Finding of Failure To Attain and Reclassification of the Detroit Area as Moderate for the 2015 Ozone National Ambient Air Quality Standards, 6633-6636 [2023-01936]
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Federal Register / Vol. 88, No. 21 / Wednesday, February 1, 2023 / Rules and Regulations
• 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).
This action is subject to the
Congressional Review Act, and EPA will
submit a rule report to each House of
the Congress and to the Comptroller
General of the United States. 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 April 3, 2023. Filing a petition
for reconsideration by the Administrator
of this final rule does not affect the
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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,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements.
Dated: January 26, 2023.
Debra Shore,
Regional Administrator, Region 5.
BILLING CODE 6560–50–P
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
[EPA–HQ–OAR–2021–0742; FRL–10611–01–
R5]
1. The authority citation for part 52
continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.2570 is amended by
adding paragraph (c)(146) to read as
follows:
■
Identification of plan.
*
*
*
*
(c) * * *
(146) On April 8, 2022, the Wisconsin
Department of Natural Resources
(WDNR) submitted a State
Implementation Plan (SIP) revision
request. WDNR updated chapters NR
404 and 484 of Wisconsin’s ambient air
quality rule to include the 2015 primary
and secondary NAAQS for ozone and its
incorporation by reference rule to add
EPA-promulgated monitoring
requirements related to the NAAQS.
WDNR also revised sections of chapters
NR 407 (Operation permits), 408
(Construction permits for direct major
sources in nonattainment areas) and 428
(Control of Nitrogen Compounds) to
ensure implementation of the ozone
NAAQS in a manner consistent with
Federal regulations.
(i) Incorporation by reference. The
following sections of the Wisconsin
Administrative Code are incorporated
by reference:
(A) NR 404 Ambient Air Quality
Standards. NR 404.04(5)(d) and Note, as
published in the Wisconsin Register,
February 2022 No. 794, effective March
1, 2022.
(B) NR 407 Operation permits. NR
407.02(4)(c)1. and Note, as published in
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 81
■
*
the Wisconsin Register, February 2022
No. 794, effective March 1, 2022.
(C) NR 408 Construction permits for
direct major sources in nonattainment
areas. NR 408.02(24)(c) and Note and
(32)(a)6., as published in the Wisconsin
Register, February 2022 No. 794,
effective March 1, 2022.
(D) NR 428 Control of Nitrogen
Compounds. NR 428.20, NR 428.21(3)
and NR 428.255, as published in the
Wisconsin Register, February 2022 No.
794, effective March 1, 2022.
(E) NR 484 Incorporation by reference.
NR 484.04 Table 2(7s), as published in
the Wisconsin Register, February 2022
No. 794, effective March 1, 2022.
(ii) [Reserved]
[FR Doc. 2023–01990 Filed 1–31–23; 8:45 am]
For the reasons stated in the
preamble, 40 CFR part 52 is amended as
follows:
§ 52.2570
6633
Finding of Failure To Attain and
Reclassification of the Detroit Area as
Moderate for the 2015 Ozone National
Ambient Air Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is determining that the
Detroit area failed to attain the 2015
ozone National Ambient Air Quality
Standards (NAAQS) by the applicable
attainment date. The effect of failing to
attain by the applicable attainment date
is that the Detroit area will be
reclassified by operation of law to
‘‘Moderate’’ nonattainment for the 2015
ozone NAAQS on March 1, 2023, the
effective date of this final rule.
Accordingly, the Michigan Department
of Environment, Great Lakes, and
Energy (EGLE) must submit State
Implementation Plan (SIP) revisions and
implement controls to satisfy the
statutory and regulatory requirements
for Moderate areas for the 2015 ozone
NAAQS according to the deadlines
established in this final rule.
DATES: This final rule is effective on
March 1, 2023.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2021–0742. 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
SUMMARY:
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(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 Eric
Svingen, Environmental Engineer, at
(312) 353–4489 before visiting the
Region 5 office.
