Air Plan Approval; Michigan; Redesignation of the Detroit, MI Area to Attainment of the 2015 Ozone Standards, 32594-32615 [2023-10563]
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Federal Register / Vol. 88, No. 97 / Friday, May 19, 2023 / Rules and Regulations
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: May 12, 2023.
Debra Shore,
Regional Administrator, Region 5.
‘‘2015 Ozone Clean Data Determination’’
immediately after the entry for
‘‘Determination of failure to attain the
2010 SO2 standard’’ to read as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
§ 52.1170
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Authority: 42 U.S.C. 7401 et seq.
For the reasons stated in the
preamble, title 40 CFR part 52 is
amended as follows:
2. In § 52.1170, the table in paragraph
(e) is amended by adding an entry for
■
Identification of plan.
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(e) * * *
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EPA—APPROVED MICHIGAN NONREGULATORY AND QUASI-REGULATORY PROVISIONS
Name of
nonregulatory
SIP provision
Applicable geographic or
nonattainment area
State
submittal
date
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2015 Ozone
Clean Data
Determination.
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Detroit area (Livingston,
Macomb, Monroe, Oakland, St. Clair,
Washtenaw, and Wayne
Counties).
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BILLING CODE 6560–50–P
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EPA’s final determination suspends the requirements
for EGLE to submit an attainment demonstration
and other associated nonattainment planning requirements for the Detroit nonattainment area for
as long as the area continues to attain the 2015
ozone NAAQS.
*
*
This final rule is effective on
May 19, 2023.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2022–0004. All
documents in the docket are listed on
the www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
i.e., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either through
www.regulations.gov or at the
Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays and
facility closures due to COVID–19. We
recommend that you telephone 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.
DATES:
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 81
[EPA–R05–OAR–2022–0004; FRL–9629–04–
R5]
Air Plan Approval; Michigan;
Redesignation of the Detroit, MI Area
to Attainment of the 2015 Ozone
Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is finalizing its
redesignation of the Detroit, Michigan
area to attainment for the 2015 ozone
National Ambient Air Quality Standards
(NAAQS) in accordance with a request
from the Michigan Department of
Environment, Great Lakes, and Energy
(EGLE). EGLE submitted this request on
January 3, 2022. EPA is approving, as a
revision to the Michigan State
Implementation Plan (SIP), the State’s
plan for maintaining the 2015 ozone
NAAQS through 2035 in the Detroit
area. EPA is also finding adequate and
approving Michigan’s 2025 and 2035
volatile organic compound (VOC) and
oxides of nitrogen (NOX) motor vehicle
emissions budgets (budgets) for the
Detroit area. The Detroit area includes
Livingston, Macomb, Monroe, Oakland,
SUMMARY:
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5/19/2023, [INSERT FEDERAL REGISTER CITATION].
St. Clair, Washtenaw, and Wayne
Counties.
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Comments
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[FR Doc. 2023–10562 Filed 5–18–23; 8:45 am]
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SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
I. Background
EPA is redesignating the Detroit area
to attainment of the 2015 ozone
standard, in accordance with EGLE’s
January 3, 2022, submission. The
background for this action is discussed
in detail in EPA’s proposal, dated March
14, 2022 (87 FR 14210). In that proposal,
we noted that, under EPA’s regulations
at 40 CFR part 50, the 2015 ozone
NAAQS is attained in an area when the
3-year average of the annual fourth
highest daily maximum 8-hour average
concentration (i.e., the design value) is
equal to or less than 0.070 parts per
million (ppm), when truncated after the
thousandth decimal place, at all of the
ozone monitoring sites in the area. (See
40 CFR 50.19 and appendix U to 40 CFR
part 50.) Under the Clean Air Act
(CAA), EPA may redesignate
nonattainment areas to attainment if
complete, quality-assured data show
that the area has attained the standard
and the area meets the other CAA
redesignation requirements in section
107(d)(3)(E). The proposed rule
provides a detailed discussion of how
Michigan has met these CAA
requirements and EPA’s rationale for
approving the redesignation request.
As discussed in the proposed rule,
quality-assured and certified monitoring
data for 2019–2021 show that the area
has attained the 2015 ozone standard,
and EPA has determined that the
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Federal Register / Vol. 88, No. 97 / Friday, May 19, 2023 / Rules and Regulations
attainment is due to permanent and
enforceable measures. In the
maintenance plan submitted for the
area, Michigan has demonstrated that
compliance with the ozone standard
will be maintained in the area through
2035. As also discussed in the proposed
rule, Michigan has adopted 2025 and
2035 VOC and NOX motor vehicle
emissions budgets for the area that are
supported by Michigan’s maintenance
demonstration.
Michigan has met the requirements
applicable to redesignations through
various SIP submittals. On July 6, 2022
(87 FR 40097), consistent with
conditions identified in our proposed
rulemaking, EPA approved portions of
separate December 18, 2020, submittals
as meeting the applicable requirements
for a base year emissions inventory and
an emissions statement program. In this
rulemaking EPA is also approving, as a
revision to the Michigan SIP, the State’s
maintenance plan for the area. The
maintenance plan is designed to keep
the Detroit area in attainment of the
2015 ozone NAAQS through 2035.
Additionally, EPA is finding adequate
and approving Michigan’s newly
established 2025 and 2035 motor
vehicle emissions budgets for NOX and
VOCs for the area. With these approvals
of Michigan’s SIP submissions, all SIP
requirements applicable to
redesignation are fully approved.
After publication of the proposed
rule, EPA finalized two additional
rulemakings related to the attainment
status of the Detroit nonattainment area.
First, on February 1, 2023, EPA found
that the Detroit area failed to attain the
2015 ozone NAAQS by its Marginal
attainment date of August 3, 2021, based
on the area’s design value as of the
attainment date (i.e., monitoring data
from 2018–2020). As a result of that
determination, the area was reclassified
by operation of law to Moderate, with
SIP submissions associated with the
Moderate area classification due March
1, 2023 (88 FR 6633). As described
below in EPA’s response to comments,
consistent with EPA’s longstanding
interpretation of CAA section
107(d)(3)(E)(ii) and (v), and as described
in the final determination and
classification, EPA’s role is to assess
whether Michigan adequately addressed
all requirements applicable to
redesignation that applied to Detroit on
the date of EGLE’s submittal (88 FR
6633, 6635). Because EGLE submitted a
complete and approvable redesignation
request on January 3, 2022, the
Moderate area requirements that became
due on March 1, 2023, are not
applicable for purposes of this
redesignation. Second, EPA has issued a
determination that the area is attaining
the 2015 ozone NAAQS based on air
quality monitoring data from 2020–
2022, i.e., a clean data determination. In
issuing the clean data determination,
EPA took notice and comment on its
concurrence on a January 26, 2023,
exceptional events demonstration
submitted by EGLE. The demonstration
requested exclusion of wildfire eventinfluenced data from the 2020–2022
design value period for the 2015 ozone
NAAQS for the Detroit nonattainment
area.
II. Motor Vehicle Emission Budgets
Under section 176(c) of the CAA, new
transportation plans, programs, or
projects that receive Federal funding or
32595
support, such as the construction of new
highways, must ‘‘conform’’ to (i.e., be
consistent with) the SIP. Conformity to
the SIP means that transportation
activities will not cause or contribute to
any new air quality violations, increase
the frequency or severity of any existing
air quality violations, or delay timely
attainment or any required interim
emissions reductions or any other
milestones. Transportation conformity
continues to apply in areas redesignated
to attainment with a maintenance plan,
so the Detroit area will continue to be
subject to transportation conformity
requirements.
As shown in Table 1, Michigan’s
maintenance plan includes NOX and
VOC motor vehicle emission budgets
(‘‘budgets’’) for the Detroit area for 2025,
the interim year, and 2035, the last year
of the maintenance period. The budgets
are the portion of the total allowable
emissions that are allocated to highway
and transit vehicle use that, together
with emissions from other sources in
the Detroit area, are projected to result
in air quality that either attains or
maintains the NAAQS. These budgets
represent the projected 2025 and 2035
on-road emissions plus a safety margin
allocation and are consistent with the
State’s demonstration of maintenance of
the 2015 ozone NAAQS. The safety
margin and the allocation of a portion
of it to the motor vehicle emissions
budgets are described below. Detailed
information on the transportation
conformity program can be found in our
March 14, 2022, proposed approval of
Michigan’s redesignation request (87 FR
14210).
TABLE 1—2025 AND 2035 BUDGETS FOR THE DETROIT AREA FOR THE 2015 OZONE NAAQS MAINTENANCE PLAN
[Tons per summer day]
2025 Interim year
Projected
on-road
emissions
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NOX ..................................................................................
VOCs ................................................................................
A ‘‘safety margin’’ is the difference
between the attainment level of
emissions (from all sources) and the
projected level of emissions (from all
sources) in the maintenance plan.
Further, the transportation conformity
regulations allow states to allocate all or
a portion of a documented safety margin
to the motor vehicle emissions budgets
for an area (40 CFR 93.124(a)). Michigan
is allocating a considerable portion of
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61.20
34.40
Safety
margin
allocation
2035 Maintenance year
43.15
13.46
104.35
47.86
that safety margin to the mobile source
sector. Specifically, in 2025, Michigan is
allocating 43.15 tons per summer day
(TPSD) and 13.46 TPSD of the NOX and
VOC safety margins, respectively,
representing approximately 65 percent
of the available safety margins, to the
motor vehicle emissions budgets. In
2035, Michigan is allocating 62.11 TPSD
and 22.67 TPSD of the NOX and VOC
safety margins, respectively,
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Projected
on-road
emissions
Total
budget
40.30
22.00
Safety
margin
allocation
62.11
22.67
Total
budget
102.41
44.67
representing approximately 65 percent
of the available safety margins, to the
motor vehicle emissions budgets. Since
only a part of the safety margin is being
used for this purpose, maintenance
requirements are still met. Once
allocated to mobile sources, these
portions of the safety margins will not
be available for use by other sources.
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III. Environmental Justice (EJ)
Considerations
To identify environmental burdens
and susceptible populations in
communities in the Detroit area, EPA
performed a screening-level analysis
using EPA’s EJ screening and mapping
tool (‘‘EJSCREEN’’).1 EPA utilized
EJSCREEN to evaluate environmental
and demographic indicators at the
county level for each county within the
area (Livingston, Macomb, Monroe,
Oakland, St. Clair, Washtenaw, and
Wayne Counties).
EJSCREEN provides environmental
indicators for 12 pollutants or sources,
which include fine particulate matter
(PM2.5), ozone, air toxics cancer risk,
traffic proximity, lead paint, Superfund
site proximity, underground storage
tanks, and wastewater discharge. Of the
seven counties in the Detroit area, all
but St. Clair County score at or above
the 80th percentile nationally for at least
one indicator: Livingston County for
Superfund site proximity and
wastewater; Macomb County for PM2.5,
traffic proximity, Superfund site
proximity, and underground storage
tanks; Monroe County for ozone;
Oakland County for traffic proximity,
underground storage tanks, and
wastewater; Washtenaw County for
underground storage tanks; and Wayne
County for PM2.5, air toxics cancer risk,
traffic proximity, lead paint,
underground storage tanks, and
wastewater discharge.
EPA’s screening-level analysis
indicates that, of the seven counties in
the Detroit area, only Wayne County
scores above the national average for the
EJSCREEN ‘‘Demographic Index’’,
which is the average of an area’s percent
minority and percent low-income
populations, i.e., the two demographic
indicators explicitly named in Executive
Order 12898. As discussed in EPA’s EJ
technical guidance, people of color and
low-income populations often
experience greater exposure and disease
burdens than the general population,
which can increase their susceptibility
to adverse health effects from
environmental stressors.2 As a function
in part of its relatively high
demographic index, Wayne County is
the only county in the Detroit area
scoring at or above the 80th percentile
in at least one EJ Index, which is
derived by combining a single
environmental factor with the
demographic indicator. Specifically,
Wayne County has EJ Indexes above the
80th percentile in PM2.5, ozone, traffic
proximity, lead paint, and underground
storage tanks. EPA has provided that if
any of the EJ indexes for the areas under
consideration are at or above the 80th
percentile nationally, then further
review may be appropriate.3
For further review, EPA has evaluated
the ozone monitor trends and
determined that all the monitors in the
nonattainment area are similarly
demonstrating attainment and therefore,
there is no evidence that any one
community is experiencing different air
quality for this NAAQS from another.
To consider whether the improvement
in air quality has been observed
throughout the area, including the
portions of the area containing
communities that are pollutionburdened and underserved, EPA
conducted an additional analysis of
historical ozone design values in the
Detroit area. Specifically, EPA reviewed
data from the seven monitors in the area
that have been operating since the
2001–2003 design value period: the
Macomb County monitor at New Haven
with Site ID 26–099–0009, the Macomb
County monitor at Warren with Site ID
26–099–1003, the Oakland County
monitor at Oak Park with Site ID 26–
125–0001, the St. Clair County monitor
at Port Huron with Site ID 26–147–0005,
the Washtenaw County monitor at
Ypsilanti with Site ID 26–161–0008, the
Wayne County monitor at Allen Park
with Site ID 26–163–0001, and the
Wayne County monitor at East 7 Mile
with Site ID 26–163–0019. Ozone design
values in the Detroit area have declined
significantly from 0.097 ppm in 2001–
2003 to 0.070 ppm in 2019–2021. As
shown in Table 2, the improvement in
air quality has been observed at every
monitor in the Detroit area. Specifically,
ozone design values at each monitor
have improved by between 20% and
31%.
