Air Plan Approval; Michigan; Interim Final Determination To Stay and Defer Sanctions in the Detroit Sulfur Dioxide Nonattainment Area, 17376-17379 [2023-05820]

Download as PDF 17376 Federal Register / Vol. 88, No. 56 / Thursday, March 23, 2023 / Rules and Regulations 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). B. Submission to Congress and the Comptroller General 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 C. Petitions for 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 May 22, 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, approving VADEQ’s second maintenance plan for the RichmondPetersburg Area for the 1997 ozone NAAQS, 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, Reporting and Name of non-regulatory SIP revision Applicable geographic area * * Second Maintenance Plan for the Richmond-Petersburg 1997 8-Hour Ozone Nonattainment Area. * Richmond-Petersburg Area. * * * * * [FR Doc. 2023–05463 Filed 3–22–23; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R05–OAR–2022–0976; FRL–10788– 03–R5] Air Plan Approval; Michigan; Interim Final Determination To Stay and Defer Sanctions in the Detroit Sulfur Dioxide Nonattainment Area ddrumheller on DSK120RN23PROD with RULES1 is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). Environmental Protection Agency (EPA). ACTION: Interim final rule. AGENCY: In the Proposed Rules section of this Federal Register, EPA is proposing conditional approval of Michigan’s State Implementation Plan SUMMARY: VerDate Sep<11>2014 16:18 Mar 22, 2023 Jkt 259001 State submittal date * 09/21/21 Frm 00012 Fmt 4700 Sfmt 4700 Adam Ortiz, Regional Administrator, Region III. For the reasons stated in the preamble, the 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. Subpart VV—Virginia 2. In § 52.2420, the table in paragraph (e)(1) is amended by adding the entry ‘‘Second Maintenance Plan for the Richmond-Petersburg 1997 8-Hour Ozone Nonattainment Area’’ at the end of the table to read as follows: ■ § 52.2420 * Identification of plan. * * (e) * * * (1) * * * EPA approval date * 3/23/23, [INSERT Federal Register CITATION]. (SIP), as revised on December 20, 2022, for attaining the 2010 1-hour primary sulfur dioxide (SO2) national ambient air quality standard (NAAQS). Based on that proposed conditional approval, EPA is making an interim final determination (IFD) by this action. Although this action is effective upon publication, EPA will take comment on this interim final determination. DATES: This interim final determination is effective on March 23, 2023. However, comments will be accepted until April 24, 2023. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R05– OAR–2022–0976 at https:// www.regulations.gov, or via email to arra.sarah@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of PO 00000 recordkeeping requirements, Volatile organic compounds. * * Additional explanation * * The Richmond-Petersburg area consists of the counties of Charles City, Chesterfield, Hanover, Henrico, and Prince George, and the cities of Colonial Heights, Hopewell, Richmond, and Petersburg. submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit E:\FR\FM\23MRR1.SGM 23MRR1 Federal Register / Vol. 88, No. 56 / Thursday, March 23, 2023 / Rules and Regulations https://www2.epa.gov/dockets/ commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Abigail Teener, 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) 353–7314, teener.abigail@ epa.gov. The EPA Region 5 office 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. SUPPLEMENTARY INFORMATION: ddrumheller on DSK120RN23PROD with RULES1 I. Background On March 19, 2021, EPA partially approved and partially disapproved Michigan’s SO2 plan for the Detroit area as submitted in 2016 (86 FR 14827). EPA approved the base-year emissions inventory and affirmed that the new source review (NSR) requirements for the area had previously been met on December 16, 2013 (78 FR 76064). EPA also approved the enforceable control measures for two facilities as SIP strengthening. EPA disapproved the attainment demonstration, as well as the requirements for meeting reasonable further progress (RFP) toward attainment of the NAAQS, reasonably available control measures and reasonably available control technology (RACM/RACT), and contingency measures. Additionally, EPA disapproved the plan’s control measures for two facilities as not demonstrating attainment. EPA’s March 19, 2021, rulemaking triggered the sanctions clock as outlined in section 179 of the Clean Air Act (CAA) and 40 CFR 52.31(d). The two-to-one new source offset sanction took effect on October 19, 2022 (18 months following the effective date of March 19, 2021 rulemaking that triggered the sanctions clock), and the highway funding sanction was scheduled to take effect on April 19, 2023 (6 months after the date of the offset sanctions), in the Detroit nonattainment area as the result of the March 19, 2021, partial disapproval. On October 12, 2022, EPA promulgated a Federal Implementation Plan (FIP) for the Detroit SO2 nonattainment area (87 FR 61514), which satisfied EPA’s duty to promulgate a FIP for the area under CAA section 110(c) that resulted from the previous finding of failure to submit. However, it did not affect the sanctions clock started under CAA section 179 resulting from EPA’s partial disapproval of the prior SIP, which would be permanently stopped only by meeting VerDate Sep<11>2014 16:18 Mar 22, 2023 Jkt 259001 the conditions of EPA’s regulations at 40 CFR 52.31(d)(5). On December 20, 2022, Michigan submitted a revised