FOR FURTHER INFORMATION CONTACT: Eric
Svingen, Environmental Engineer,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353–4489,
svingen.eric@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
lotter on DSK11XQN23PROD with RULES1
I. Background Information
Clean Air Act (CAA) section 181(b)(2)
requires EPA to determine, based on the
design value of an ozone nonattainment
area as of the area’s attainment deadline,
whether the area has attained the ozone
standard by that date.1 On August 3,
2018, EPA designated the Detroit area,
consisting of Livingston, Macomb,
Monroe, Oakland, St. Clair, Washtenaw,
and Wayne Counties, as a Marginal
nonattainment area for the 2015 ozone
NAAQS (83 FR 25776). On April 13,
2022, EPA proposed to determine that
the Detroit area failed to attain the 2015
ozone NAAQS by August 3, 2021, the
applicable attainment date for Marginal
areas, and did not qualify for a 1-year
attainment date extension (87 FR
21842). The proposed determination
was based upon complete, qualityassured and certified ozone air quality
monitoring data that showed that the
design value for the area exceeded 0.070
parts per million (ppm) for the 2018–
2020 period. EPA proposed that the
1 An area’s design value for the 2105 ozone
NAAQS is the highest three-year average of the
annual fourth-highest daily maximum eight-hour
average concentrations of all monitors in the area.
To determine whether an area has attained the
ozone NAAQS prior to the attainment date, EPA
considers the monitor-specific ozone design values
in the area for the most recent three years with
complete, quality-assured monitored data prior to
the attainment deadline.
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Detroit area would be reclassified as a
Moderate nonattainment area by
operation of law on the effective date of
a final action finding that the area failed
to attain the 2015 ozone NAAQS by the
applicable attainment date for Marginal
areas. Once reclassified as Moderate, the
Detroit area would be required to attain
the 2015 ozone NAAQS ‘‘as
expeditiously as practicable’’ but no
later than 6 years after the initial
designation as nonattainment, which in
this case would be no later than August
3, 2024.
In the April 13, 2022, proposal, EPA
solicited comment on adjusting the due
dates, in accordance with CAA section
182(i), for submission and
implementation deadlines for all SIP
requirements that apply to Moderate
areas. On October 7, 2022, EPA finalized
its proposed action for 22 Marginal
areas that failed to attain by the
applicable attainment date (87 FR
60897). In the October 7, 2022,
rulemaking, EPA provided a response to
comments relevant to all areas subject to
reclassification.
II. Moderate Area SIP Due Dates
Once a nonattainment area is
reclassified as Moderate, the responsible
state agency must subsequently submit
a SIP revision that satisfies the air
quality planning requirements for a
Moderate area under CAA section
182(b). SIP requirements that apply to
Moderate areas are cumulative of CAA
requirements for the Marginal
classification and include additional
Moderate area requirements as
interpreted and described in the final
SIP Requirements Rule for the 2015
ozone NAAQS (see CAA sections
172(c)(1) and 182(a) and (b), and 40 CFR
51.1300 through 51.1319). These
requirements include reasonably
available control measures and
reasonably available control technology
(RACM/RACT) and vehicle inspection
and maintenance (I/M).