TABLE 2—IMPROVEMENT IN OZONE DESIGN VALUES BETWEEN THE 2001–2003 PERIOD AND 2019–2021 PERIOD
2001–2003
Design value
(ppm)
Monitor
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New Haven ......................................................................................
Warren .............................................................................................
Oak Park ..........................................................................................
Port Huron .......................................................................................
Ypsilanti ...........................................................................................
Allen Park ........................................................................................
East 7 Mile .......................................................................................
2010–2012
Design value
(ppm)
0.097
0.095
0.091
0.090
0.091
0.084
0.091
2019–2021
Design value
(ppm)
0.078
0.079
0.078
0.077
0.076
0.074
0.081
Improvement
between
2001–2003 and
2019–2021
(%)
0.068
0.066
0.069
0.070
0.066
0.067
0.070
30
31
24
22
27
20
23
Upon publication of the March 14,
2022, proposed rulemaking, EPA
opened a 30-day comment period,
ending April 13, 2022 (87 FR 14210). On
April 4, 2022, in response to a request
from Sierra Club, EPA extended the
comment period by an additional 14
days through April 27, 2022 (87 FR
19414). During the comment period EPA
received three supportive comment
letters and three adverse comment
letters. Two adverse comment letters
were submitted by students at the
University of Michigan. The third
adverse comment letter was submitted
by Sierra Club and Great Lakes
Environmental Law Center (GLELC), on
behalf of themselves and 19 other
groups based in Michigan. On March 14,
2023, after the close of the comment
period for this rulemaking or any
rulemaking relating to the Detroit area,
1 See documentation on EPA’s Environmental
Justice Screening and Mapping Tool at https://
www.epa.gov/ejscreen.
2 EPA, ‘‘Technical Guidance for Assessing
Environmental Justice in Regulatory Analysis,’’
section 4 (June 2016).
3 EPA, ‘‘EJSCREEN Technical Documentation,’’
appendix H (September 2019).
Not only have ozone design values at
all monitors improved by the relatively
consistent margin of 20% to 31%, but
the design values at all monitors have
been relatively consistent within each
3-year period.
IV. Response to Comments
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GLELC and Sierra Club sent what they
described as ‘‘supplemental comments’’
regarding the proposed redesignation.
EPA is exercising its discretion to
respond to these comments herein.
Summaries of the adverse comments
and EPA’s responses are provided
below.
Comment: Two students at the
University of Michigan raised concerns
with EPA’s proposed approval of
EGLE’s redesignation request. One
student shared their fear that
redesignating the Detroit area could
increase ground-level ozone and
suggested that deregulation in the past
has ‘‘worsened our fight against climate
change.’’ The second student raised
concerns about Detroit’s air quality,
given the existence of power plants and
other facilities in the area. Given EPA’s
April 13, 2022, proposed determination
that the Detroit area failed to attain the
2015 ozone NAAQS by its attainment
date based on 2018–2020 data, this
student believes it is inappropriate to
reevaluate the area’s legal designation at
this time. This student suggested that
‘‘legal status should only be considered
when changes have been made and have
been upheld over a substantial period of
time.’’
Response: These commenters raise
issues that are similar to the concerns of
Sierra Club and GLELC, which we
discuss more extensively below.
A redesignation to attainment does
not remove any emission control
measures for existing sources that are
already adopted into the EPA approved
SIP for Michigan. As we discuss below
and in the March 14, 2022, proposal,
EGLE’s redesignation request includes a
demonstration that attainment of the
2015 ozone NAAQS was attributable to
permanent and enforceable emissions
reductions. Further, EGLE’s January 3,
2022, submission includes a plan to
maintain the NAAQS through 2035 in
the Detroit area, as well as a
contingency plan that would be
triggered if the area were to violate the
2015 ozone NAAQS in the future. While
EPA agrees that climate change is an
important issue, this rulemaking
addresses the separate issue of the
Detroit area’s designation for the 2015
ozone NAAQS.
Regarding concerns about the
existence of power plants and other
industrial facilities in the area, we refer
the commenter to Table 2 in EPA’s
March 14, 2022, proposal, which shows
significant emissions decreases in the
Detroit area from 2014 to 2019.
Specifically, NOX and VOC emissions
from point, nonpoint, on-road, and
nonroad sources in the Detroit area
declined by 203.21 tons per ozone
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season day and 104.33 tons per ozone
season day, respectively, between 2014
and 2019. Decreases in NOX and VOC
emissions from point sources, which is
the category including power plants,
account for 69.85 TPSD and 18.50
TPSD, respectively, of the total
decrease. These emissions decreases
have contributed to the gradual
reductions in ozone concentrations in
the Detroit area. Further discussion of
the commenter’s suggestion that EPA
should delay action on Michigan’s
redesignation request is found below.
A. Monitoring Data
Comment: Sierra Club and GLELC
observe that the Detroit area attained the
2015 ozone NAAQS, but they raise
concerns that the ‘‘margin for NAAQS
compliance is particularly thin’’ at two
monitors in the Detroit area. The
commenters predict future values at
which the NAAQS would be exceeded
at four monitors in the area, and raise
additional concerns that the area may
violate the NAAQS during the 2022
ozone season. The commenters contend
that, in order to approve a redesignation
request, EPA must find that the
improvement in air quality is
‘‘permanent’’ and the result of
‘‘enforceable reductions to emissions,’’
and that, in this case, neither of those
conditions has been met.
Response: The 2015 ozone NAAQS is
defined at 40 CFR 50.19, and appendix
U to 40 CFR part 50 contains the data
handling conventions and computations
necessary for determining whether the
NAAQS has been met at a monitoring
site. To attain the 2015 ozone NAAQS,
the 3-year average of the annual fourthhighest daily maximum 8-hour average
ozone concentrations (ozone design
values) at each monitor must not exceed
0.070 ppm. As described in appendix U,
design values are reported in ppm to
three decimal places, with additional
digits to the right of the third decimal
place truncated.
The commenters conflate two separate
demonstrations that are required under
the statutory criteria for redesignation.
CAA section 107(d)(3)(E)(i) provides
that EPA may not promulgate a
redesignation to attainment unless the
Administrator ‘‘determines that the area
has attained the national ambient air
quality standard.’’ In finding that an
area has met the first criterion, the
statute does not require EPA to assess
how long that attainment has been
occurring for or by what margin the area
is attaining. Therefore, the margin by
which an area (or monitor) attains the
NAAQS is not relevant to the question
of whether or not the area is attaining
the NAAQS. Separately, CAA section
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107(d)(3)(E)(iii) provides that the
Administrator must also determine
‘‘that the improvement in air quality is
due to permanent and enforceable
reductions in emissions resulting from
implementation of the applicable
implementation plan and applicable
Federal air pollutant control regulations
and other permanent and enforceable
reductions.’’ As used in CAA section
107(d)(3)(E), the term ‘‘permanent’’ does
not describe the improvement in air
quality, as commenters suggest, but
instead describes the emissions
reductions to which attainment must be
attributable.
Michigan’s plan for maintaining the
NAAQS is relevant under CAA section
107(d)(3)(E)(iv), which provides that the
Administrator must fully approve ‘‘a
maintenance plan for the area as
meeting the requirements of section
175A.’’ The requirement for a
maintenance plan includes the
requirement for contingency provisions
to be triggered should an area violate the
NAAQS after redesignation, which
illustrates that the CAA anticipates
some possibility that areas may in the
future violate the NAAQS despite
meeting all requirements under CAA
section 107(d)(3)(E). In this final rule
EPA is approving EGLE’s plan for
maintaining the NAAQS through 2035,
as described below and in the proposed
rule.
B. Planning Requirements
Comment: Sierra Club and GLELC
raise concerns that redesignation ‘‘could
jeopardize public health by
unnecessarily delaying needed air
quality planning requirements.’’ The
commenters note EPA’s separate
proposal to reclassify the Detroit area as
Moderate, which would trigger new
requirements for SIP submissions. The
commenters allege that redesignation
would ‘‘prematurely halt ongoing
planning efforts to reduce NOX and
VOCs’’ and without a nonattainment
designation the State will face ‘‘no
obligation to select or implement any of
these control measures to assure ozone
levels are maintained below the
NAAQS.’’ The commenters allege that
although ‘‘similar discussions and
planning might resume upon
redesignation to nonattainment, there
could be several years of delay in the
meantime while excess ozone levels
endanger public health.’’ The
commenters reference requirements for
Reasonably Available Control
Technology (RACT), and the potential
for reductions in NOX emissions from
the Monroe power plant, claiming that
this facility emitted 15,219 tons of NOX
in 2014.
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Response: In a separate rulemaking
published April 13, 2022, EPA proposed
to reclassify the Detroit area as
Moderate, based on air quality data from
2018–2020 showing the Detroit area
failed to attain the 2015 ozone NAAQS
by its Marginal attainment date. EPA
finalized the reclassification as
Moderate on February 1, 2023, and
established a deadline of March 1, 2023,
for most SIP revisions associated with
Moderate area requirements, including
requirements for an attainment plan and
RACT. However, upon the effective date
of this redesignation to attainment,
nonattainment requirements, including
Moderate area requirements, will no
longer apply to the Detroit area.
As described below, if the Detroit area
violates the 2015 ozone NAAQS after
this redesignation, then Michigan would
be required to implement its
contingency plan to bring the area back
into attainment. The contingency
provisions submitted by EGLE include
adoption or expansion of NOX RACT
rules and/or VOC RACT rules for
existing stationary sources. This is the
construct of the CAA with regard to
redesignated attainment areas to provide
for protections associated with air
quality in designated attainment areas.
It should be noted that many sources
that would be subject to VOC RACT
under the 2015 ozone NAAQS have
implemented VOC controls as required
by the rules Michigan adopted to meet
VOC RACT requirements under the
1979 ozone NAAQS. See 59 FR 46182,
September 7, 1994.
To illustrate the example of a facility
with high NOX emissions which could
be subject to additional control
requirements, the commenters reference
the Monroe power plant, and incorrectly
claim this facility emitted 15,219 tons of
NOX in 2014. According to EPA’s 2014
National Emissions Inventory (NEI), the
Monroe power plant emitted 8,320 tons
of NOX in 2014.4 A separate data source,
EPA’s Clean Air Markets Program Data
(CAMPD), shows a similar result of
8,296 tons of NOX in 2014.5 However,
as shown in the CAMPD database, more
recent emissions data indicate reduced
NOX emissions and improved control
efficiency at this facility. NOX emissions
from the Monroe facility declined by
45% between 2014 and 2021, even
though heat input declined by only 5%
over the same period.6 Because heat
4 https://www.epa.gov/air-emissions-inventories/
2014-national-emissions-inventory-nei-data.
5 https://campd.epa.gov/.
6 In 2014, heat input was 157,824,072 Metric
Million British Thermal Units (MMBtu) and NOX
emissions were 8,296 tons. In 2021, heat input was
149,865,102 MMBtu and NOX emissions were 4,544
tons.
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input corresponds to power generation,
these data show that the significant
decrease in NOX emissions was not due
to significantly decreased operation of
the facility. Rather, the decrease in NOX
emissions is attributable to increased
efficacy of pollution control equipment
that was installed and operated to
reduce NOX emissions. Specifically,
Monroe power plant has Selective
Catalytic Reduction (SCR) NOX controls
on all four units. The most recent
installation of SCR was in November of
2014, and therefore would have been
minimally represented in the 2014
emissions data. As discussed in more
detail further below, these significant
reductions in NOX emissions from
Electric Generating Units (EGUs) such
as the Monroe facility can be attributed
to permanent and enforceable measures
such as the Cross-State Air Pollution
Rule (CSAPR), which is a Federal rule
that established emissions budgets
designed to incentivize the installation
and operation of emissions controls.
The commenters also raise concerns
that implementation of Moderate area
requirements could be delayed by a
violation of the 2015 ozone NAAQS
subsequent to redesignation. The
commenters speculate that under this
scenario EPA would redesignate the
area to nonattainment in 2023 and set a
new attainment date for three years
later, which would be 2026. As
discussed below, under the CAA, a
violation of the NAAQS after
redesignation to attainment does not
trigger an automatic redesignation to
nonattainment. Rather, as discussed
above, the initial required action under
such circumstances would be the State’s
implementation of the contingency
provisions in a State’s approved
maintenance plan for the relevant
NAAQS, and Michigan’s maintenance
plan here would require the State to
implement the contingency provisions
more quickly than the three-year
timeline identified by the commenters.
The redesignation of an area to
nonattainment under section 107(d)(3)
is discretionary, and could take
significantly longer whether initiated at
the request of the State or by EPA itself.
C. Environmental Justice Concerns
Comment: The commenters state that
EPA must consider environmental
justice in this action, as much of the
nonattainment area contains already
overburdened communities facing
disproportionate environmental
impacts. The commenters reference
various rates of asthma incidence across
demographic or geographic groups,
including asthma rates in Detroit that
are higher than rates in the rest of
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Michigan, and rates of asthma
hospitalizations within both Wayne and
Washtenaw counties that are higher for
Black children relative to white
children. The commenters also raise
concerns that ‘‘the asthma burden in
Detroit appears to be worsening’’ and
reference statistics showing that asthma
rates for adults in Detroit increased from
15.5% in 2016 to 16.2% in 2021. In
support of their comments, the
commenters reference a peer-reviewed
study from 2009 associating ozone
exposure with health effects on adults
with asthma in Atlanta. Additionally,
the commenters contend that EPA has
not followed the portion of Executive
Order 12898 that calls for ‘‘meaningful
involvement’’ from impacted
communities beyond the minimum
requirements for a rulemaking. The
commenters further contend that EPA
‘‘must also consider Title VI of the Civil
Rights Act in evaluating the
disproportionate consequences of
prematurely approving’’ the
redesignation request. Commenters cite
40 CFR 7.35(b) to state that EGLE cannot
use ‘‘criteria or methods of
administering its program which have
the effect of subjecting individuals to
discrimination because of their race,
color, [or] national origin’’. Commenters
then state that ‘‘[g]iven the links
between ozone pollution and asthma as
well as the racial disparities regarding
asthma burdens in Michigan, there is
significant risk of EPA’s decision
violating Title VI’s prohibition’’ against
administering programs in a manner
that has a discriminatory effect.