attainment plan for the Detroit SO2 nonattainment area mirroring EPA’s FIP in order to remedy Michigan’s 2016 plan deficiencies, as specified in EPA’s March 19, 2021 rulemaking. Michigan’s December 20, 2022, plan depends, in part, on permits that have not yet been issued but will include SO2 limits and associated requirements for the U.S. Steel and Dearborn Industrial Generation (DIG) facilities that are no less stringent than those set forth in EPA’s FIP for the Detroit nonattainment area. Under section 110(k)(4) of the CAA, EPA may conditionally approve a plan based on a commitment from the State to adopt specific enforceable measures within one year from the date of approval, accompanied by a schedule for adoption of those measures. EPA’s October 28, 1992, memorandum, entitled ‘‘State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (Act) Deadlines,’’ states that such commitments should include a formal request that EPA approve the commitment, be subject to public hearing pursuant of 40 CFR 51.102, and include a schedule for the adoption of the required measures. Therefore, Michigan included in its December 20, 2022, submittal, which was subject to public hearing, a request that EPA conditionally approve its revised plan for the Detroit area, conditional upon the issuance and submission for incorporation into the SIP of the NSR permits for the U.S. Steel and DIG facilities, as well as a commitment to submit the permits to EPA within one year of a conditional approval. On February 21, 2023, Michigan submitted a letter clarifying the schedule for the conditional approval, including Michigan’s commitment to submit the necessary permits by April 30, 2024, and the schedule Michigan expects to follow to meet that commitment. Michigan’s expected schedule includes ensuring all necessary permit applications are submitted by March 31, 2023, beginning the 240-day permit review process by April 1, 2023, issuing permits by December 1, 2023, and submitting permits to EPA by December 31, 2023. Michigan’s expected date of submittal provides some additional time to accommodate unexpected delays to ensure the State is able to meet its commitment to submit the permits by April 30, 2024, and EPA finds that Michigan’s schedule is reasonable. In the Proposed Rules section of this Federal Register, EPA has proposed to conditionally approve Michigan’s PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 17377 December 20, 2022, plan, pending the timely submittal of the specified permits by April 30, 2024. Regardless, the limits and associated requirements needed to provide for attainment of the SO2 NAAQS in the Detroit area are federally enforceable via EPA’s FIP, codified at 40 CFR 52.1189. II. What action is EPA taking? Under 40 CFR 52.31(d)(2)(ii), if the State has submitted a revised plan to correct the deficiency, and EPA proposes to conditionally approve the plan and issues an IFD that the revised plan corrects the deficiency, application of the new source offset sanction shall be stayed and application of the highway sanction shall be deferred. In the Detroit area, the offset sanction was imposed on October 19, 2022, and the highway sanction, if not deferred, would be imposed on April 19, 2022. Based on the proposed conditional approval of Michigan’s SO2 plan for the Detroit nonattainment area set forth in this Federal Register, EPA believes that it is more likely than not that Michigan has met the requirement to submit a plan that provides for attainment of the 1-hour SO2 NAAQS for the Detroit SO2 nonattainment area under sections 110, 172, 191, and 192 of the CAA. Therefore, EPA is making this IFD finding that the State has corrected the deficiency of failing to submit a plan that provides for attainment of the SO2 NAAQS in the Detroit nonattainment area, contingent on the adoption and timely submittal of permits containing SO2 limits and associated requirements for the U.S. Steel and DIG units in the area that are no less stringent than those limits and requirements set forth in EPA’s FIP for the Detroit area, codified at 40 CFR 52.1189. These limits and requirements will remain federally enforceable via EPA’s FIP, codified at 40 CFR 52.1189, unless EPA fully approves Michigan’s plan and incorporates the appropriate permits into Michigan’s SIP and takes further action to rescind the FIP. EPA also believes that this approach is consistent with the requirements of section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)).1 Generally, under the APA, agency rulemaking affecting the rights of individuals must comply with certain minimum procedural requirements, including publishing a notice of proposed rulemaking in the Federal 1 See also further analyses described in EPA’s August 4, 1994 rulemaking on the Selection of Sequence of Mandatory Sanctions(59 FR 39832, 39849–53), available at https:// archives.federalregister.gov/issue_slice/1994/8/4/ 39826-39866.pdf#page=7. E:\FR\FM\23MRR1.SGM 23MRR1 ddrumheller on DSK120RN23PROD with RULES1 17378 Federal Register / Vol. 88, No. 56 / Thursday, March 23, 2023 / Rules and Regulations Register and providing an opportunity for the public to submit written comments on the proposal, before the rulemaking can have final effect. EPA will not be providing an opportunity for public comment before those deferrals or stays are effective. Consequently, EPA’s approach may appear to conflict with the requirements of the APA. However, EPA will provide an opportunity to comment on the proposed conditional approval that was the basis for the interim final determination