EPA’s April 13, 2022, proposed rule
discusses EPA’s basis for establishing
deadlines for Moderate area SIP
revisions and implementation of RACM/
RACT and Basic I/M programs (87 FR
21842, 21852). With respect to SIP
requirements for Moderate areas, we
proposed that for any of the Moderate
area controls to influence attainment by
the Moderate area attainment date, they
would need to be implemented by the
beginning of the 2023 ozone season at
the latest. With respect to
implementation deadlines for RACM/
RACT, we proposed that the modeling
and attainment demonstration
requirements for 2015 ozone NAAQS
nonattainment areas classified Moderate
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or higher require that a state must
provide for implementation of all
control measures needed for attainment
no later than the beginning of the
attainment year ozone season,
notwithstanding any alternative
deadline established per 40 CFR
51.1312.2 For reclassified areas, EPA’s
implementing regulations for the 2015
ozone NAAQS require that the state
shall provide for implementation of
RACT as expeditiously as practicable,
but no later than the start of the
attainment year ozone season associated
with the area’s new attainment
deadline, or January 1 of the third year
after the associated SIP submission
deadline, whichever is earlier, or the
deadline established by the
Administrator in the final action issuing
the area reclassification.3 With respect
to I/M, EPA proposed to allow areas
newly required to implement Basic I/M
up to 4 years after the effective date of
designation and classification to fully
implement the I/M program for states
that do not intend to rely upon emission
reductions from their Basic I/M program
in attainment or reasonable further
progress (RFP) SIPs.
EPA also discussed CAA section
182(i), under which the Administrator
may adjust applicable deadlines for
reclassified areas ‘‘to the extent such
adjustment is necessary or appropriate
to assure consistency among the
required submissions.’’ In the April 13,
2022, rulemaking, which proposed
reclassification for Detroit as well as 23
other areas, EPA noted that the ozone
season begins in either January or March
for the various areas.4 To avoid
inconsistencies between areas with
various ozone season start dates, EPA
proposed under CAA section 182(i) to
set a deadline of January 1, 2023, for
Moderate area SIP revisions and
implementation of RACM/RACT for all
areas.
To avoid the impractical outcome
whereby EPA might finalize a January 1,
2023, due date that has already passed
for the Detroit area, and because March
is the start of the ozone season in
Michigan, EPA is instead finalizing
March 1, 2023, as the due date for SIP
revisions addressing Moderate
requirements for the Detroit area.
RACM/RACT for the area must be
implemented as expeditiously as
practicable, but no later than the same
date.
2 See
40 CFR 51.1308(d).
40 CFR 51.1312(a)(3)(ii).
4 The ozone season is defined by state in 40 CFR
part 58, appendix D. The ozone season for Michigan
is March-October. See 80 FR 65292, 65466–67
(October 26, 2015).
3 See
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Regarding the requirement for a Basic
I/M program, EPA is finalizing an
implementation deadline of no later
than 4 years after the effective date of
reclassification should EGLE not intend
to rely upon emission reductions from
their Basic I/M program in attainment or
reasonable further progress (RFP) SIPs.
If an area attains the 2015 ozone
NAAQS, the relevant state may request
redesignation to attainment, provided
the state can demonstrate that the
criteria under CAA section 107(d)(3)(E)
are met.5 On March 14, 2022, EPA
proposed to approve a January 3, 2022,
request from EGLE to redesignate the
Detroit area to attainment based on
2019–2021 monitoring data showing
attainment of the 2015 ozone NAAQS
(87 FR 14210). The comment period on
EPA’s proposed action closed on April
13, 2022, and EPA is currently
reviewing all public comments to
further assess whether Michigan
adequately addressed all requirements
applicable to redesignation that applied
to Detroit on the date of EGLE’s
submittal.
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III. What action is EPA Taking?
EPA is finalizing its proposed
determination that the Detroit area
failed to attain the 2015 ozone NAAQS
by the applicable attainment date of
August 3, 2021. Therefore, upon the
effective date of this final action, the
Detroit area will be reclassified by
operation of law as Moderate for the
2015 ozone NAAQS. Once reclassified
as Moderate, the Detroit area will be
required to attain the standard ‘‘as
expeditiously as practicable’’ but no
later than 6 years after the initial
designation as nonattainment, which in
this case would be no later than August
3, 2024. Pursuant to CAA section 182(i),
EPA is requiring Michigan to submit SIP
revisions to address Moderate area
requirements by the beginning of the
ozone season, or March 1, 2023.