Commenters end this portion of the
comments by stating, ‘‘It’s unclear how,
if at all, EGLE or EPA accounted for the
Title VI requirements and ensured
compliance in regards to this proposal.’’
Response: EPA is committed to the
meaningful involvement and fair
treatment of vulnerable populations
disproportionately affected by pollution.
EPA does not agree with all of the
commenters’ characterizations in this
letter. EPA has considered both
environmental justice and title VI of the
Civil Rights Act in the context of this
action, and an overview of EPA’s
considerations of both are described
below. Further, EPA has complied with
public notice and comment
requirements for this action.
With regard to EPA’s consideration of
environmental justice, EPA is aware of
the demographic data for the Detroit
nonattainment area that is the subject of
this final action. EPA acknowledges that
the Detroit area includes communities
that are pollution-burdened and
underserved. As described above, EPA
considered this information as it
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pertains to actions being taken in this
action, and further discussion on this
consideration is below in this response.
Consistent with regulatory obligations
associated with this action, EPA held a
public notice and comment period for
this action. In addition, EPA conducted
related outreach with Detroit
community members, advocacy groups,
and local government officials,
regarding air quality issues that have
been identified as priorities by these
stakeholders. In a meeting EPA held
with representatives from the City of
Detroit, Michigan Environmental
Council, GLELC, Southwest Detroit
Environmental Vision, and the Ecology
Center regarding a separate regulatory
action, following a presentation by EPA
and a roundtable discussion with these
stakeholders, EPA solicited opinions
from these stakeholders regarding topics
for future meetings.7 EPA suggested
three topics: permitting, enforcement
and inspections, and ground-level
ozone, which we explained included
our proposed redesignation. Of those
stakeholders who shared an opinion, all
voiced interest in topics other than
ozone, and no stakeholders indicated an
interest in future engagement on ozone.
Through community engagement, EPA
took steps to understand different levels
of public interest for different
rulemakings that were impacting the
Detroit, MI area on more than one topic
around the same time (which was in
addition to public notice and comment
requirements).
In addition to communicating directly
with stakeholders, EPA went beyond the
obligations of notice-and-comment
rulemaking by issuing a press release on
the day the proposed redesignation was
published in the Federal Register.8 The
press release was picked up by The
Detroit News, one of the area’s two
major newspapers.9 In its article, The
Detroit News noted that EPA would be
accepting public comments on the
proposed redesignation. Additionally,
on April 4, 2022, EPA extended the
comment period on the proposed
redesignation by 14 days, in response to
a request from Sierra Club for additional
time to ‘‘fully review the basis for EPA’s
proposal and confer with local partners’’
7 See Appendix A to May 11, 2023, memorandum
entitled ‘‘Memorandum to the Docket: Technical
Support Document for the Detroit Redesignation to
Attainment for the 2015 Ozone National Ambient
Air Quality Standard’’ (hereafter referred to as May
11, 2023, TSD).
8 https://www.epa.gov/newsreleases/epa-andmichigan-propose-detroit-now-meets-federal-airquality-standard-ozone.
9 https://www.detroitnews.com/story/news/
environment/2022/03/14/pollution-reductionprompts-epa-improve-metro-detroits-air-qualityrating/7041856001.
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given Sierra Club’s suggestion that the
proposed action was a ‘‘consequential
decision impacting environmental
justice communities.’’
With regard to the comments
concerning the demographics of the
community and asthma burdens in the
area, EPA considered a variety of
relevant factors in its determination to
propose approval of the Detroit area
redesignation and maintenance plan.
Importantly, the comment letter
indicates that EPA is now
‘‘prematurely’’ approving the request for
redesignation. As is explained
throughout this action, this action is not
premature. Rather, it is consistent with
the applicable requirements of the CAA
for an area to qualify for a redesignation.
This redesignation request recognizes
that the area has achieved a national
ambient air quality standard and alters
the designation of the area; however,
applicable emission reduction measures
remain in effect, as do contingency
provisions in the maintenance plan now
being approved that will be triggered if
the area fails to continue to attain the
standards. Additional information is
provided below in this response to
comment.
Further, under section 109 of the
CAA, EPA sets primary, or health-based,
NAAQS for all criteria pollutants to
provide requisite protection of public
health, including the health of at-risk
populations, with an adequate margin of
safety. It establishes secondary, or
welfare-based, standards to provide
requisite protection of public welfare
from any known or anticipated adverse
effects of the criteria pollutant in
ambient air. In EPA’s October 26, 2015,
rulemaking strengthening the ozone
NAAQS to the level of 0.070 ppm, we
provided a detailed rationale for the
Administrator’s determination that the
2015 ozone NAAQS would be protective
of public health (80 FR 65292). This
rationale included explicit
consideration of protection for people,
including children, with asthma.
EPA considered commenters’
concerns regarding asthma rates and
considered that information in light of
the action being finalized. As we
explained in the October 26, 2015,
rulemaking, asthma is a multi-etiologic
disease, and air pollutants, including
ozone, represent only one potential
factor that may trigger an asthma
exacerbation.
Importantly, as is explained
throughout this action, if, following
redesignation, there are increases in
ozone that result in a violation of the
2015 ozone standard, the contingency
provisions of the maintenance plan
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32599
would trigger additional actions by
EGLE.
In support of their comments, the
commenters reference a peer-reviewed
study from 2009 associating ozone
exposure with health effects on adults
with asthma in Atlanta.
As we noted in a Technical Support
Document in the docket folder for the
June 4, 2018, rulemaking designating
the Detroit area as nonattainment for the
2015 ozone standard, the 2014–2016
design value for the area was 0.073 ppm
(83 FR 25776). As noted above, the
2019–2021 design value is 0.070 ppm.
The commenters do not clarify how the
ozone levels in the area might be a
primary cause or primary contributor to
the increase in asthma rates they cite as
occurring over that same period
(between 2016 and 2021).
As discussed above, the entire Detroit
area is attaining the 2015 ozone
NAAQS, which EPA established to
provide requisite protection of public
health, including the health of at-risk
populations, with an adequate margin of
safety.
EPA also reviewed current and
upcoming emission reduction measures
that are anticipated to further mitigate
pollution issues in the Detroit area.
Existing Federal mobile source and
point source emission reduction
programs will result in ongoing NOX
and VOC emissions reductions in the
Detroit area. For example, NOX cap and
trade programs such as CSAPR continue
to achieve emissions reductions that are
protective of human health regardless of
whether EPA redesignates downwind
areas for any NAAQS. In addition, the
Federal Good Neighbor Plan for the
2015 ozone NAAQS is projected to
achieve emissions reductions that will
provide health benefits to populations
living in proximity to covered facilities
beginning in the 2023 ozone season.
Further, Michigan has submitted a
maintenance plan that projects
continuing reductions in NOX and VOC
emissions through 2035 from the point,
nonpoint, on-road, and nonroad
categories, based on outputs from EPA’s
MOVES3 and 2016v2 modeling
platforms.
In addition, EPA is now approving the
contingency provisions in Michigan’s
maintenance plan for the Detroit area.
As noted elsewhere in this rulemaking
if the Detroit area were to violate the
2015 ozone NAAQS after redesignation,
then Michigan would be required to
correct the violation by expeditiously
implementing the contingency
provisions in its maintenance plan. EPA
reviewed the contingency provisions
submitted by EGLE, and found that
many of these actions would benefit
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pollution-burdened and underserved
communities that may be located near
heavily industrial areas (i.e., fuel and
diesel retrofit programs, which may
have significant impacts around truck
corridors and rail yards).
Turning to the issues raised regarding
title VI of the Civil Rights Act of 1964
(title VI), EPA does not agree with
commenters’ characterization of
potential concerns raised under title VI.
Title VI prohibits discrimination by
recipients of EPA financial assistance on
the basis of race, color, or national
origin. Under EPA’s nondiscrimination
regulations, which implement title VI
and other civil rights laws,10 recipients
of EPA financial assistance are
prohibited from taking actions in their
programs or activities that are
intentionally discriminatory and/or
have an unjustified disparate impact.11
Because EPA is not a recipient of
Federal financial assistance, title VI
does not apply to EPA itself. EPA carries
out its mandate to ensure that recipients
of EPA financial assistance comply with
their nondiscrimination obligations by
investigating administrative complaints
filed with EPA alleging discrimination
prohibited by title VI and the other civil
rights laws; 12 initiating affirmative
compliance reviews; 13 and providing
technical assistance to recipients to
assist them in meeting their title VI
obligations. Importantly, compliance
with the CAA does not constitute
compliance with title VI.
As part of this redesignation, EPA is
approving the maintenance plan for the
area, including contingency provisions,
which will be incorporated into the SIP.
Title VI does apply to EGLE as a
recipient of Federal financial assistance.
In the context of SIP actions, EPA has
evaluated issues similar to the title VI
comments through CAA section
110(a)(2)(E)(i). See, e.g., 77 FR 65294
(October 26, 2012); 87 FR 60494
(October 5, 2022). EPA has previously
acknowledged that it has not issued
national guidance or regulations
concerning implementation of section
110(a)(2)(E) as it pertains to
consideration of title VI and disparate
impacts on the basis of race, color, or
national origin in the context of the SIP
program. 87 FR at 60530. Such guidance
is forthcoming and will address CAA
section 110(a)(2)(E)’s necessary
assurance requirements as they relate to
title VI.
In the context of a SIP action,
however, section 110(a)(2)(E) requires
10 40
CFR part 7 and part 5.
CFR 7.30 and 7.35.
12 40 CFR 7.120.
13 40 CFR 7.115.
11 40
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that a State provide ‘‘necessary
assurances’’ that the SIP submission at
issue would not result in violations of
any State or Federal law. Thus, as the
commenters suggest, a relevant inquiry
for EPA in this rulemaking is whether
the air agency has provided adequate
necessary assurances that
implementation of the content of the SIP
submission at issue is not prohibited by
title VI (i.e., implementation of the SIP
would not result in an unjustified
adverse disparate impact on the basis of
race, color, or national origin). See, e.g.,
CAA section 110(a)(2)(E)(i).
This redesignation action, at its core,
recognizes that an area is meeting the
NAAQS and has all the required CAA
measures in place, including the
required maintenance plan with
contingency provisions. The
contingency provisions of the
maintenance plan would require
additional control measures in the event
that a future design value for the area
exceeds the level of the ozone standard,
or if the fourth-highest monitored value,
averaged over two years, is 0.071 ppm
or higher.14 In this action, the plan
being finalized includes required
contingency provisions (as was
described above) as well as additional
ozone related measures already
approved into the SIP due to prior
ozone standards (also described earlier
in this action).
For all these reasons, there is no
information to support a conclusion that
EGLE’s implementation of this SIP
submittal, including the maintenance
plan now being approved (including
contingency provisions), would result in
14 The list of potential contingency provisions is
provided in EGLE’s submittal dated January 3,
2022. They include: Adoption of or updating of
VOC or NOX Reasonable Available Control
Technology (RACT) rules for existing sources
covered by USEPA Control Technique Guidelines,
Alternative Control Guidelines, or other appropriate
guidance issued after the 1990 CAA, such as VOC
RACT for increased methane leak monitoring and
repair at oil and gas compressor stations,
automobile and light-duty truck assembly coatings,
miscellaneous metal and plastic parts coatings,
paper, film, and foil coatings, miscellaneous
industrial adhesives, or industrial cleaning
solvents, or NOX RACT for stationary internal
combustion sources, utility boilers, process heaters,
iron and steel mills, or glass manufacturing;
Applying VOC RACT on existing smaller sources;
Implementing alternative fuel and diesel retrofit
programs for fleet vehicle Operations; Requiring
VOC or NOX control on new minor sources (less
than 100 tons per year); Increasing the VOC or NOX
emission offsets for new and modified major
sources; Reducing idling programs; Trip reduction
programs; Traffic flow and transit improvements;
Working with the Michigan Department of
Licensing and Regulatory Affairs to encourage
natural gas utilities to increase turnover of legacy
distribution pipelines; Stationary engine controls to
reduce formaldehyde and NOX Emissions; Phase 2
AIM rules; Phase 5 Consumer Products rules; and
additional measures as identified by EGLE.
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an unjustified disparate impact or is
otherwise prohibited by title VI of the
Civil Rights Act. Thus, EPA is not
requiring any further necessary
assurances at this time for purposes of
compliance with section 110(a)(2)(E)(i).
D. Trend in Design Values
Comment: The commenters contend
that EPA does not have sufficient data
to determine that the 2021 emission
reductions were part of a downward
trend, as the fourth highest recorded
concentration increased at all monitor
locations except St. Clair County
between the years of 2019 and 2020. As
the 2018–2020 design values show
nonattainment at half of the monitor
locations in the area, the commenters
contend that there is no reason to
believe that the 2019–2021 design
values will be representative of future
ozone concentrations.