and will provide an opportunity, after the fact, for the public to comment on the interim final determination. Thus, an opportunity for comment will be provided before any sanctions clock is permanently stopped or any already applied sanctions are permanently lifted. In the context of the conditional approval, and with respect to the interim final rule, the public would have an opportunity to comment on the appropriateness of EPA’s interim determination that the State had corrected the deficiency and on whether the State should remain subject to sanctions, even though the deferral or stay is already effective. The basis for allowing such an interim final action stems from section 553(b)(B) of the APA which provides that the notice and opportunity for comment requirements do not apply when the Agency finds that those procedures are ‘‘impracticable, unnecessary, or contrary to the public interest.’’ In the case of sanctions, EPA believes it would be both impracticable and contrary to the public interest to have to propose and provide an opportunity to comment before any relief is provided from the effect of sanctions. EPA believes it would be unfair to the State and its citizens, and thus not in the public interest, for sanctions to remain in effect following the proposed conditional approval, since EPA has completed a thorough evaluation of the State’s SIP revision and publicly stated its belief that the submittal is approvable, conditional upon the submittal of the appropriate permits, and that the State has corrected the deficiency, but due to the State permitting procedural requirements the State has not yet been able to adopt the necessary permits. While EPA cannot incorporate permits containing emission limits and associated requirements for the U.S. Steel and DIG limits into Michigan’s SIP at this time, these limits and associated requirements were previously established in EPA’s FIP and will continue to remain federally enforceable as part of the regulatory text of EPA’s FIP, codified at 40 CFR 52.1189. EPA VerDate Sep<11>2014 16:18 Mar 22, 2023 Jkt 259001 believes sanctions coming into effect following the proposed conditional approval would unnecessarily risk potential dislocation in government programs and the marketplace. EPA also believes that the risk of an inappropriate deferral or stay would be comparatively small, given the limited scope and duration deferrals and stays would have and given the rule’s mechanism for making sanctions effective upon reversal of its initial determination that the State had corrected the deficiency. Consequently, EPA believes that the ‘‘good cause’’ exception under the APA allows the Agency to dispense with notice and comment procedures before deferrals and stays of sanctions become effective. In accordance with 5 U.S.C. 553(d) of the APA, EPA finds there is good cause for this action to become effective immediately upon publication. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1). 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. Because this rule relieves a restriction, EPA finds good cause under 5 U.S.C. 553(d)(1) for this action to become effective on the date of publication of this action. Under 40 CFR 52.31(d)(2)(ii), if the State does not meet its commitment and the plan is disapproved, the new source offset sanction shall reapply and the highway sanction shall apply on the date of proposed or final disapproval. III. Statutory and Executive Order Reviews This action stays and defers Federal sanctions and imposes no additional requirements. This action is not a ‘‘significant regulatory action’’ under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This action 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.). This action 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). 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule does not have tribal implications, as specified in Executive Order 13175 because it will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule. This action is not subject to Executive Order 13045, ‘‘Protection of Children from Environmental Health Risks and Safety Risks’’ (62 FR 19885, April 23, 1997), because it is not an economically significant regulatory action. This action is not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. This rulemaking does not involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards. EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, lowincome populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). 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. However, section 808 provides that any rule for which the issuing agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines. 5 U.S.C. 808(2). EPA has made such a good cause finding, including the reasons thereof, and established an E:\FR\FM\23MRR1.SGM 23MRR1 Federal Register / Vol. 88, No. 56 / Thursday, March 23, 2023 / Rules and Regulations effective date of March 23, 2023. 