IV. Good Cause Exemption Under the
Administrative Procedure Act (APA)
EPA finds there is good cause for this
action to become effective less than 30
days after publication. The March 1,
2023, effective date is authorized under
5 U.S.C. 553(d)(3) of the APA, which
allows an effective date less than 30
days after publication as provided by
the agency for good cause found and
published with the rule. EPA believes
that there is ‘‘good cause’’ to make this
rule effective less than 30 days after
publication in the Federal Register to
5 More information about redesignation is
available at https://www.epa.gov/ground-levelozone-pollution/redesignation-and-clean-datapolicy-cdp.
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avoid any additional delay in
development and implementation of the
SIP requirements under 182(b), given
the closeness to the beginning of the
2023 ozone season and the proximity of
EPA’s final action to the submission and
implementation deadlines described in
this rule. The agency believes that
establishing an effective date of this
action simultaneous with due dates
resulting from this action will reconcile
the competing statutory interests by
minimizing a potentially impractical
outcome in which the area might
otherwise be subject to Moderate
nonattainment area statutory and
regulatory due dates that would already
have passed prior to the normal 30 days
post-publication effective date. Further,
although this action will become
effective less than 30 days after
publication, a state need not wait until
EPA’s finding of failure to attain and
reclassification is made effective before
beginning to develop an attainment plan
for a higher classification of an air
quality standard.
V. Statutory and Executive Order
Reviews.
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is exempt from review by
the Office of Management and Budget
(OMB) because it responds to the CAA
requirement to determine whether areas
designated nonattainment for an ozone
NAAQS attained the standard by the
applicable attainment date, and to take
certain steps for areas that failed to
attain.
B. Paperwork Reduction Act (PRA)
This rule does not impose any new
information collection burden under the
PRA not already approved by the Office
of Management and Budget. This action
does not contain any information
collection activities and serves only to
make final: (1) determinations that the
Detroit Marginal nonattainment area
failed to attain the 2015 ozone standards
by the August 3, 2021, attainment date
where such areas will be reclassified as
Moderate nonattainment for the 2015
ozone standards by operation of law
upon the effective date of the final
reclassification action; and (2) adjust
any applicable implementation
deadlines.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the RFA. This action will not
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6635
impose any requirements on small
entities. The determination of failure to
attain the 2015 ozone standards (and
resulting reclassifications), do not in
and of themselves create any new
requirements beyond what is mandated
by the CAA. This final action would
require the State to adopt and submit
SIP revisions to satisfy CAA
requirements and would not itself
directly regulate any small entities.
D. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandate as described in
UMRA, 2 U.S.C. 1531–1538 and does
not significantly or uniquely affect small
governments. The action imposes no
enforceable duty on any state, local, or
tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the National
Government and the states, or on the
distribution of power and
responsibilities among the various
levels of government. The division of
responsibility between the Federal
Government and the states for purposes
of implementing the NAAQS is
established under the CAA.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175. This action does not apply
on any Indian reservation land, any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction, or non-reservation areas of
Indian country. Thus, Executive Order
13175 does not apply to this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
EPA interprets Executive Order 13045
as applying to those regulatory actions
that concern environmental health or
safety risks that EPA has reason to
believe may disproportionately affect
children, per the definition of ‘‘covered
regulatory action’’ in section 2–202 of
the Executive Order. This action is not
subject to Executive Order 13045
because it does not establish an
environmental standard intended to
mitigate health or safety risks.
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H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211 because it is not a
significant regulatory action under
Executive Order 12866.
is no information in the record
indicating that this action would be
inconsistent with the stated goals of
Executive Order 12898 of achieving
environmental justice for people of
color, low-income populations, and
indigenous peoples.
I. National Technology Transfer and
Advancement Act (NTTAA)
This rulemaking does not involve
technical standards.
K. Congressional Review Act
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 establishes
Federal executive policy on
environmental justice. Its main
provision directs Federal agencies, to
the greatest extent practicable and
permitted by law, to make
environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States. There
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 81
Environmental protection, Air
pollution control, National parks,
Wilderness areas.