Response: Attainment of the 2015
ozone NAAQS, like the 1997 ozone
NAAQS and 2008 ozone NAAQS before
it, is measured by averaging the annual
fourth-highest daily maximum 8-hour
average concentrations over a 3-year
period. In our rulemaking promulgating
the 1997 ozone NAAQS, EPA noted the
‘‘lack of year-to-year stability’’ inherent
to the prior 1979 ozone NAAQS, and
determined that a form including a 3year average would ‘‘provide some
insulation from the impacts of extreme
meteorological events that are
conducive to ozone formation.’’ (62 FR
38856, July 18, 1997). Similarly, when
EPA revised the NAAQS in 2008, we
recognized ‘‘that it is important to have
a form that is stable and insulated from
the impacts of extreme meteorological
events that are conducive to ozone
formation. Such instability can have the
effect of reducing public health
protection, because frequent shifting in
and out of attainment due of
meteorological conditions can disrupt
an area’s ongoing implementation plans
and associated control programs.
Providing more stability is one of the
reasons that EPA moved to a
concentration-based form in 1997.’’ (73
FR 16435, March 27, 2008). In our
October 26, 2015, rulemaking which
retained the form of the 1997 ozone
NAAQS and 2008 ozone NAAQS but
strengthened the NAAQS to the level of
0.070 ppm, EPA found that the threeyear average ‘‘provides an appropriate
balance between public health
protection and a stable target for
implementing programs to improve air
quality.’’ We therefore observe that as a
general matter, EPA designed the form
of the 2015 ozone NAAQS to
accommodate some year-to-year
variation in ozone concentrations. The
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design value is intended to be the
simple average of the annual fourthhighest daily maximum 8-hour average
concentrations over the 3-year period,
with no special consideration given to
any of those three years. When we
structured the form of the 2015 ozone
NAAQS, EPA created no requirement
that for a monitor or an area to attain the
standard, a downward trend must be
observed within the 3-year period.
Over a longer period, however, EPA
has observed a clear downward trend in
ozone design values in the Detroit area.
In evaluating the commenters’ claims
regarding trends in ozone
concentrations, EPA reviewed past data
from all monitors in the Detroit area.
These data cover the period ending with
the most recent design value period,
which is 2020–2022, and starting with
the design value period that was the
basis of our nonattainment designation
for the 1997 ozone NAAQS, which was
2001–2003 (69 FR 56697, September 22,
32601
2004). The historic ozone design values
for the seven-county Detroit area are
summarized in Table 3. For each 3-year
period, the design value is determined
by the monitor or monitors with the
highest 3-year averaged concentration.
For all 3-year periods, the highest
design value was observed at one or
more of the following five monitors:
Port Huron, East 7 Mile, New Haven,
Allen Park, or Warren.
TABLE 3—3-YEAR AVERAGE OF THE FOURTH-HIGHEST DAILY MAXIMUM 8-HOUR OZONE CONCENTRATIONS (OZONE
DESIGN VALUES) FOR THE DETROIT AREA
Average fourth-highest
daily maximum
8-hour ozone concentration
(ppm)
3-Year period
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2001–2003
2002–2004
2003–2005
2004–2006
2005–2007
2006–2008
2007–2009
2008–2010
2009–2011
2010–2012
2011–2013
2012–2014
2013–2015
2014–2016
2015–2017
2016–2018
2017–2019
2018–2020
2019–2021
2020–2022
...................................................................................................................................................................
...................................................................................................................................................................
...................................................................................................................................................................
...................................................................................................................................................................
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As shown in Table 3, ozone design
values in the Detroit area have declined
significantly from 0.097 ppm in 2001–
2003 to 0.070 ppm in 2019–2021, and
2020–2022. On this point, we agree with
the commenters’ statement that ‘‘there is
no doubt that, in general, ozone
precursor emissions have decreased
over the past two decades as noted by
the studies and that, as a result, ozone
concentrations have decreased.’’ This
decrease is clear across the overall time
period presented in Table 3.
However, as also shown in Table 3,
EPA has sometimes observed an
increase in ozone design values, such as
the increase from 0.073 ppm in 2015–
2017 to 0.074 ppm in 2016–2018. In
EPA’s view, fluctuation in design values
over a shorter period does not detract
from the overall trend in air quality
improvements over a longer period. On
three occasions, at the 2004–2006,
2008–2010, and 2013–2015 3-year
periods, the design value reached a new
low, before experiencing an increase in
the subsequent 3-year period. However,
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21:11 May 18, 2023
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after each of these occasions, the design
value returned to its low point within
several years and did not exceed that
low point for a second time. This is
consistent with national decreasing
trends in ozone concentrations which
face some year-to-year variability in
measured concentrations.15 Interannual
variability is expected even when there
are longer-term downward trends driven
by emissions reductions (Strode et al.,
2015; 16 Simon et al., 2015 17). This
suggests that, despite variability within
a 3-year period and occasionally across
several 3-year periods, historic
15 https://www.epa.gov/air-trends/trends-ozoneadjusted-weather-conditions.
16 Strode, S.A., Rodriguez, J.M., Logan, J.A.,
Cooper, O.R., Witte, J.C., Lamsal, L.N., Damon, M.,
Van Aartsen, B., Steenrod, S.D., and Strahan, S.E.:
Trends and variability in surface ozone over the
United States, J. Geophys. Res.-Atmos., 120, 9020–
9042, https://doi.org/10.1002/2014JD022784, 2015.
17 Heather Simon, Adam Reff, Benjamin Wells, Jia
Xing, and Neil Frank, Ozone Trends Across the
United States over a Period of Decreasing NOX and
VOC Emissions, Environmental Science &
Technology, 2015 49(1), 186–195.
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0.097
0.092
0.090
0.082
0.086
0.082
0.080
0.075
0.078
0.081
0.077
0.074
0.072
0.073
0.073
0.074
0.072
0.071
0.070
0.070
permanent and enforceable emissions
reductions have been effective in
reducing ozone concentrations in the
area, and these reduced ozone
concentrations have become more
durable as the associated control
programs have progressed through
implementation. As we discuss below, if
a future design value in the Detroit area
exceeds the level of the 2015 ozone
NAAQS, then implementation of
Michigan’s contingency provisions,
combined with the ongoing
implementation of State and Federal
control measures documented in EGLE’s
maintenance plan, would be the
appropriate remedy.
E. Timeline
Comment: The commenters suggest
that EPA should wait until the end of
the 2022 ozone season to act upon the
redesignation request.
Response: EPA is finalizing this
action after considering the additional
year of monitoring data from 2022. In
our separate rulemaking finalizing a
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clean data determination for the Detroit
area, EPA has found that the area
continued to attain the standard for the
2020–2022 period, which is one year
beyond the 2019–2021 period which is
the basis of the State’s redesignation
request.
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F. Meteorology
Comment: The commenters stated
that EPA did not fully consider
unusually favorable meteorological
conditions as the cause for decreased
ozone concentrations, since EPA relies
on temperature studies done by EGLE
and the Lake Michigan Air Directors
Consortium (LADCO) that consider
long-term ozone concentrations rather
than concentrations during the design
value years. Additionally, the
commenters contend that although
temperature is a large factor in the
creation of ozone, there are other factors
that should be considered. While factors
besides temperature were considered for
the LADCO study, they were only
considered through 2019 and did not
include 2020 or 2021, and the
commenters stated that the higher 2021
humidity levels could have contributed
to decreased ozone concentrations.
Lastly, the commenters also claim that
EPA did not account for ‘‘how lower
than average temperatures and fewer
days above 80 degrees Fahrenheit have
impacted ozone concentrations’’ and
that ‘‘2019 appears to have been a year
with exceptionally few high
temperature days. In that year, there
were only 76 days with a maximum
temperature equal to or above 80
degrees Fahrenheit, which is the lowest
total since 2009.’’ Broadly, the
commenters question if EGLE and EPA
have appropriately considered whether
temperature and other meteorological
conditions, as opposed to emissions
reductions, were the cause of lower
ozone concentrations.
Response: The analyses of long-term
meteorological trends including both
Michigan’s meteorological analysis and
LADCO’s classification and regression
tree (CART) analysis helps to illustrate
the cause for decreasing ozone
concentrations over time in the Detroit
area. Additionally, EPA’s Trends in
Ozone Adjusted for Weather Conditions
show that while the Detroit area
benefited from unconducive
meteorology in 2019, the weather
adjusted ozone trends show that
meteorological conditions were more
conducive than average in 2020. Thus,
the area did not experience three
consecutive years of unconducive
meteorology in 2019–2021, therefore the
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meteorology for the 3-year period as a
whole was not ‘‘unusual’’.18
Michigan’s January 3, 2022, submittal
presents LADCO’s CART analysis for
years 2005 through 2019, which
evaluates 21 separate meteorological
factors that can influence ozone
formation in Detroit. This analysis ranks
each variable by its relative importance.
The most important factor in ozone
formation in Detroit is Average PM
Temperature, which is assigned a
relative importance level of 1.000.
Closely following Average PM
Temperature are Max Daily
Temperature, Max Apparent
Temperature, and Average AM
Temperature which are all assigned
relatively high variable importance to
ozone formation. The last of these four,
Average AM Temperature, has a relative
importance level of 0.9273. After this
variable, there is a steep drop-off before
arriving at the importance of the fifth
variable, which is Average Wind South
Vector with a relative importance level
of 0.5763. In other words, the top four
variables all relate to temperature, and
these temperature variables are much
more important than any other variable.
As shown in LADCO’s CART analysis
for 2005 through 2019, temperature is
the peak driving meteorological factor
determining ozone formation in the
Detroit area. Additionally, EPA’s
weather adjusted ozone trends, which
go through 2021, also have daily max
temperature as the most important
variable at every site in the Detroit area.
The next five are PM wind direction,
AM wind speed, mid-day relative
humidity and 24-hour transport
direction, in varying orders of
importance for individual ozone sites.
In evaluating the commenters’
concerns that LADCO’s CART analysis
included data only through 2019, EPA
reviewed a CART analysis which
LADCO prepared more recently, and
which analyzes data for 2005 through
2020. Inclusion of the more recent year
does not support commenters’ broader
claims regarding meteorological impacts
during the design value period. Rather,
inclusion of the more recent year only
reinforces the finding that variables
relating to temperature are more
important than any other meteorological
variable in determining ozone formation
in the Detroit area. In the newer
analysis, LADCO evaluated a new
variable, Average Apparent
Temperature, which is grouped with the
other four variables relating to
temperature as the most important
variables affecting ozone formation in
18 https://www.epa.gov/air-trends/trends-ozoneadjusted-weather-conditions.
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Detroit, ahead of the variable for
Average Wind South Vector and other
less-important variables relating to
factors such as precipitation and
humidity.
Michigan’s analysis for the years
2000–2021 considered temperature
during the ozone season and its
relationship with ozone concentrations.
The State found that ozone
concentrations declined over this
period, even though temperatures
increased over the same period. It is
important to keep in mind that high
ozone cannot form in the absence of
precursor emissions. Michigan’s finding
is consistent with LADCO’s CART
analysis for the 2005–2019 period in the
Detroit area, which shows that when the
influence of meteorological variability is
largely removed, ozone concentrations
declined regardless, indicating that the
downward trend in ozone levels is
attributable to reductions in precursor
emissions.
However, the commenters raise the
concern that the State did not consider
a wider breadth of meteorological
factors besides temperature in 2020 and
2021. The commenters suggest that
there may have been unanalyzed
unusual meteorological conditions that
might have affected ozone
concentrations. The commenters state
that there may have been higher levels
of humidity in Detroit during the ozone
season which may have depressed
ozone formation in the area. To support
this claim, the commenters present a
graph of Hourly Humidity Comfort
Levels Categorized by Dew Point for
summers 2020 and 2021 in Detroit.19
However, a presentation of dew point
data does not illustrate anything useful
about humidity levels, because dew
point values are a function not only of
humidity data but also of temperature
data. In other words, a high dew point
value may be caused by high
temperatures, even if relative humidity
is held constant. The commenters also
fail to provide an analysis of humidity
levels for previous years to back up their
claim that humidity levels in 2020 and
2021 were unusual relative to historical
levels. Regardless, meteorologically
adjusted trends always show negative
relationships between both relative
humidity (RH) and ozone and dewpoint
and ozone (meaning higher RH and
dewpoint are associated with lower
ozone), while temperature and ozone
always have a positive relationship
(higher temperature is associated with
19 In the narrative section of their comment letter,
the commenters include the incorrect chart for
summer 2021. However, in a footnote, the
commenters include a URL to the correct chart.
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higher ozone). As explained above,
other meteorological factors had a
greater influence on Detroit ozone as
evidenced by Michigan’s, LADCO’s and
EPA’s analyses.
EPA does not agree that we failed to
provide significant evidence that the
improvement in air quality is not
attributed to unusual meteorological
circumstances. EPA relied on
Michigan’s analysis and the LADCO
CART analysis to conclude that air
quality improvement has been a
constant trend when meteorology is
controlled for variance. The commenters
have not presented any compelling
evidence that the 2019–2021 design
value period had unusual meteorology.
Additionally, EPA’s Trends in Ozone
Adjusted for Weather Conditions
corroborates these analyses.
As exhibited in LADCO’s CART
analysis, Detroit has seen decreasing
ozone concentrations even when
controlling for meteorological variance
between 2005–2019. As presented in
Michigan’s analysis, ozone
concentrations have been decreasing
between 2000–2021 despite increasing
temperatures in Detroit. This helps us
conclude that the long-term trend of
decreasing ozone concentrations can be
attributed to decreases in ozone
precursors and not because of
meteorological factors. Additionally,
EPA’s Trends in Ozone Adjusted for
Weather Conditions corroborates these
analyses. EPA agrees with Michigan’s
conclusion that the air quality
improvement in the Detroit area was
caused by reductions in ozone
precursors and not unusually favorable
meteorological conditions.
