what years the Port Huron data is
from on page 4 of its CDD submittal.
Response H: EGLE's table on page 4 of its CDD submittal indicates
that the Port Huron background data was from 2017-2019.
Comment I: The commenter noted that the NPRM appeared to reverse
the 2017-2019 monitor values which EPA cited as indicating that the
modeling and monitoring results matched well near the monitor
locations.
Response I: EPA acknowledges that there is an error in the
narrative on page 45949 of the NPRM. The values in Table 1 and the
comparison of modeled to monitored design values at each monitor are
correct as given in the NPRM. The correct wording on page 45949 of the
NPRM should be ``The model's predicted design value at the Mills
monitor location was 47.7 ppb, compared to the monitored design value
of 45 ppb, and the model's predicted design value at the Remer monitor
location was 52.7 ppb, compared to the monitored design value of 54
ppb.''
Comment J: The commenter stated that if EPA finds that the area is
not meeting the NAAQS after reviewing these comments, it should move
forward with a Federal Implementation Plan.
Response J: EPA believes that EGLE has adequately demonstrated that
the St. Clair area is currently meeting the 2010 SO2 NAAQS.
If it is necessary to rescind the CDD in future, EPA will follow the
requirements of the CAA.
Comment K: The commenter said that EPA should bolster its plan for
oversight of the area's continued compliance with the NAAQS with
requirements for data submittals on a more frequent basis than an
annual report, such as monthly or bimonthly. The commenter also
requested that EPA require the DTE monitors to run at least until the
area is redesignated, not just until the St. Clair plant closes.
Response K: Areas may verify continued attainment of the NAAQS
using air quality monitoring data, which is certified on an annual
basis. EPA's inclusion of a requirement that EGLE submit an annual
report demonstrating the area's continued attainment permits the State
to provide relevant information to support such a finding, including
monitoring data, emissions data, or other information. This approach is
reasonable given the combination of monitoring and modeling data
supporting this final CDD. Moreover, the annual basis for the required
demonstration mirrors the certification schedule for air quality
monitoring data. We therefore think it represents a reasonable interval
for EGLE's reporting requirement. The NPRM (page 45948) proposed to
require EGLE to submit an annual statement to EPA addressing whether
the St. Clair area is continuing to attain the 2010 SO2
NAAQS. This is a new requirement intended to bolster and formalize the
continuing verification of the area's air quality. EPA does not believe
that it is necessary to further modify its proposed schedule for more
frequent formal reports from EGLE. EGLE uploads new monitoring data to
EPA's Air Quality System (AQS) database frequently. Nothing in the CDD
precludes EGLE from routinely reviewing its available air quality
information on a short-term basis.
EPA will work with EGLE to ensure that the Mills and Remer monitors
continue to operate at least until a full redesignation of the St.
Clair area occurs.
After careful consideration of public comments, EPA is finalizing
the August 17, 2021, proposed finding that the St. Clair area is
attaining the 2010 SO2 NAAQS. EPA is therefore also
finalizing the CDD for the St. Clair nonattainment area.
III. Final Action
EPA is approving EGLE's request for a CDD for the St. Clair
nonattainment area in St. Clair County, Michigan. The nonattainment
area consists of a portion of southeastern St. Clair County, Michigan,
located northeast of Detroit. The nonattainment area shares a border
with Ontario, Canada along the St. Clair River. The area's complete
boundary description can be found at 40 CFR 81.323. EPA's final
determination suspends the requirements for EGLE to submit an
attainment demonstration and other associated nonattainment planning
requirements for the St. Clair nonattainment area so long as the St.
Clair area continues to attain the 2010 SO2 NAAQS.
Finalizing this action does not constitute a redesignation of the St.
Clair area to attainment of the 2010 SO2 NAAQS under section
107(d)(3) of the CAA. The St. Clair area will remain designated
nonattainment for the 2010 SO2 NAAQS until such time as EPA
determines that the area meets the CAA requirements for redesignation
to attainment and takes action to redesignate the area.