This action is subject to the
Congressional Review Act, and EPA will
submit a rule report to each House of
the Congress and to the Comptroller
General of the United States. This action
is not a ‘‘major rule’’ as defined by 5
U.S.C. 804(2).
L. Judicial Review
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 April 3, 2023. 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
Dated: January 25, 2023.
Debra Shore,
Regional Administrator, Region 5.
For the reasons stated in the
preamble, 40 CFR part 81 is amended as
follows:
PART 81—DESIGNATION OF AREAS
FOR AIR QUALITY PLANNING
PURPOSES
1. The authority citation for part 81
continues to read as follows:
■
Authority: 42 U.S.C. 7401, et seq.
2. Section 81.323 is amended in the
table for ‘‘Michigan—2015 8-Hour
Ozone NAAQS [Primary and
Secondary]’’ by revising the entry for
‘‘Detroit, MI’’ to read as follows:
■
§ 81.323
*
Michigan.
*
*
*
*
MICHIGAN-2015 8-HOUR OZONE NAAQS
[Primary and secondary]
Designation
Classification
Designated area 1
*
*
*
Detroit, MI: ...................................................................................
Livingston County ........................................................................
Macomb County ..........................................................................
Monroe County ............................................................................
Oakland County ...........................................................................
St. Clair County ...........................................................................
Washtenaw County .....................................................................
Wayne County .............................................................................
*
*
Date 2
Type
Date 2
*
.............................
*
Nonattainment ....
*
March 1, 2023 ....
*
*
*
*
Type
*
Moderate.
*
1 Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the boundaries of any area of Indian
country in this table, including any area of Indian country located in the larger designation area. The inclusion of any Indian country in the designation area is not a determination that the state has regulatory authority under the Clean Air Act for such Indian country.
2 This date is August 3, 2018, unless otherwise noted.
[FR Doc. 2023–01936 Filed 1–31–23; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
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[EPA–HQ–OPP–2021–0449; FRL–10566–01–
OCSPP]
Fluopyram; Pesticide Tolerances
Environmental Protection
Agency (EPA).
AGENCY:
ACTION:
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This regulation revises the
tolerance for residues of fluopyram in or
on coffee, green bean and establishes
tolerances for residues of fluopyram in
or on multiple commodities which are
identified and discussed later in this
document. The Interregional Project
Number 4 (IR–4) requested these
tolerances under the Federal Food,
Drug, and Cosmetic Act (FFDCA).
SUMMARY:
This regulation is effective on
February 1, 2023. Objections and
requests for hearings must be received
DATES:
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]]>Agencies
[Federal Register Volume 88, Number 21 (Wednesday, February 1, 2023)]
[Rules and Regulations]
[Pages 6633-6636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01936]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[EPA-HQ-OAR-2021-0742; FRL-10611-01-R5]
Finding of Failure To Attain and Reclassification of the Detroit
Area as Moderate for the 2015 Ozone National Ambient Air Quality
Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is determining that
the Detroit area failed to attain the 2015 ozone National Ambient Air
Quality Standards (NAAQS) by the applicable attainment date. The effect
of failing to attain by the applicable attainment date is that the
Detroit area will be reclassified by operation of law to ``Moderate''
nonattainment for the 2015 ozone NAAQS on March 1, 2023, the effective
date of this final rule. Accordingly, the Michigan Department of
Environment, Great Lakes, and Energy (EGLE) must submit State
Implementation Plan (SIP) revisions and implement controls to satisfy
the statutory and regulatory requirements for Moderate areas for the
2015 ozone NAAQS according to the deadlines established in this final
rule.