G. Economic Conditions
Comment: The commenters contend
that EPA’s determination that improved
air quality during 2019–2021 was
caused by permanent and enforceable
emissions reductions program has no
basis because EPA did not fully evaluate
whether decreased economic activity
from the COVID–19 pandemic caused
improved air quality in the Detroit area.
The commenters suggest that effects of
the COVID–19 pandemic on power
plant emissions and automobile travel
may be the likely cause of the
reductions rather than the cited
enforceable reduction measures.
Specifically, the commenters raise
concerns that reductions in vehicle
miles traveled and emissions of ozone
precursor emissions occurring in 2020
and 2021 were likely caused by the
COVID–19 pandemic. The commenters
conclude that EPA failed to consider an
important aspect of the problem in not
fully considering the impact of the
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pandemic in EPA’s proposed
rulemaking to redesignate the Detroit
area to attainment of the 2015 ozone
NAAQS.
Response: EPA recognizes the
difficulties in assessing the impacts of
the COVID–19 pandemic on ozone
precursor emissions and ozone design
values and the economic disparities
from the COVID–19 pandemic, but we
do not agree that the Detroit area’s
attainment is due to a temporary
economic downturn associated with the
COVID–19 pandemic. As discussed in
the March 14, 2022, proposed
rulemaking, we think that EGLE’s
submission and the rationale provided
in EPA’s proposal establishes that the
area’s attainment is due to the cited
permanent and enforceable reductions
and not temporary adverse economic
conditions.
In their January 3, 2022, submittal,
EGLE evaluated whether the
improvement in air quality was caused
by temporary adverse economic
conditions, especially the economic
conditions associated with the COVID–
19 pandemic which first impacted
Michigan in 2020. EGLE charted point
source VOC and NOX emissions in the
Detroit area from 2012 to 2020. These
two charts show the overall downward
trend in point source emissions from
2012 to 2020. EGLE also evaluated both
employment levels and VMT. While
employment levels in the Detroit area
were affected by COVID–19 and saw a
27 percent decrease in employment
from March 2020 to April 2020,
employment returned to 85 percent of
March 2020 levels by June 2020,
according to Bureau of Labor and
Statistics (BLS) Quarterly Census of
Employment and Wages.20 Employment
levels continued to increase through
2022, and as of March 2021 and March
2022, employment levels in the Detroit
area were 93 and 99 percent of the
employment in February 2020, before
the onset of the COVID–19 pandemic,
respectively. As noted by EGLE in their
submission, the analysis performed by
the Southeast Michigan Council of
Governments (SEMCOG) indicated a
reduction of less than 5 percent of VMT
in 2020 based on their travel demand
forecasting model.
Nevertheless, in response to this
comment, EPA has performed
additional analyses that further support
our determination.
The commenters highlight nationally
decreased power plant emissions during
the COVID–19 pandemic recession
beginning in 2020 and cite point source
reductions that occurred from 2019 to
2020. EPA therefore analyzed total heat
input from EGUs across the State of
Michigan from 2018 to 2022 to
investigate whether Detroit’s attainment
of the NAAQS during the 2020 ozone
season could be attributable to
economic effects from the COVID–19
pandemic.21 Of the five years of data
examined, our analysis found that April
2020 had the single lowest total
monthly heat input for EGUs located in
the seven Southeast Michigan counties
in the Detroit area. This monthly value
is correlated with the strongest
economic effects that could be
attributable to lockdown orders,
declining employment figures, or
decreases in vehicle miles traveled, as
discussed later in this section. However,
we note that the total monthly heat
input at these power plants began
rebounding in May 2020 and increased
to an annual peak in July 2020. This
pattern of monthly total heat inputs
increasing from April onwards and
peaking in July or August is consistent
with annual trends over the five-year
period for both EGUs in the sevencounty Detroit area and across the State
as a whole. The ozone monitoring
season runs from March 1 to September
30 in Michigan, but the meteorology
most conductive to conditions that
could result in exceedances of the
NAAQS typically occurs in summer
months of May through July. EPA’s
analysis shows that while there was a
pronounced effect on electricity
production at EGU facilities in the
Detroit area in April 2020, emissions
activity from these sources increased in
subsequent months following the same
monthly patterns that were observed in
2018 and 2019. Moreover, we note
similar annual patterns of EGU activity
peaking in July or August continued
again in 2021 and 2022. Therefore, EPA
does not agree that economic effects of
the COVID–19 pandemic on power
plant emissions are responsible for the
Detroit area’s attainment of the NAAQS
in 2020 or any year thereafter rather
than the permanent and enforceable
emissions reductions described in the
notice of proposed redesignation.
In response to the commenters
concerns that 2021 emissions were still
impacted by the pandemic, EPA
additionally examined emissions from
EGUs in Michigan subject to the CrossState Air Pollution Rule NOX Annual
Program, and found that there were
similar annual NOX emissions in 2021
relative to 2019, 31,743 tons per year
(tpy) versus 31,123 tpy, respectively.22
21 See
20 See
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22 See
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EPA further evaluated coal consumption
for electric power, which the
commenters note was still lower in 2021
as compared to 2019 likely due to the
pandemic. Calculations show that 2021
consumption was 97 percent of the level
of coal consumption in 2019 in
Michigan.23 In May 2021, one of the
largest coal-fired EGU facilities in the
area, DTE River Rouge, permanently
retired. The shutdown of this facility
was estimated by EGLE to achieve
annual reductions of 2,716 tons of NOX.
EPA also analyzed the pandemic’s
impact on traffic in response to the
commenters’ assertion that automobile
travel ‘‘plunged’’ in 2020 as a result of
the pandemic, using data from
StreetLight,24 which is an on-demand
mobility analytics platform that uses
data from mobile devices. We found that
traffic did decrease during the
pandemic, but largely returned to prepandemic levels by the time of year that
meteorological conditions are most
conducive to ozone formation. As
shown in the StreetLight data, the
seven-county Detroit area experienced a
drop in VMT during the period of the
stay-at-home order, beginning March 23
and ending June 1. However, beginning
in June 2020, VMT was comparable to
VMT levels before the start of the
pandemic.25 This is significant because
EPA has found that in the upper
Midwest, the majority of ozone
exceedances occur in late May though
late July.26 In addition, border crossing
information, provided by SEMCOG,
shows that heavy duty truck VMT
remained near pre-pandemic levels in
2020. Given the many mobile source
reduction measures in place in
Michigan, EPA does not conclude that
the reductions achieved are based on a
brief period of decreased VMT in 2020
due to the COVID–19 pandemic.
Another important aspect of the
economic changes that occurred during
the COVID–19 pandemic in the Detroit
23 See Energy Information Administration, Coal
Data Browser (Data Set: Total Consumption, Electric
Power), https://www.eia.gov/coal/data/browser/.
24 See https://www.streetlightdata.com/. EPA
would not rely on StreetLight for the purpose of
generating inventories, such as the inventories
submitted by EGLE. However, this data source has
a reasonable accuracy that is sufficient for the
purpose of assessing claims made by the
commenters regarding temporal changes in VMT
during the COVID–19 pandemic. EPA believes this
source of data is usable for this analysis in part
because StreetLight data has very good performance
when compared against traditional manual traffic
counts, with an R∧2 value of 0.9782. StreetLight has
been utilized by many departments of
transportation at the State and Federal level. See
https://www.streetlightdata.com/transportationplanning-case-studies/.
25 See Appendix D to May 11, 2023, TSD.
26 See Appendix E to May 11, 2023, TSD.
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area, which the commenters do not
address, is that manufacturing processes
in the Detroit area did not stop during
the pandemic, but rather shifted
towards new processes related to the
pandemic. For example, the Oakland
County Board of Commissioners
appropriated over 300,000 dollars to six
facilities to begin production on
personal protection equipment (PPE)
such as face masks and ventilator
equipment.27 Ford Motor Company and
General Motors Corporation (GM)
worked to reallocate their production to
ventilators, which began training by
April 2020. GM also began producing
face masks by March 27, 2020 and
worked with a local automation
company to create an assembly line
capable of producing 50,000 masks a
day.28 Several nonprofit groups worked
to assist manufacturing facilities in
shifting to production of surgical masks
and gowns, such as the Industrial
Sewing and Innovation Center (ISAIC),
working with the City of Detroit,
Michigan Economic Development
Corporation, and others to establish
efficient and automated production
methods, noting that this effort was ‘‘a
way to keep people employed, and at
the same time protecting people that are
working on the front lines.’’ 29 Carhartt
worked with ISAIC, and offered one
floor of their Detroit store to the
nonprofit for factory space for this
initiative, which received funding to
produce 1 million surgical masks per
month. These efforts speak to the
rebounding of Detroit’s employment
rates post pandemic and highlight
nonprofit work that drove much of the
initiative to shift production. While the
commenters highlight the highest single
quarterly drop in Gross Domestic
Product (GDP) of 31.4 percent in the
second quarter of 2020, it is important
to note the highest single quarterly
increase in GDP in the third quarter of
2020, of 33.1 percent,30 noted in the
same report by the Congressional
Research Service. Efforts such as those
seen in Detroit have likely aided this
rebound.
EPA does not agree that the Detroit
area’s attainment is due to a temporary
economic downturn associated with the
COVID–19 pandemic, but rather
27 See https://www.clickondetroit.com/news/
local/2020/05/04/oakland-county-fundsmanufacturers-to-switch-production-to-medicalequipment-protective-gear.
28 See https://www.assemblymag.com/articles/
95741-manufacturers-shift-to-ppe-production-tofight-covid-19-pandemic.
29 See https://www.modeldmedia.com/features/
detroit-apparel-manufacturers-coalition.aspx.
30 See Congressional Research Service, Covid-19
and the U.S. Economy, https://crsreports.
congress.gov/product/pdf/R/R46606.
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believes the Federally enforceable
emission reduction measures were the
main driving factor in the area coming
into attainment.
H. Federal Control Programs
Comment: The commenters contend
that EPA did not demonstrate that the
Federal good neighbor rules and mobile
source standards were key elements of
the ozone reductions. The commenters
assert that most of these rules were
implemented and would have had
emissions impacts prior to 2019, and
even prior to 2018, and yet ozone
concentrations increased in 2020 and
most of the monitors in the area
continued to be in nonattainment based
on design values for the years 2018–
2020. The commenters conclude that
these facts undermine EPA’s finding
that the reduced ambient concentrations
in 2019–2021 are in fact attributable to
regulations that went into effect from
2004–2017. Additionally, the
commenters contend that EPA relied on
overall pollution reductions from the
CSAPR Update, which covers areas that
are downwind of the Detroit area. The
commenters point out that EPA did not
determine whether reductions in
emissions specifically causing
nonattainment in Southeast Michigan
will occur, and that, because the CSAPR
Update is a cap-and-trade program,
facilities contributing to Detroit’s ozone
problem could comply with the rule by
purchasing allowances, rather than
reducing emissions. The commenters
claim that ‘‘reliance on these rules is
illogical, incomplete, and fails to satisfy
the requirements for redesignation.’’
Response: Regarding EPA’s mobile
source standards, the commenters have
incorrectly interpreted the timeline by
which emissions reductions are
achieved. The full benefit of these
programs does not occur in the first year
that a rule is effective, or even within
the years that manufacturers must first
begin manufacturing vehicles or engines
in accordance with EPA’s rules. These
mobile source measures have resulted
in, and continue to result in, large
reductions in NOX emissions over time
due to fleet turnover (i.e., the
replacement of older vehicles that
predate the standards with newer
vehicles that meet the standards).
Emissions reductions from these
programs are modeled by EPA’s 2016v2
platform and the MOVES3 mobile
source emission modeling system,
which we discuss below in greater
detail. In our March 14, 2022, proposed
rulemaking, in our discussions of Tier 3
motor vehicle emission standards as
well as rules for heavy-duty diesel
engines, nonroad diesel engines, large
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spark-ignition engines, and marine
diesel engines, we noted that some of
these emission reductions occurred by
the attainment years and additional
emission reductions will occur
throughout the maintenance period, as
older vehicles or engines are replaced
with newer, compliant model years. It is
incorrect that, by pointing out that the
Detroit area did not attain the standard
immediately upon promulgation or
implementation of these rules, the
commenters have demonstrated that it is
‘‘illogical’’ or ‘‘incomplete’’ for EPA to
rely on these rules as permanent and
enforceable emissions reductions as
required by CAA section 107(d)(3)(E).
We also disagree that it was
‘‘illogical,’’ ‘‘incomplete,’’ or otherwise
inappropriate for EPA to point to
emissions reductions resulting from the
Revised CSAPR Update as contributing
to the Detroit area’s attainment. First,
we note that EPA did not only cite the
Revised CSAPR Update; we also pointed
to the historical and/or ongoing Federal
programs such as the Clean Air
Interstate Rule (CAIR), CSAPR, CSAPR
Update, and Revised CSAPR Update, all
of which addressed the interstate
transport requirements of CAA section
110(a)(2)(D) and reduced ozone
precursor emissions in the eastern
United States over the relevant time
period.
First, we note that multiple Federal
Circuit Courts of Appeal have reviewed
similar arguments challenging whether
it is reasonable for EPA to rely upon
regional interstate transport cap-andtrade programs as part of the cause of an
area’s attainment, and those courts have
upheld EPA’s reliance. See Sierra Club
v. EPA, 774 F.3d 383 (7th Cir. 2014);
Sierra Club v. EPA, 793 F.3d 656 (6th
Cir. 2015). Arguments raised in those
cases were remarkably similar to
commenters’ contentions here: ‘‘Sierra
Club criticizes EPA’s reliance on the
NOX SIP Call, because that program is
aimed at reducing pollution in the
region as a whole and permits the
twenty-two affected states to purchase
pollution ‘allowances’ from one another.