As noted in the proposal on this action, sanctions clocks were
started on October 21, 2019, for the State's failure to submit all
components of the SO2 part D nonattainment area SIP,
including the emissions inventory, attainment demonstration, reasonably
available control measures (RACM) including reasonably available
control technology (RACT), enforceable emission limitations and control
measures, reasonable further progress (RFP) plan, nonattainment new
source review (NNSR), and contingency measures.
With the approval of this CDD, only the emissions inventory and
NNSR--i.e., the non-planning requirements--need to be addressed. EPA
found EGLE's June 30, 2021, submittal of the St. Clair area's emissions
inventory and NNSR elements complete in a letter dated October 7, 2021.
On October 26, 2021, (86 FR 59073), EPA proposed to approve EGLE's June
30, 2021, submittal of the St. Clair area's emissions inventory and
NNSR elements. Therefore, a complete submittal has been made by the
State addressing the finding of failure to submit and, as a result,
both the NNSR 2:1 offset sanctions and highway funding sanctions that
were in place are now suspended as long as the area continues to
demonstrate it is attaining the NAAQS.
In accordance with 5 U.S.C. 553(d) of the Administrative Procedure
Act (APA), EPA finds there is good cause for
[[Page 69177]]
these actions to become effective immediately upon publication. The
immediate effective date for this action is authorized under both 5
U.S.C. 553(d)(1) and U.S.C. 553(d)(3).
Section 553(d)(1) of the APA provides that final rules shall not
become effective until 30 days after publication in the Federal
Register ``except . . . a substantive rule which grants or recognizes
an exemption or relieves a restriction.'' The purpose of this provision
is to ``give affected parties a reasonable time to adjust their
behavior before the final rule takes effect.'' Omnipoint Corp. v. Fed.
Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United
States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting
legislative history). However, when the agency grants or recognizes an
exemption or relieves a restriction, affected parties do not need a
reasonable time to adjust because the effect is not adverse. EPA has
determined that this rule relieves a restriction because it relieves
the State of planning requirements. This action has no effect on the
sources in the nonattainment area, as the area will continue to be
nonattainment and therefore continue to be subject to NNSR permitting
requirements.
Section 553(d)(3) of the APA provides that final rules shall not
become effective until 30 days after publication in the Federal
Register ``except . . . as otherwise provided by the agency for good
cause.'' The purpose of this provision is to ``give affected parties a
reasonable time to adjust their behavior before the final rule takes
effect.'' Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630
(D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099,
1104 (8th Cir. 1977) (quoting legislative history). Thus, in
determining whether good cause exists to waive the 30-day delay, an
agency should ``balance the necessity for immediate implementation
against principles of fundamental fairness which require that all
affected persons be afforded a reasonable amount of time to prepare for
the effective date of its ruling.'' Gavrilovic, 551 F.2d at 1105. EPA
has determined that there is good cause for making this final rule
effective immediately because this rule does not create any new
regulatory requirements such that affected parties would need time to
prepare before the rule takes effect. For these reasons, EPA finds good
cause under both 5 U.S.C. 553(d)(1) and U.S.C. 553(d)(3) for this
action to become effective on the date of publication of this action.
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 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).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 7, 2022. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action 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, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: December 1, 2021.
Debra Shore,
Regional Administrator, Region 5.
For the reasons stated in the preamble, EPA amends 40 CFR part 52
as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. In Sec. 52.1170, the table in paragraph (e) is amended by adding an
entry for ``2010 Sulfur Dioxide Clean Data Determination'' immediately
after the entry for ``List of permit applications; list of consent
order public notices; notice, opportunity for public comment
[[Page 69178]]
and public hearing required for certain permit actions'' to read as
follows:
Sec. 52.1170 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Applicable
Name of nonregulatory SIP geographic or State EPA Approval date Comments
provision nonattainment area submittal date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
2010 Sulfur Dioxide Clean Data St. Clair area.... 7/24/2020 12/7/2021, [INSERT EPA's final
Determination. FEDERAL REGISTER determination suspends
CITATION]. the requirements for
EGLE to submit an
attainment
demonstration and
other associated
nonattainment planning
requirements for the
St. Clair
nonattainment area
requirements for the
nonattainment area for
as long as the area
continues to attain
the 2010 SO2 NAAQS.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2021-26471 Filed 12-6-21; 8:45 am]
BILLING CODE 6560-50-P