DATES: This final rule is effective on March 1, 2023.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2021-0742. 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
[[Page 6634]]
(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 Eric Svingen,
Environmental Engineer, at (312) 353-4489 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT: Eric Svingen, Environmental Engineer,
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 353-4489,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
I. Background Information
Clean Air Act (CAA) section 181(b)(2) requires EPA to determine,
based on the design value of an ozone nonattainment area as of the
area's attainment deadline, whether the area has attained the ozone
standard by that date.\1\ On August 3, 2018, EPA designated the Detroit
area, consisting of Livingston, Macomb, Monroe, Oakland, St. Clair,
Washtenaw, and Wayne Counties, as a Marginal nonattainment area for the
2015 ozone NAAQS (83 FR 25776). On April 13, 2022, EPA proposed to
determine that the Detroit area failed to attain the 2015 ozone NAAQS
by August 3, 2021, the applicable attainment date for Marginal areas,
and did not qualify for a 1-year attainment date extension (87 FR
21842). The proposed determination was based upon complete, quality-
assured and certified ozone air quality monitoring data that showed
that the design value for the area exceeded 0.070 parts per million
(ppm) for the 2018-2020 period. EPA proposed that the Detroit area
would be reclassified as a Moderate nonattainment area by operation of
law on the effective date of a final action finding that the area
failed to attain the 2015 ozone NAAQS by the applicable attainment date
for Marginal areas. Once reclassified as Moderate, the Detroit area
would be required to attain the 2015 ozone NAAQS ``as expeditiously as
practicable'' but no later than 6 years after the initial designation
as nonattainment, which in this case would be no later than August 3,
2024.
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\1\ An area's design value for the 2105 ozone NAAQS is the
highest three-year average of the annual fourth-highest daily
maximum eight-hour average concentrations of all monitors in the
area. To determine whether an area has attained the ozone NAAQS
prior to the attainment date, EPA considers the monitor-specific
ozone design values in the area for the most recent three years with
complete, quality-assured monitored data prior to the attainment
deadline.
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In the April 13, 2022, proposal, EPA solicited comment on adjusting
the due dates, in accordance with CAA section 182(i), for submission
and implementation deadlines for all SIP requirements that apply to
Moderate areas. On October 7, 2022, EPA finalized its proposed action
for 22 Marginal areas that failed to attain by the applicable
attainment date (87 FR 60897). In the October 7, 2022, rulemaking, EPA
provided a response to comments relevant to all areas subject to
reclassification.
II. Moderate Area SIP Due Dates
Once a nonattainment area is reclassified as Moderate, the
responsible state agency must subsequently submit a SIP revision that
satisfies the air quality planning requirements for a Moderate area
under CAA section 182(b). SIP requirements that apply to Moderate areas
are cumulative of CAA requirements for the Marginal classification and
include additional Moderate area requirements as interpreted and
described in the final SIP Requirements Rule for the 2015 ozone NAAQS
(see CAA sections 172(c)(1) and 182(a) and (b), and 40 CFR 51.1300
through 51.1319). These requirements include reasonably available
control measures and reasonably available control technology (RACM/
RACT) and vehicle inspection and maintenance (I/M).
EPA's April 13, 2022, proposed rule discusses EPA's basis for
establishing deadlines for Moderate area SIP revisions and
implementation of RACM/RACT and Basic I/M programs (87 FR 21842,
21852). With respect to SIP requirements for Moderate areas, we
proposed that for any of the Moderate area controls to influence
attainment by the Moderate area attainment date, they would need to be
implemented by the beginning of the 2023 ozone season at the latest.
With respect to implementation deadlines for RACM/RACT, we proposed
that the modeling and attainment demonstration requirements for 2015
ozone NAAQS nonattainment areas classified Moderate or higher require
that a state must provide for implementation of all control measures
needed for attainment no later than the beginning of the attainment
year ozone season, notwithstanding any alternative deadline established
per 40 CFR 51.1312.\2\ For reclassified areas, EPA's implementing
regulations for the 2015 ozone NAAQS require that the state shall
provide for implementation of RACT as expeditiously as practicable, but
no later than the start of the attainment year ozone season associated
with the area's new attainment deadline, or January 1 of the third year
after the associated SIP submission deadline, whichever is earlier, or
the deadline established by the Administrator in the final action
issuing the area reclassification.\3\ With respect to I/M, EPA proposed
to allow areas newly required to implement Basic I/M up to 4 years
after the effective date of designation and classification to fully
implement the I/M program for states that do not intend to rely upon
emission reductions from their Basic I/M program in attainment or
reasonable further progress (RFP) SIPs.