Accordingly, Sierra Club believes that
the effects on any one area in particular
are not necessarily permanent and
enforceable.’’ Sierra Club v. EPA, 774
F.3d at 397. The Seventh Circuit noted
that the overall structure of the trading
program ensured a regional reduction in
emissions, and that ‘‘it is reasonable to
rely on the program as one basis, among
many, for concluding that reduced
emissions levels will persist.’’ Id. at 399.
The Sixth Circuit similarly upheld
challenges to EPA’s reliance on
interstate transport trading programs in
a redesignation as one of the causes of
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an area’s attainment. Sierra Club v. EPA,
793 F.3d at 665–68.
While commenters are correct that
sources may comply with the Revised
CSAPR Update by purchasing
allowances rather than reducing
emissions, the Revised CSAPR Update
trading region (which includes
Michigan and is currently comprised of
12 states in the eastern United States) is
subject to an overall reduction in
emissions via the State-level emissions
budgets and assurance levels in that
program. Commenters are not correct
that EPA did not analyze whether
reductions are and were required from
states upwind of Michigan in the
Revised CSAPR Update. While the
Detroit area was not identified as having
receptors in that rule, emission
reductions required of Michigan and
other states included in the Revised
CSAPR Update will still result in air
quality benefits in the Detroit area, due
to the regional nature of ozone and
ozone precursor transport.
Further, the control of ozone season
NOX emissions under the Good
Neighbor Provision of the CAA will be
continued and improved through the
more recent final Good Neighbor Plan
for the 2015 ozone NAAQS, which was
signed on March 15, 2023.31 This rule,
as promulgated, is set to control ozone
season NOX emissions from power
plants through a revised trading
program beginning in 2023 and through
emissions limits on certain other
industrial sources beginning in 2026.
The initial control stringency for power
plants is based on the level of
reductions achievable through
immediately available measures,
including consistently operating
already-installed emissions controls.
Power plant emissions budgets then
decline over time based on the level of
reductions achievable through phased
installation of state-of-the-art emissions
controls starting in 2024. The Good
Neighbor Plan covers sources in
Michigan, Ohio, Indiana, and Illinois,
among other states. The final rule
includes additional features to the
trading program for power plants that
promote consistent operation of
emissions controls to enhance public
health and environmental protection for
the affected downwind regions and will
also benefit local communities,
including:
• A backstop daily emissions rate in
the form of a 3-for-1 allowance
surrender for emissions from large coalfired units that exceed a protective daily
NOX emissions rate. This backstop
31 See https://www.epa.gov/csapr/good-neighborplan-2015-ozone-naaqs.
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would take effect in 2024 for units with
existing controls and one year after
installation for units installing new
controls, but no later than 2030;
• Annually recalibrating the size of
the emissions allowance bank to
maintain strong long-term incentives to
reduce NOX pollution;
• Annually updating emissions
budgets starting in 2030 to account for
changes in power generation, including
new retirements, new units, and
changing operation. Updating budgets
may start as early as 2026 if the updated
budget amount is higher than the State
emissions budgets established by the
final rule for 2026–2029.
The commenters’ concerns about
prior NOX cap and trade programs are
misplaced, and these programs, up
through the Revised CSAPR Update, can
be counted on to deliver ozone air
quality benefits. We continue to find it
reasonable to rely on emissions
reductions from these programs as one
of the measures contributing to the
attainment of this area. The more recent
Good Neighbor Plan for the 2015 ozone
NAAQS signed in March 2023 builds on
these programs and will deliver
continued assurance that permanent
and enforceable emissions reductions
providing air quality benefits to Detroit
(among many other areas) will continue
to be realized.
I. Maintenance Plan Contingency
Provisions
Comment: The commenters contend
that the contingency measure triggers in
Michigan’s maintenance plan are
insufficient. The commenters conclude
that the warning level response trigger
of a 1-year 4th high daily maximum 8hour average of 74 parts per billion
(ppb) and the action level response
trigger of a 4th high daily maximum 8hour average monitoring value averaged
over two years of 71 ppb or more are too
lenient, and essentially meaningless
given the current margin of attainment
in the area. The commenters note that
when considering current monitoring
data, even a single monitoring value of
71 ppb in 2022 would result in a
violation of the NAAQS and trigger a
nonattainment designation.
Response: EPA disagrees with the
commenters’ contention that the
contingency measure triggers are
inadequate. Under the CAA, a violation
of the NAAQS subsequent to
redesignation to attainment does not
trigger an automatic redesignation to
nonattainment. As demonstrated by the
contingency provisions requirement in
section 175A(d), the CAA clearly
anticipates and provides for situations
where an area might monitor a violation
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of the NAAQS after having been
redesignated to attainment. Section
175A(d) of the CAA states that in the
event of a NAAQS violation after an
area is redesignated to attainment a
State is required to implement
additional contingency provisions.
Under this section of the CAA, states are
not obligated to implement additional
emission controls if an area is
‘‘threatened’’ with a future ozone
standard violation. However, EPA does
encourage the states to take preventative
measures to prevent future ozone
standard violations if at all possible, but
does not definitively require the states
to implement the identified contingency
provisions unless a violation of the
standard has actually occurred. See
September 4, 1992, memorandum from
John Calcagni entitled ‘‘Procedures for
Processing Requests to Redesignate
Areas to Attainment’’ (Calcagni
memorandum) at 12. Michigan’s
commitment to respond to triggers of a
1-year 4th high daily maximum 8-hour
average of 74 parts per billion (ppb) and
a 4th high daily maximum 8-hour
average monitoring value averaged over
two years of 71 ppb or more in addition
to responding to a violation of the 2015
ozone NAAQS goes beyond the
minimum requirements of section
175A(d).
Comment: The commenters contend
that the maintenance plan allows
Michigan too much discretion in
selecting and implementing contingency
provisions, stating that the language
does not commit Michigan to
implementing any control measures and
lacks specificity as to which measures
should be implemented in response to
different levels of increasing ozone
pollution. The commenters further
argue that the 18-month timeline
allowed from the triggering event to
implementation of a contingency
measure is too long, stating that a
nonattainment designation for the area
would be finalized by the time a
contingency measure is implemented.
Response: The commenters overlook
the provisions of the CAA applicable to
contingency provisions. Section
175A(d) provides that ‘‘[e]ach plan
revision submitted under this section
shall contain such contingency
provisions as the Administrator deems
necessary to assure that the State will
promptly correct any violation of the
standard which occurs after the
redesignation of the area as an
attainment area.’’ (emphasis added).
Thus, Congress gave EPA discretion to
evaluate and determine the contingency
provisions EPA ‘‘deems necessary’’ to
assure that the State will promptly
correct any subsequent violation. EPA
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has long exercised this discretion in its
rulemakings on section 175A
contingency provisions in redesignation
maintenance plans, allowing as
contingency provisions commitments to
adopt and implement in lieu of fully
adopted contingency measures, and
finding that implementation within 18
months of a violation complies with the
requirements of section 175A. See past
redesignations, e.g., Columbus, OH 2015
ozone standard (84 FR 43508, August
21, 2019), Shoreline Sheboygan County,
WI 2008 ozone standard (85 FR 41405,
July 10, 2020), Columbus, OH, 2008
ozone standard (81 FR 93631, December
21, 2016), Cincinnati, OH-IN, 2008
ozone standard (81 FR 91035, December
16, 2016, and 82 FR 16940, April 7,
2017), Cleveland, OH 2008 ozone
standard (82 FR 1603, January 6, 2017),
St. Louis, MO-IL 2008 ozone standard
(83 FR 8756, March 1, 2018), ChicagoGary-Lake County, IL-IN 1997 ozone
standard (75 FR 26113, May 11, 2010,
and 77 FR 48062, August 13, 2012),
Milwaukee-Racine, WI 1997 ozone
standard (77 FR 45252, July 31, 2012),
and Detroit-Ann Arbor, MI 1997 ozone
standard (74 FR 30950, June 29, 2009).
Section 175A does not establish any
specific deadlines for implementation of
contingency provisions after
redesignation to attainment. It also
provides far more latitude than does
section 172(c)(9), which applies to a
different set of contingency measures
applicable to nonattainment areas.
Section 172(c)(9) contingency measures
must ‘‘take effect . . . without further
action by the State or [EPA].’’ By
contrast, section 175A confers upon
EPA the discretion to determine what
constitutes adequate assurance, and
thus permits EPA to take into account
the need of a State to assess, adopt and
implement contingency provisions if
and when a violation occurs after an
area’s redesignation to attainment.
Therefore, in accordance with the
discretion accorded it by statute, EPA
may allow reasonable time for states to
analyze data and address the causes and
appropriate means of remedying a
violation. In assessing what ‘‘promptly’’
means in this context, EPA also may
take into account time for adopting and
implementation of the appropriate
measure. Cf. Greenbaum v. EPA, 370
F.3d 527, 541 (6th Cir. 2004).
As discussed in the proposed rule at
87 FR 14218, EPA has determined that
Michigan’s maintenance plan comports
with the requirements set forth at
section 175A of the CAA. The
contingency plan portion of Michigan’s
maintenance plan delineates the State’s
planned actions in the event of future
2015 ozone standard violations or
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increasing ozone levels threatening a
subsequent violation of the ozone
standard.
Michigan has developed a
contingency plan with two levels of
triggered actions. A warning level
response is triggered if a 4th high daily
maximum 8-hour average ozone
concentration of 74 ppb or greater
occurs within the maintenance area. If
a warning level response is triggered,
Michigan will conduct a study to
determine whether the ozone value
indicates a trend toward higher ozone
values and whether emissions appear to
be increasing. The study will evaluate
whether the trend, if any, is likely to
continue and, if so, the control measures
necessary to reverse the trend. Michigan
commits to implementing necessary
controls within 18 months.
An action level response is triggered
if: (1) a two-year average of the 4th high
daily maximum 8-hour average ozone
concentration at a monitor within the
maintenance area is 71 ppb or greater;
or (2) if a violation of the 2015 ozone
NAAQS is monitored within the
maintenance area. If an action level is
triggered and is not found to be due to
an exceptional event,32 malfunction, or
noncompliance with a permit condition
or rule requirement,33 Michigan will
determine what additional control
measures are needed to assure future
attainment of the 2015 ozone NAAQS.
Michigan’s contingency plan for the
Detroit area lists a number of possible
contingency provisions. The list of
possible contingency provisions in
Michigan’s plan include the following:
(1) VOC or NOX RACT rules for existing
sources covered by Control Technique
Guidelines, Alternative Control
Guidelines, or other appropriate
32 Should Michigan believe an action level
response was triggered by an exceptional event,
Michigan would need to submit an exceptional
event demonstration in accordance with EPA’s
Exceptional Events Rule codified at 40 CFR 50.1,
50.14, and 51.930. Should EPA concur with the
demonstration, the event-affected air quality data
would be excluded from the data set used for
certain regulatory decisions. Removal of such data
would affect the monitoring values used to
determine whether an action level response was
triggered. Should EPA non-concur on the
exceptional event demonstration or should an
action level response still be triggered after removal
of the affected data, Michigan would be required to
address the action level trigger with control
measures sufficient to return the area to attainment
of the 2015 NAAQS.
33 Should Michigan find that an action level
response is triggered by malfunction or
noncompliance with a permit or rule requirement,
enforcement action or other measures to ensure an
expeditious return to compliance may constitute an
appropriate response to the trigger. Note that
depending on the circumstances of the trigger, the
appropriate response may be a combination of
compliance assurance and contingency provision
implementation.
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guidance; (2) application of VOC RACT
on existing smaller sources; (3)
alternative fuel and diesel retrofit
programs for fleet vehicle operations; (4)
VOC or NOX control on new minor
sources (less than 100 tons per year); (5)
increased VOC or NOX emission offsets
for new and modified major sources; (6)
reduced idling programs; (7) trip
reduction programs; (8) traffic flow and
transit improvements; (9) increased
turnover of legacy natural gas
distribution pipelines; (10) stationary
engine controls to reduce formaldehyde
and NOX emissions; (11) phase 2
architectural and industrial
maintenance coatings (AIM) rules; (12)
phase 5 consumer products rules; and,
(13) additional measures as identified
by EGLE. EGLE may also consider the
timing of an action level trigger and
determine if additional, significant new
regulations not currently included as
part of the maintenance provisions will
be implemented in a timely manner and
will constitute the response.
Upon triggering an action level
response, Michigan may find that
choosing a contingency provision from
the list included in the maintenance
plan is not necessary because there are
significant new regulations already
adopted that will address the elevated
ozone levels. This does not mean that
Michigan would be choosing not to
implement control measures in response
to a triggering event. A State can choose
as its contingency provision any
adopted but not fully implemented
control measure providing that it is not
included in the calculation of the
maintenance inventory. The emissions
reductions from these programs are real,
not considered in maintenance plan
emissions projections, and can be
achieved more quickly since the State
has already gone through the adoption
process. To prohibit a State from using
any control measure adopted prior to
the actual triggering of a maintenance
plan contingency provision would only
penalize states that are proactive in
addressing anticipated air quality
problems.
Michigan’s maintenance plan calls for
the appropriate contingency provisions
to be implemented within 18 months of
a triggering event. In order to properly
deal with potential future ozone
standard violations and to comply with
its own internal rulemaking procedure
requirements, Michigan requires time to
evaluate potential controls and provide
public notice and public participation
in the rulemaking process when
adopting contingency provisions. The
commenters provided no rationale for
why a time period shorter than 18
months to adopt and implement
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contingency provisions is warranted.