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 May 22, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides. Dated: March 16, 2023. Debra Shore, Regional Administrator, Region 5. I. Introduction [FR Doc. 2023–05820 Filed 3–22–23; 8:45 am] BILLING CODE 6560–50–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 54 [WC Docket No. 17–310; FCC No. 23–6; FR ID 129969] Promoting Telehealth in Rural America Federal Communications Commission. ACTION: Final rule. AGENCY: In this document, the Federal Communications Commission (Commission) seeks to support rural health care providers through the Rural Health Care (RHC) Program, with the costs of broadband and other communications services for patients in rural areas that may have limited resources, fewer doctors, and higher rates than urban areas. DATES: Effective April 24, 2023, except for §§ 54.604 (amendatory instruction 2), 54.605 (amendatory instruction 3), and 54.627 (amendatory instruction 8), which are delayed indefinitely. The Commission will publish a document in the Federal Register announcing the effective date for those rule sections. FOR FURTHER INFORMATION CONTACT: Bryan P. Boyle Bryan.Boyle@fcc.gov, Wireline Competition Bureau, 202–418– 7400 or TTY: 202–418–0484. Requests ddrumheller on DSK120RN23PROD with RULES1 SUMMARY: VerDate Sep<11>2014 16:18 Mar 22, 2023 Jkt 259001 for accommodations should be made as soon as possible in order to allow the agency to satisfy such requests whenever possible. Send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418–0530. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission’s Order on Reconsideration, Second Report and Order, and Order (Order) in WC Docket No. 17–310; FCC No. 23–6, adopted on January 26, 2023 and released on January 27, 2023. The full text of this document is available for public inspection during regular business hours at Commission’s headquarters 45 L Street NE, Washington, DC 20554 or at the following internet address: https://docs.fcc.gov/public/ attachments/FCC-23-6A1.pdf. The Second Further Notice of Proposed Rulemaking (Second FNPRM) that was adopted concurrently with the Order on Reconsideration, Second Report and Order and Order is to be published elsewhere in this issue of the Federal Register. 1. In this document, the Commission continues its efforts to improve the Rural Health Care (RHC) Program. The RHC Program supports rural health care providers with the costs of broadband and other communications services so that they can serve patients in rural areas that may have limited resources, fewer doctors, and higher rates for broadband and communications services than urban areas. Telehealth and telemedicine services, which expanded considerably during the COVID–19 pandemic, have also become essential tools for the delivery of health care to millions of rural Americans. These services bridge the vast geographic distances that separate health care facilities, enabling patients to receive high-quality medical care without sometimes lengthy or burdensome travel. The RHC Program promotes telehealth by providing financial support to eligible health care providers for broadband and telecommunications services. 2. In the Order on Reconsideration section, the Commission addresses petitions for reconsideration of the 2019 Promoting Telehealth Report and Order, FCC 19–78 rel. August 20, 2019 (84 FR 54952, October 11, 2019) (2019 R&O). The Commission grants petitions challenging the database of urban and rural rates (Rates Database) for the Telecommunications Program (Telecom Program) established in the 2019 R&O, return the Telecom Program to the rate PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 17379 determination rules in place before the adoption of the Rates Database, and deny petitions for reconsideration of other issues from the 2019 R&O. In the Second Report and Order section, the Commission adopts proposals from the 2022 Further Notice of Proposed Rulemaking, FCC 22–15 rel. February 22, 2022 (87 FR 14421, March 15, 2022) (2022 FNPRM) to amend RHC Program invoicing processes and the internal cap application and prioritization rules to promote efficiency, reduce delays in funding commitments, and prioritize support for the current funding year. In the Order section, the Commission dismisses as moot Applications for Review of the Commission’s guidance to the Universal Service Administrative Company (the Administrator) regarding the Rates Database. II. Order on Reconsideration 3. In the Order on Reconsideration, the Commission restores the mechanisms for calculating rural and urban rates that existed before adoption of the 2019 R&O. The Commission upholds the 2019 R&O’s rule changes regarding what services are similar to one another. The Commission maintains the rurality tiers adopted in the 2019 R&O, which, due to the elimination of the Rates Database, now apply only to the prioritization of funding requests. The Commission also keeps the internal cap and funding prioritization systems and invoice certifications requirements from the 2019 R&O. 4. Rate Determination. As an initial matter, the Commission grants in part petitions seeking reconsideration of the rules the Commission adopted in the 2019 R&O to implement the Rates Database and restore the three methods for calculating rural rates in the Telecom Program. The Commission denies petitions for reconsideration seeking review of clarifications and rules adopted in the 2019 R&O regarding similar services and site and service substitution rules and dismiss as moot all remaining petitions related to the rules governing the Rates Database. 5. Urban and Rural Rates Determination Mechanism. The Commission grants in part petitions seeking reconsideration of the adoption of the Rates Database in the 2019 R&O. The Commission amends the current §§ 54.504 and 54.505 of its rules to eliminate the use of the Rates Database to determine urban and rural rates and rescind the Commission’s direction to the Administrator in the 2019 R&O to create the Rates Database. Based on the record, the Commission finds that reinstating the Commission’s previous rules for calculating urban and rural E:\FR\FM\23MRR1.SGM 23MRR1