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\2\ See 40 CFR 51.1308(d).
\3\ See 40 CFR 51.1312(a)(3)(ii).
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EPA also discussed CAA section 182(i), under which the
Administrator may adjust applicable deadlines for reclassified areas
``to the extent such adjustment is necessary or appropriate to assure
consistency among the required submissions.'' In the April 13, 2022,
rulemaking, which proposed reclassification for Detroit as well as 23
other areas, EPA noted that the ozone season begins in either January
or March for the various areas.\4\ To avoid inconsistencies between
areas with various ozone season start dates, EPA proposed under CAA
section 182(i) to set a deadline of January 1, 2023, for Moderate area
SIP revisions and implementation of RACM/RACT for all areas.
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\4\ The ozone season is defined by state in 40 CFR part 58,
appendix D. The ozone season for Michigan is March-October. See 80
FR 65292, 65466-67 (October 26, 2015).
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To avoid the impractical outcome whereby EPA might finalize a
January 1, 2023, due date that has already passed for the Detroit area,
and because March is the start of the ozone season in Michigan, EPA is
instead finalizing March 1, 2023, as the due date for SIP revisions
addressing Moderate requirements for the Detroit area. RACM/RACT for
the area must be implemented as expeditiously as practicable, but no
later than the same date.
[[Page 6635]]
Regarding the requirement for a Basic I/M program, EPA is
finalizing an implementation deadline of no later than 4 years after
the effective date of reclassification should EGLE not intend to rely
upon emission reductions from their Basic I/M program in attainment or
reasonable further progress (RFP) SIPs.
If an area attains the 2015 ozone NAAQS, the relevant state may
request redesignation to attainment, provided the state can demonstrate
that the criteria under CAA section 107(d)(3)(E) are met.\5\ On March
14, 2022, EPA proposed to approve a January 3, 2022, request from EGLE
to redesignate the Detroit area to attainment based on 2019-2021
monitoring data showing attainment of the 2015 ozone NAAQS (87 FR
14210). The comment period on EPA's proposed action closed on April 13,
2022, and EPA is currently reviewing all public comments to further
assess whether Michigan adequately addressed all requirements
applicable to redesignation that applied to Detroit on the date of
EGLE's submittal.
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\5\ More information about redesignation is available at https://www.epa.gov/ground-level-ozone-pollution/redesignation-and-clean-data-policy-cdp.
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III. What action is EPA Taking?
EPA is finalizing its proposed determination that the Detroit area
failed to attain the 2015 ozone NAAQS by the applicable attainment date
of August 3, 2021. Therefore, upon the effective date of this final
action, the Detroit area will be reclassified by operation of law as
Moderate for the 2015 ozone NAAQS. Once reclassified as Moderate, the
Detroit area will be required to attain the standard ``as expeditiously
as practicable'' but no later than 6 years after the initial
designation as nonattainment, which in this case would be no later than
August 3, 2024. Pursuant to CAA section 182(i), EPA is requiring
Michigan to submit SIP revisions to address Moderate area requirements
by the beginning of the ozone season, or March 1, 2023.