EPA finds that 18 months, as described
in Michigan’s maintenance plan, is a
reasonable time period for Michigan to
meet its regulatory obligations while
meeting the requirement under section
175A to promptly correct a potential
monitored violation. This timeframe
also conforms with EPA’s many prior
rulemakings on acceptable schedules for
implementing section 175A contingency
provisions as noted above.
Comment: The commenters argue that
the maintenance plan should address
the possibility of a violation of the
NAAQS by committing Michigan to an
expedited nonattainment designation
process if that occurs.
Response: Under the CAA, a violation
of the NAAQS subsequent to
redesignation to attainment does not
trigger an automatic redesignation to
nonattainment. As demonstrated by the
contingency provisions required by
section 175A(d), the CAA clearly
anticipates and provides for situations
where an area might monitor a violation
of the NAAQS after having been
redesignated to attainment, and leaves it
to the Administrator to determine
whether redesignation to nonattainment
and a new nonattainment plan SIP
submission is necessary in such cases.
Michigan’s maintenance plan also
accounts for this possibility by
including a violation of the NAAQS as
an action level trigger requiring the
implementation of control measures to
reduce ozone precursor emissions and
bring the area back into attainment.
Finally, EPA retains its authority under
CAA section 107(d)(3)(A) to initiate a
redesignation ‘‘on the basis of air quality
data, planning and control
considerations, or any other air qualityrelated considerations the Administrator
deems appropriate.’’ Given this
underlying authority, and the
uncertainty of any cause of a potential
future violation, we do not agree that it
is necessary or appropriate to include
the suggested commitment in the State’s
maintenance plan.
J. Maintenance Plan Modeling Platform
Comment: The commenters argue that
because EGLE’s 2019 emissions
inventory shows emissions lower than
in EPA’s Emissions Inventory System,
the 2016v2 model that EGLE used may
be underpredicting emissions, which
would impact the future emissions
projections.
Response: The commenters
misunderstand how 2016v2 emissions
data are being used in the context of this
redesignation. Air emissions modeling
platform development is the process of
preparing emission inventories for use
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32607
in air quality models. Air quality
models typically require hourly, gridded
emissions of specific pollutants. An
emissions modeling platform (hereafter
referred to as emissions platform or
platform) is the full set of emissions
inventories, other data files, software
tools, and scripts that process the
emissions into the form needed for air
quality modeling. Each platform relies
on a version of the NEI for most of its
data, although some adjustments are
made to support air quality modeling.
The 2016v2 platform incorporates
emissions based on: MOVES3, the 2017
NEI nonpoint inventory (both
anthropogenic and biogenic), the
Western Regional Air Partnership oil
and gas inventory, and updated
inventories for Canada and Mexico. The
2016v2 platform includes emissions for
the years 2016, 2023, 2026, and 2032.
Methodologies are documented in the
technical support document for the
2016v2 platform. The commenters have
articulated no specific problems with
any of the 2016v2 platform emission
inventories or with the methodologies
used to develop them.
EPA policy, as set forth in the
Calcagni memorandum, and
longstanding practice allows states to
demonstrate maintenance by preparing
an attainment emissions inventory
corresponding to the period during
which the area monitored attainment
and to demonstrate maintenance by
showing that future emissions are
projected to remain below this level for
ten years following redesignation.
Following this policy, Michigan
selected a 2019 emission inventory to
represent attainment level VOC and
NOX emissions, which is appropriate
because it is one of the years in the
period used to demonstrate monitored
attainment of the NAAQS. In
developing the 2019 attainment
inventory for the Detroit area, Michigan
interpolated between the 2016 and 2023
2016v2 platform inventories for point,
nonpoint and nonroad inventories. For
on-road emissions estimates, SEMCOG
used EPA’s MOVES3 model to generate
emissions with local travel inputs
including vehicle population, VMT,
speeds, road types, Vehicle Hours of
Travel, and vehicle age, as well as
meteorological data. To demonstrate
maintenance through 2035, Michigan
developed emission inventories for 2035
and an interim year of 2025. To estimate
point, nonpoint and nonroad emissions,
Michigan used 2016v2 platform
inventories. Specifically, for the 2025
interim year, Michigan interpolated
between 2023 and 2026 2016v2 platform
inventories. For the maintenance year,
Michigan extrapolated to 2035 using the
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2026 and 2032 2016v2 platform
inventories. For on-road emissions in
2025 and 2035 SEMCOG used EPA’s
MOVES3 model to generate emissions
with local travel inputs as described
above. When comparing emissions
between attainment year 2019 and
maintenance year 2035, VOC and NOX
emissions decrease by 34.88 TPSD and
99.55 TPSD, respectively. Michigan’s
maintenance demonstration clearly
follows the process set forth in the
Calcagni memorandum, showing that
future emissions are projected to
decrease and remain below the level of
the attainment inventory. Again, the
commenters articulated no specific
problems with Michigan’s maintenance
plan inventories or methodologies and
suggested nothing specific that should
have been done to improve those
inventories.
In questioning the validity of these
inventories for demonstrating
maintenance, the commenters pointed
to EPA’s review of point source
emissions data submitted through EIS.
The commenters mistakenly inferred
that EPA found all the inventories
Michigan submitted based on the
2016v2 platform to underestimate
emissions in comparison to EIS data.
This is not the case. In reviewing
Michigan’s submission, EPA only
compared the interpolated point source
inventories for 2019 submitted by EGLE
against point source emissions
information available to EPA through
EIS. EPA converted annual emission
totals to a value of tons per ozone
season day using the same conversion
factors calculated by EGLE. Michigan’s
interpolated inventory estimates 2019
NOX and VOC point source emissions to
be 97.01 tons per ozone season day and
13.74 tons per ozone season day,
respectively. Using EIS reported point
source data and conversion factors, EPA
estimated 2019 NOX and VOC point
source emissions to be 102.27 tons per
ozone season day and 29.42 tons per
ozone season day, respectively. While
EIS-based 2019 point source estimates
differed from estimates based upon
interpolation between 2016v2 platform
years, Michigan’s maintenance
demonstration remains valid. Regardless
of whether EGLE had chosen to use
point source emissions from EIS or from
the 2016v2 platform in compiling its
inventory for the 2019 attainment year,
projected emissions for 2025 and future
years would be well below the
attainment inventory, as is
demonstrated in Tables 4 and 5.
Further, beyond making the statement
that ‘‘the 2016v2 model may be
underpredicting emissions,’’ the
commenters offer no substantive
evidence to support this conclusion.
TABLE 4—DETROIT NOX EMISSIONS FOR 2019 ATTAINMENT YEAR (WITH EIS AND 2016V2 POINT SOURCE EMISSIONS),
2025 INTERIM YEAR, AND 2035 MAINTENANCE YEAR
[Tons per ozone season day]
2019
Category
EIS point
source
Net change (2019–2035)
2016v2
interpolated
point source
2025
2035
EIS point
source
2016v2
interpolated
point source
Point .......................................................................................
Nonpoint .................................................................................
On-road ..................................................................................
Nonroad .................................................................................
102.27
27.98
105.80
22.51
97.01
27.98
105.80
22.51
80.8
27.39
61.20
17.49
76.44
25.84
40.30
15.17
¥25.83
¥2.14
¥65.50
¥7.34
¥20.57
¥2.14
¥65.50
¥7.34
Total ................................................................................
258.56
253.30
186.91
157.75
¥100.81
¥95.55
TABLE 5—DETROIT VOC EMISSIONS FOR 2019 ATTAINMENT YEAR (WITH EIS AND 2016V2 POINT SOURCE EMISSIONS),
2025 INTERIM YEAR, AND 2035 MAINTENANCE YEAR
[Tons per ozone season day]
2019
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Category
EIS point
source
Net change (2019–2035)
2016v2
interpolated
point source
2025
2035
EIS point
source
2016v2
interpolated
point source
Point .......................................................................................
Nonpoint .................................................................................
On-road ..................................................................................
Nonroad .................................................................................
29.42
134.77
51.70
30.46
13.74
134.77
51.70
30.46
14.1
134.12
34.40
27.39
14.12
133.11
22.00
26.56
¥15.30
¥1.66
¥29.70
¥3.90
0.38
¥1.66
¥29.70
¥3.90
Total ................................................................................
246.35
230.67
209.97
195.79
¥50.56
¥34.88
Michigan’s maintenance plan
projected that in 2035, the area would
see an overall reduction in NOX and
VOC emissions of 95.55 and 34.88
TPSD, relative to the 2019 attainment
inventory. More than half of these
reductions are attributable to the onroad sector with projected decreases of
65.50 and 29.70 TPSD in NOX and VOC,
respectively. The on-road sector was not
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interpolated or extrapolated. It was run
using EPA’s MOVES3 model and area
specific data, which was not called into
question by the commenters. The
difference between interpolating point
source emissions for 2019 rather than
using emissions reported through EIS
does not change the fact that projected
emissions for future years 2025 and
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2035 are below the level of the
attainment inventory.
Comment: The commenters contend
that the 2016v2 emissions platformbased air quality model predictions of
ozone concentration decreases through
2023 appear overly optimistic, as the
majority of the reductions would need
to occur in the next two years. The
commenters contend that unrealistic
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predictions by the air quality model
render suspect Michigan’s reliance on
the 2016v2 emissions platform for its
attainment projections and that EPA
should explain how it can assure the
improvements in air quality predicted
by the air quality model.
Response: To clarify, Michigan and
EPA are not relying on the air quality
modeling’s predictions (i.e., the
projected future design values) to meet
the CAA’s requirement that the
maintenance plan provide for
maintenance of the NAAQS for ten
years following redesignation. Michigan
only used the emissions inventories
generated for the 2016v2 platform and is
not relying on the results of the air
quality model (i.e., the modeled future
design values that are estimated using
the air quality modeling performed
using that emissions platform). We do
not agree that EPA has an obligation to
assure the air quality model’s predicted
design values come to pass.
A maintenance demonstration need
not be based on modeling. See Wall v.
EPA, 265 F.3d 426 (6th Cir. 2001), Sierra
Club v. EPA, 375 F. 3d 537 (7th Cir.
2004). See also 66 FR 53094, 53099–
53100 (October 19, 2001), and 68 FR
25413, 25430–25432 (May 12, 2003).
EPA policy and longstanding practice
allows states to demonstrate
maintenance by preparing an attainment
emissions inventory corresponding to
the period during which the area
monitored attainment and to project
maintenance by showing that future
emissions are projected to remain below
this level for the next ten years. See
Calcagni memorandum. Holding
emissions at or below the level of
attainment is adequate to reasonably
assure continued maintenance of the
standard. See 65 FR 37879, 37888 (June
19, 2000).
Comment: The commenters also
express concern that some of the
regulatory actions assumed in the
2016v2 emissions platform may not be
implemented in the event of a change in
Administration, causing emissions to
rise.
Response: As noted above, EPA’s
longstanding practice is to permit states
to ‘‘provide for the maintenance of the
NAAQS’’ as required by CAA 175A by
comparing current attainment emission
inventories with projected future
inventories. Inherent in the act of
projection is some uncertainty; in order
to accurately project future year
inventories, the Agency must make
assumptions that cannot be made
enforceable, such as expectations about
population growth and energy demand.
We would also note that, as commenters
point out, even adopted, enforceable
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measures can be revised. For the 2016v2
emissions platform, future year
emissions were projected from the 2016
base case either by running models to
estimate future year emissions from
specific types of sources or by adjusting
the base year emissions according to the
best estimate of changes expected to
occur in the intervening years. Rules
and specific legal obligations that go
into effect in the intervening years,
along with anticipated changes in
activity of the sector (e.g., source
retirements) were incorporated when
possible. Documentation of the specific
methodologies used to develop future
year emissions for the 2016 emissions
platform can be found in the technical
support document for the 2016v2
platform. EPA contends that the
methods used to develop the 2016v2
emissions platform were appropriate
and it was reasonable for Michigan to
use those emissions in developing
inventories for the Detroit maintenance
plan.
K. Approval of Infrastructure SIP
Comment: The commenters state that
EPA must find that the State ‘‘has met
all requirements applicable to the area
for the purposes of redesignation under
section 110 and part D’’ of the CAA,
which the commenters allege includes
having an approved infrastructure SIP
pursuant to CAA section 110(a)(2). The
commenters allege that EPA’s approval
of Michigan’s infrastructure SIP for the
2015 ozone NAAQS was entered in
error, due to an oversight in failing to
review and respond to comments from
Sierra Club. The commenters allege that
‘‘unless and until EPA reissues an
approval that properly considers and
responds to this comment, EPA should
not consider Michigan to have an
approved ozone infrastructure SIP for
the purposes of redesignation.’’
Response: As we noted in our March
14, 2022, proposed rulemaking, SIP
requirements that are not linked with
the area’s ozone designation and
classification are not ‘‘applicable’’
measures to evaluate when reviewing a
redesignation request for the area under
CAA section 107(d)(3)(E)(ii) and (v). We
noted that section 110(a)(2)(D)
requirements, like many section
110(a)(2) requirements, continue to
apply to a State regardless of the
designation of any one particular area
within the State, and thus are not
applicable requirements for purposes of
redesignation. See 65 FR 37890 (June
15, 2000), 66 FR 50399 (October 19,
2001), 68 FR 25418, 25426–27 (May 13,
2003). In addition, EPA believes that
other section 110 elements that are not
connected to an area’s ozone
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32609
nonattainment designation are not
applicable requirements for purposes of
redesignation. The area will still be
subject to these requirements after the
area is redesignated to attainment of the
2015 ozone NAAQS. This approach is
consistent with EPA’s interpretation of
the applicability of conformity
requirements for purposes of CAA
section 107(d)(3)(E)(ii) and (v), as well
as with section 184 ozone transport
requirements. See Reading,
Pennsylvania proposed and final
rulemakings (61 FR 53174–53176,
October 10, 1996 and 62 FR 24826, May
7, 1997), Cleveland-Akron-Loraine,
Ohio final rulemaking (61 FR 20458,
May 7, 1996), and Tampa, Florida final
rulemaking (60 FR 62748, December 7,
1995). See also the discussion of this
issue in the Cincinnati, Ohio ozone
redesignation (65 FR 37890, June 19,
2000), and the Pittsburgh, Pennsylvania
ozone redesignation (66 FR 50399,
October 19, 2001).