Agencies

[Federal Register Volume 88, Number 56 (Thursday, March 23, 2023)]
[Rules and Regulations]
[Pages 17376-17379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05820]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2022-0976; FRL-10788-03-R5]


Air Plan Approval; Michigan; Interim Final Determination To Stay 
and Defer Sanctions in the Detroit Sulfur Dioxide Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: In the Proposed Rules section of this Federal Register, EPA is 
proposing conditional approval of Michigan's State Implementation Plan 
(SIP), as revised on December 20, 2022, for attaining the 2010 1-hour 
primary sulfur dioxide (SO2) national ambient air quality 
standard (NAAQS). Based on that proposed conditional approval, EPA is 
making an interim final determination (IFD) by this action. Although 
this action is effective upon publication, EPA will take comment on 
this interim final determination.

DATES: This interim final determination is effective on March 23, 2023. 
However, comments will be accepted until April 24, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2022-0976 at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit

[[Page 17377]]

https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Abigail Teener, 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) 353-7314, 
[email protected]. The EPA Region 5 office 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.

SUPPLEMENTARY INFORMATION:

I. Background

    On March 19, 2021, EPA partially approved and partially disapproved 
Michigan's SO2 plan for the Detroit area as submitted in 
2016 (86 FR 14827). EPA approved the base-year emissions inventory and 
affirmed that the new source review (NSR) requirements for the area had 
previously been met on December 16, 2013 (78 FR 76064). EPA also 
approved the enforceable control measures for two facilities as SIP 
strengthening. EPA disapproved the attainment demonstration, as well as 
the requirements for meeting reasonable further progress (RFP) toward 
attainment of the NAAQS, reasonably available control measures and 
reasonably available control technology (RACM/RACT), and contingency 
measures. Additionally, EPA disapproved the plan's control measures for 
two facilities as not demonstrating attainment. EPA's March 19, 2021, 
rulemaking triggered the sanctions clock as outlined in section 179 of 
the Clean Air Act (CAA) and 40 CFR 52.31(d). The two-to-one new source 
offset sanction took effect on October 19, 2022 (18 months following 
the effective date of March 19, 2021 rulemaking that triggered the 
sanctions clock), and the highway funding sanction was scheduled to 
take effect on April 19, 2023 (6 months after the date of the offset 
sanctions), in the Detroit nonattainment area as the result of the 
March 19, 2021, partial disapproval.
    On October 12, 2022, EPA promulgated a Federal Implementation Plan 
(FIP) for the Detroit SO2 nonattainment area (87 FR 61514), 
which satisfied EPA's duty to promulgate a FIP for the area under CAA 
section 110(c) that resulted from the previous finding of failure to 
submit. However, it did not affect the sanctions clock started under 
CAA section 179 resulting from EPA's partial disapproval of the prior 
SIP, which would be permanently stopped only by meeting the conditions 
of EPA's regulations at 40 CFR 52.31(d)(5). On December 20, 2022, 
Michigan submitted a revised attainment plan for the Detroit 
SO2 nonattainment area mirroring EPA's FIP in order to 
remedy Michigan's 2016 plan deficiencies, as specified in EPA's March 
19, 2021 rulemaking. Michigan's December 20, 2022, plan depends, in 
part, on permits that have not yet been issued but will include 
SO2 limits and associated requirements for the U.S. Steel 
and Dearborn Industrial Generation (DIG) facilities that are no less 
stringent than those set forth in EPA's FIP for the Detroit 
nonattainment area.
    Under section 110(k)(4) of the CAA, EPA may conditionally approve a 
plan based on a commitment from the State to adopt specific enforceable 
measures within one year from the date of approval, accompanied by a 
schedule for adoption of those measures. EPA's October 28, 1992, 
memorandum, entitled ``State Implementation Plan (SIP) Actions 
Submitted in Response to Clean Air Act (Act) Deadlines,'' states that 
such commitments should include a formal request that EPA approve the 
commitment, be subject to public hearing pursuant of 40 CFR 51.102, and 
include a schedule for the adoption of the required measures. 
Therefore, Michigan included in its December 20, 2022, submittal, which 
was subject to public hearing, a request that EPA conditionally approve 
its revised plan for the Detroit area, conditional upon the issuance 
and submission for incorporation into the SIP of the NSR permits for 
the U.S. Steel and DIG facilities, as well as a commitment to submit 
the permits to EPA within one year of a conditional approval. On 
February 21, 2023, Michigan submitted a letter clarifying the schedule 
for the conditional approval, including Michigan's commitment to submit 
the necessary permits by April 30, 2024, and the schedule Michigan 
expects to follow to meet that commitment. Michigan's expected schedule 
includes ensuring all necessary permit applications are submitted by 
March 31, 2023, beginning the 240-day permit review process by April 1, 
2023, issuing permits by December 1, 2023, and submitting permits to 
EPA by December 31, 2023. Michigan's expected date of submittal 
provides some additional time to accommodate unexpected delays to 
ensure the State is able to meet its commitment to submit the permits 
by April 30, 2024, and EPA finds that Michigan's schedule is 
reasonable.
    In the Proposed Rules section of this Federal Register, EPA has 
proposed to conditionally approve Michigan's December 20, 2022, plan, 
pending the timely submittal of the specified permits by April 30, 
2024. Regardless, the limits and associated requirements needed to 
provide for attainment of the SO2 NAAQS in the Detroit area 
are federally enforceable via EPA's FIP, codified at 40 CFR 52.1189.