IV. Good Cause Exemption Under the Administrative Procedure Act (APA)
EPA finds there is good cause for this action to become effective
less than 30 days after publication. The March 1, 2023, effective date
is authorized under 5 U.S.C. 553(d)(3) of the APA, which allows an
effective date less than 30 days after publication as provided by the
agency for good cause found and published with the rule. EPA believes
that there is ``good cause'' to make this rule effective less than 30
days after publication in the Federal Register to avoid any additional
delay in development and implementation of the SIP requirements under
182(b), given the closeness to the beginning of the 2023 ozone season
and the proximity of EPA's final action to the submission and
implementation deadlines described in this rule. The agency believes
that establishing an effective date of this action simultaneous with
due dates resulting from this action will reconcile the competing
statutory interests by minimizing a potentially impractical outcome in
which the area might otherwise be subject to Moderate nonattainment
area statutory and regulatory due dates that would already have passed
prior to the normal 30 days post-publication effective date. Further,
although this action will become effective less than 30 days after
publication, a state need not wait until EPA's finding of failure to
attain and reclassification is made effective before beginning to
develop an attainment plan for a higher classification of an air
quality standard.
V. Statutory and Executive Order Reviews.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is exempt from review by the Office of Management and
Budget (OMB) because it responds to the CAA requirement to determine
whether areas designated nonattainment for an ozone NAAQS attained the
standard by the applicable attainment date, and to take certain steps
for areas that failed to attain.
B. Paperwork Reduction Act (PRA)
This rule does not impose any new information collection burden
under the PRA not already approved by the Office of Management and
Budget. This action does not contain any information collection
activities and serves only to make final: (1) determinations that the
Detroit Marginal nonattainment area failed to attain the 2015 ozone
standards by the August 3, 2021, attainment date where such areas will
be reclassified as Moderate nonattainment for the 2015 ozone standards
by operation of law upon the effective date of the final
reclassification action; and (2) adjust any applicable implementation
deadlines.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. The
determination of failure to attain the 2015 ozone standards (and
resulting reclassifications), do not in and of themselves create any
new requirements beyond what is mandated by the CAA. This final action
would require the State to adopt and submit SIP revisions to satisfy
CAA requirements and would not itself directly regulate any small
entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local, or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the National Government and the states, or on the distribution of power
and responsibilities among the various levels of government. The
division of responsibility between the Federal Government and the
states for purposes of implementing the NAAQS is established under the
CAA.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This action does not apply on any Indian
reservation land, any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction, or non-reservation areas of
Indian country. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 as applying to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.
[[Page 6636]]
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 establishes Federal executive policy on
environmental justice. Its main provision directs Federal agencies, to
the greatest extent practicable and permitted by law, to make
environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States. There is no information in the record indicating that
this action would be inconsistent with the stated goals of Executive
Order 12898 of achieving environmental justice for people of color,
low-income populations, and indigenous peoples.
K. Congressional Review Act
This action is subject to the Congressional Review Act, and EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
L. Judicial Review
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 April 3, 2023. 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 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: January 25, 2023.
Debra Shore,
Regional Administrator, Region 5.
For the reasons stated in the preamble, 40 CFR part 81 is amended
as follows:
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
0
2. Section 81.323 is amended in the table for ``Michigan--2015 8-Hour
Ozone NAAQS [Primary and Secondary]'' by revising the entry for
``Detroit, MI'' to read as follows:
Sec. 81.323 Michigan.
* * * * *
Michigan-2015 8-Hour Ozone NAAQS
[Primary and secondary]
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Designation Classification
Designated area \1\ --------------------------------------------------------------------------------------------------------------------
Date \2\ Type Date \2\ Type
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* * * * * * *
Detroit, MI:....................... ............................ Nonattainment.............. March 1, 2023.............. Moderate.
Livingston County..................
Macomb County......................
Monroe County......................
Oakland County.....................
St. Clair County...................
Washtenaw County...................
Wayne County.......................
* * * * * * *
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\1\ Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the boundaries of any area of Indian country
in this table, including any area of Indian country located in the larger designation area. The inclusion of any Indian country in the designation
area is not a determination that the state has regulatory authority under the Clean Air Act for such Indian country.
\2\ This date is August 3, 2018, unless otherwise noted.
[FR Doc. 2023-01936 Filed 1-31-23; 8:45 am]
BILLING CODE 6560-50-P