II. What action is EPA taking?

    Under 40 CFR 52.31(d)(2)(ii), if the State has submitted a revised 
plan to correct the deficiency, and EPA proposes to conditionally 
approve the plan and issues an IFD that the revised plan corrects the 
deficiency, application of the new source offset sanction shall be 
stayed and application of the highway sanction shall be deferred. In 
the Detroit area, the offset sanction was imposed on October 19, 2022, 
and the highway sanction, if not deferred, would be imposed on April 
19, 2022.
    Based on the proposed conditional approval of Michigan's 
SO2 plan for the Detroit nonattainment area set forth in 
this Federal Register, EPA believes that it is more likely than not 
that Michigan has met the requirement to submit a plan that provides 
for attainment of the 1-hour SO2 NAAQS for the Detroit 
SO2 nonattainment area under sections 110, 172, 191, and 192 
of the CAA. Therefore, EPA is making this IFD finding that the State 
has corrected the deficiency of failing to submit a plan that provides 
for attainment of the SO2 NAAQS in the Detroit nonattainment 
area, contingent on the adoption and timely submittal of permits 
containing SO2 limits and associated requirements for the 
U.S. Steel and DIG units in the area that are no less stringent than 
those limits and requirements set forth in EPA's FIP for the Detroit 
area, codified at 40 CFR 52.1189. These limits and requirements will 
remain federally enforceable via EPA's FIP, codified at 40 CFR 52.1189, 
unless EPA fully approves Michigan's plan and incorporates the 
appropriate permits into Michigan's SIP and takes further action to 
rescind the FIP.
    EPA also believes that this approach is consistent with the 
requirements of section 553 of the Administrative Procedure Act (APA) 
(5 U.S.C. 553(b)(3)).\1\ Generally, under the APA, agency rulemaking 
affecting the rights of individuals must comply with certain minimum 
procedural requirements, including publishing a notice of proposed 
rulemaking in the Federal

[[Page 17378]]

Register and providing an opportunity for the public to submit written 
comments on the proposal, before the rulemaking can have final effect. 
EPA will not be providing an opportunity for public comment before 
those deferrals or stays are effective. Consequently, EPA's approach 
may appear to conflict with the requirements of the APA. However, EPA 
will provide an opportunity to comment on the proposed conditional 
approval that was the basis for the interim final determination and 
will provide an opportunity, after the fact, for the public to comment 
on the interim final determination. Thus, an opportunity for comment 
will be provided before any sanctions clock is permanently stopped or 
any already applied sanctions are permanently lifted. In the context of 
the conditional approval, and with respect to the interim final rule, 
the public would have an opportunity to comment on the appropriateness 
of EPA's interim determination that the State had corrected the 
deficiency and on whether the State should remain subject to sanctions, 
even though the deferral or stay is already effective.
---------------------------------------------------------------------------

    \1\ See also further analyses described in EPA's August 4, 1994 
rulemaking on the Selection of Sequence of Mandatory Sanctions(59 FR 
39832, 39849-53), available at https://archives.federalregister.gov/issue_slice/1994/8/4/39826-39866.pdf#page=7.
---------------------------------------------------------------------------

    The basis for allowing such an interim final action stems from 
section 553(b)(B) of the APA which provides that the notice and 
opportunity for comment requirements do not apply when the Agency finds 
that those procedures are ``impracticable, unnecessary, or contrary to 
the public interest.'' In the case of sanctions, EPA believes it would 
be both impracticable and contrary to the public interest to have to 
propose and provide an opportunity to comment before any relief is 
provided from the effect of sanctions. EPA believes it would be unfair 
to the State and its citizens, and thus not in the public interest, for 
sanctions to remain in effect following the proposed conditional 
approval, since EPA has completed a thorough evaluation of the State's 
SIP revision and publicly stated its belief that the submittal is 
approvable, conditional upon the submittal of the appropriate permits, 
and that the State has corrected the deficiency, but due to the State 
permitting procedural requirements the State has not yet been able to 
adopt the necessary permits. While EPA cannot incorporate permits 
containing emission limits and associated requirements for the U.S. 
Steel and DIG limits into Michigan's SIP at this time, these limits and 
associated requirements were previously established in EPA's FIP and 
will continue to remain federally enforceable as part of the regulatory 
text of EPA's FIP, codified at 40 CFR 52.1189. EPA believes sanctions 
coming into effect following the proposed conditional approval would 
unnecessarily risk potential dislocation in government programs and the 
marketplace. EPA also believes that the risk of an inappropriate 
deferral or stay would be comparatively small, given the limited scope 
and duration deferrals and stays would have and given the rule's 
mechanism for making sanctions effective upon reversal of its initial 
determination that the State had corrected the deficiency. 
Consequently, EPA believes that the ``good cause'' exception under the 
APA allows the Agency to dispense with notice and comment procedures 
before deferrals and stays of sanctions become effective.
    In accordance with 5 U.S.C. 553(d) of the APA, EPA finds there is 
good cause for this action to become effective immediately upon 
publication. The immediate effective date for this action is authorized 
under both 5 U.S.C. 553(d)(1).
    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. Because 
this rule relieves a restriction, EPA finds good cause under 5 U.S.C. 
553(d)(1) for this action to become effective on the date of 
publication of this action.
    Under 40 CFR 52.31(d)(2)(ii), if the State does not meet its 
commitment and the plan is disapproved, the new source offset sanction 
shall reapply and the highway sanction shall apply on the date of 
proposed or final disapproval.

III. Statutory and Executive Order Reviews

    This action stays and defers Federal sanctions and imposes no 
additional requirements.
    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).
    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).
    This action 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.).
    This action 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).
    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, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
    This rule does not have tribal implications, as specified in 
Executive Order 13175 because it will not have substantial direct 
effects on tribal governments. Thus, Executive Order 13175 does not 
apply to this rule.
    This action is not subject to Executive Order 13045, ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not an economically significant 
regulatory action.
    This action is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a 
significant regulatory action under Executive Order 12866.
    This rulemaking does not involve technical standards. Therefore, 
the EPA is not considering the use of any voluntary consensus 
standards.
    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low-income populations, and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
    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. However, section 808 provides 
that any rule for which the issuing agency for good cause finds that 
notice and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest, shall take effect at such time as the 
agency promulgating the rule determines. 5 U.S.C. 808(2). EPA has made 
such a good cause finding, including the reasons thereof, and 
established an

[[Page 17379]]

effective date of March 23, 2023. 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 May 22, 2023. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements, Sulfur oxides.

    Dated: March 16, 2023.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2023-05820 Filed 3-22-23; 8:45 am]
BILLING CODE 6560-50-P
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.