In any case, on May 19, 2022 (87 FR
30420), EPA published a final
rulemaking which corrected the
omission of timely comment and
response in our September 28, 2021,
rulemaking approving most elements
and disapproving the visibility
protection requirements of CAA section
110(a)(2)(D)(i)(II) prong 4.34 EPA has
reissued the approval in question after
responding to comments on the
proposal, addressing concerns with
Michigan’s satisfaction of CAA section
110(a)(2)(E)(i) with respect to adequate
resources.
L. Enforcement Authority
Comment: The commenters dispute
the commitment in Michigan’s SIP
stating that the State ‘‘has the authority
to implement the requested SIP revision
. . . includ[ing] the authority to adopt,
implement, and enforce any subsequent
emission control measures determined
to be necessary to correct future ozone
attainment problems.’’ The commenters
assert that the State does not have the
authority to enforce emission control
measures that may be needed to correct
future ozone problems. The commenters
rely on a decision from the Michigan
Court of Claims which invalidated a
State administrative rule, Michigan
Administrative Code (MAC) 336.1430
(‘Rule 430’), on the basis that the rule
failed the State Administrative
Procedures Act ‘‘general applicability’’
34 Michigan has a partially approved Regional
Haze Plan and is subject to FIPs for St. Marys
Cement, Escanaba Paper Company, and Tilden
Mining, a taconite processing facility. See 81 FR
21671 (April 12, 2016) and 83 FR 25375 (July 2,
2018) for more information on the FIPs that apply
to this area.
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requirement because of its focus on one
particular facility. The commenters
assert that EPA has failed to address the
court’s holding or explain why the
Agency believes Michigan will have
sufficient authority to impose
enforceable emissions limitations as
may be necessary when a particular
polluter refuses to limit pollution as
needed to bring an area into attainment
with the NAAQS in the event of future
violations of the NAAQS that trigger
contingency provisions. The
commenters urge EPA to reexamine
whether Michigan has adequate
authority to implement its maintenance
plan in light of U.S. Steel Corp. and to
disapprove the plan if the Agency
concludes that Michigan does not.
Response: We do not agree that the
U.S. Steel Corp. decision indicates that
Michigan does not have authority to
implement and enforce its maintenance
plan. The State listed the following
contingency provisions in its
maintenance plan for the Detroit area:
(1) VOC or NOX RACT rules for existing
sources covered by Control Technique
Guidelines, Alternative Control
Guidelines, or other appropriate
guidance; (2) application of VOC RACT
on existing smaller sources; (3)
alternative fuel and diesel retrofit
programs for fleet vehicle operations; (4)
VOC or NOX control on new minor
sources (less than 100 tons per year); (5)
increased VOC or NOX emission offsets
for new and modified major sources; (6)
reduced idling programs; (7) trip
reduction programs; (8) traffic flow and
transit improvements; (9) increased
turnover of legacy natural gas
distribution pipelines; (10) stationary
engine controls to reduce formaldehyde
and NOX emissions; (11) phase 2
architectural and industrial
maintenance coatings (AIM) rules; (12)
phase 5 consumer products rules; and,
(13) additional measures as identified
by EGLE. Given the nature of these
provisions, we think it unlikely that
these measures are designed to apply
only to a single source, like the State
rule at issue in the U.S. Steel Corp.
decision, which the court found clearly
applied to only one entity and could
conceivably apply to only one entity. To
the extent that the commenters are
asserting that EPA should disapprove
the State’s maintenance plan because
the State may need to target emissions
from one particular source in the event
of a future violation, and the 2017 Court
of Claims decision calls into question
whether the State could do so, we
anticipate that the State will adopt
future measures consistent with the
applicable procedural State law
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requirements at issue in U.S. Steel Corp.
The State has provided in its
maintenance plan for twelve
contingency provisions that on their
face appear to be generally applicable,
and it would be unreasonable to
disapprove the SIP submission based on
a measure the State has not adopted, nor
suggested it would adopt, on the
speculation that such a measure might
be necessary.
Moreover, we note that in our May 19,
2022, final rulemaking correcting the
omission in the September 28, 2021,
rulemaking, EPA published a
substantive response to Sierra Club’s
comment regarding Michigan’s
authority to enforce control measures.
87 FR 30420. As we noted then, EPA
disagrees with the commenters’ concern
that the Michigan Court of Claims
decision in United States Steel Corp. v.
Dept. of Environmental Quality,
indicates that Michigan lacks legal
authority to regulate sources. EPA
concluded that the court only decided
that the State had improperly sought to
impose emissions controls on the
sources at issue through a rule that did
not meet State law requirements for a
‘‘rule of general applicability’’ in
violation of relevant State
administrative procedures act
requirements. EPA interprets the ruling
to indicate that the State does have
authority under Michigan law to impose
necessary emission limitations on
sources, as required to meet CAA
requirements, via other legal
mechanisms. In our May 19, 2022, final
rulemaking, EPA identified several
authorities by which Michigan may
enforce its SIP.
M. Prevention of Significant
Deterioration (PSD) Program
Comment: The commenters argue that
EGLE did not properly implement the
preconstruction monitoring requirement
for several sources subject to PSD New
Source Review (NSR), and thus the
commenters contend that CAA section
107(d)(3)(E)(v), which requires that EPA
determine the State has met all
applicable SIP requirements described
in CAA section 110, is not satisfied. The
commenters assert that CAA section 110
includes a requirement to include
provisions for the proper
implementation of programs including
PSD NSR. The commenters
acknowledge that Michigan has adopted
provisions meeting CAA requirements
regarding preconstruction monitoring
requirements into its SIP, but the
commenters allege that the State has
failed to properly implement those
requirements. Specifically, the
commenters State that Michigan has
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failed to collect air quality data as
required from sources with net
emissions increases of 100 tpy or more
of VOCs or NOX. The commenters also
call into question the validity of the
significant monitoring concentrations
for ozone established in 40 CFR part 51
and 40 CFR part 52 based on a D.C.
Circuit decision regarding Significant
Monitoring Concentrations (SMCs) for
particulate matter, and they state that
the ozone SMCs are unlawful and must
be vacated.
Response: CAA section 107(d)(3)(E)(v)
states that EPA may not promulgate a
redesignation of a nonattainment area to
attainment unless ‘‘the State containing
such area has met all requirements
applicable to the area under section
7410 [i.e., section 110] of this title and
Part D of this subchapter.’’ Section 110,
as it pertains to obligations for states,
sets forth the required contents of the
revisions to a State’s implementation
plan that must be adopted and
submitted to EPA after the promulgation
of a NAAQS. EPA therefore understands
its role in determining whether CAA
section 107(d)(3)(E)(v) is satisfied to be
an inquiry into whether a State has
adopted and submitted to EPA all those
revisions to its SIP that are required by
section 110 and part D. In this case,
Michigan has met its obligations to
submit those requirements applicable to
it for purposes of redesignation.
As we noted in the March 14, 2022,
proposed rulemaking, EPA fully
approved Michigan’s PSD program on
March 25, 2010 (75 FR 14352), and most
recently approved revisions to
Michigan’s PSD program on May 12,
2021 (86 FR 25954). The SIP-approved
PSD program prohibits air quality from
deteriorating beyond the concentration
allowed by the applicable NAAQS. See
MAC R 336.2811.
We do not agree with the commenter
that a State’s implementation of its SIP
is equivalent to whether the State has
met the requirements of CAA section
110 and part D, which concern whether
a State has made required revisions to
its SIP. Any issues with respect to the
State’s application of the approved SIP
are beyond the scope of this action and
should be raised on a permit specific
basis.
Similarly, comments regarding the
lawfulness of EPA’s PSD regulations
pertaining to ozone at 40 CFR
51.166(i)(5)(i)(f) or 40 CFR
52.21(i)(5)(i)(f) are outside the scope of
this action.
N. Supplemental Comments
Comment: In their March 14, 2023,
supplemental comment, commenters
contend that EPA cannot redesignate the
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Detroit area until EPA has approved
RACT and reasonably available control
measures (RACM) for the area.
Commenters note that under section
107(d)(3)(E), EPA cannot redesignate an
area unless (among other things) ‘‘the
State containing such area has met all
requirements applicable to the area
under section [110] and part D of [title
I of the Act].’’ Effective March 1, 2023,
EPA reclassified the Detroit ozone
nonattainment area as Moderate. This
triggered a requirement under sections
182(b)(2) and 182(f) of the CAA for
Michigan to implement RACT for
sources of VOCs and NOX. The
commenters, citing Sierra Club v. U.S.
EPA, 793 F.3d 656 (6th Cir. 2015),
contend that section 172(c)(1) of the
CAA requires Michigan to implement
RACM, regardless of whether the area is
attaining the NAAQS.
The Commenters further contest
EPA’s position that, for purposes of
redesignation ‘‘all requirements
applicable to the area’’ are those that
were due prior to the State’s submittal
of a complete redesignation request. The
commenters cite the decision in Sierra
Club v. U.S. EPA for the proposition that
EPA does not have discretion to
reinterpret the CAA’s unambiguous
requirement that nonattainment plans
for areas in the Moderate category or
worse must include RACT/RACM
requirements. The commenters state,
‘‘Just as EPA cannot excise [RACT/
RACM] from the statutory requirement
that a State meet ‘all’ requirements
applicable to the area, EPA cannot
create a wholesale exception to the
State’s requirement to meet ‘all’
requirements applicable to a moderate
area based on the timing of the State’s
redesignation submission.’’ The
commenters assert that EPA’s approach
is contrary to the plain meaning of
section 107(d)(3)(E)(v) that ‘‘all’’ means
all. The commenters argue that the
structure and purpose of the CAA
confirm their interpretation, claiming
that EPA’s interpretation gives states an
incentive to submit redesignation
requests early, regardless of whether the
State qualifies at the time of submission,
in order to evade future requirements.
The commenters also contend that
‘‘section 107(d)(3)(E) applies not only to
redesignation requests from a State, but
also to EPA’s redesignation on its own
initiative under section 107(d)(3)(A).
Given this, EPA cannot explain why the
submittal date of a redesignation request
should have any relevance to section
107(d)(3)(E)(v)’s requirements.’’
Response: Section 172(c) of the CAA
sets forth the basic requirements of air
quality plans for states with
nonattainment areas. Subpart 2 of part
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D, which includes section 182 of the
CAA, establishes specific requirements
for ozone nonattainment areas
depending on the areas’ nonattainment
classifications. Detroit was designated
as nonattainment and classified as
Marginal for the 2015 ozone NAAQS,
effective August 3, 2018. As provided in
subpart 2, for Marginal ozone
nonattainment areas such as the Detroit
area, the specific requirements of
section 182(a) apply in lieu of the
attainment planning requirements that
would otherwise apply under section
172(c), including the attainment
demonstration and RACM under section
172(c)(1), reasonable further progress
under section 172(c)(2), and
contingency measures under section
172(c)(9).
The only RACT provision applicable
to ozone areas classified as Marginal is
contained in CAA section 182(a)(2)(A),
which requires states with ozone
nonattainment areas that were
designated prior to the enactment of the
1990 CAA amendments to submit,
within six months of classification, all
rules and corrections to existing VOC
RACT rules that were required under
section 172(b)(3) prior to the 1990 CAA
amendments. The Detroit area is not
subject to the section 182(a)(2) RACT
‘‘fix up’’ requirement for the 2015 ozone
NAAQS because it was designated as
nonattainment for this standard after the
enactment of the 1990 CAA
amendments and, in any case, Michigan
complied with this requirement for the
Detroit area under the prior 1-hour
ozone NAAQS.35 With respect to
RACM, areas classified as Marginal are
not required to perform a RACM
analysis. This is clearly stated in the
2008 Ozone NAAQS SIP Requirements
Rule, ‘‘Note that a RACM analysis is not
required for Marginal nonattainment
areas since an attainment demonstration
is not required for those areas.’’ 36 EPA
retained this approach in the
Implementation Rule for the 2015 ozone
NAAQS, based on the rationale and
approach articulated in the final 2008
Ozone NAAQS SIP Requirements
Rule.37
The Detroit area was reclassified as
Moderate under the 2015 ozone NAAQS
effective March 1, 2023.38 As a
Moderate area, Detroit became subject to
the RACT provisions of CAA section
182(b)(2) and RACM requirements
associated with the attainment
demonstration. These moderate RACT
35 See
60 FR 46182 (September 7, 1994).
FR 12264, 12271 (March 6, 2015).
37 83 FR 62998, 63007–63008 (December 6, 2018).
38 88 FR 6633 (February 1, 2023).
36 80
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32611
and RACM plans became due March 1,
2023.
CAA section 107(d)(3)(E)(v) provides
that the Administrator may not
promulgate a redesignation of a
nonattainment area to attainment
unless, among other things, ‘‘the State
containing such area has met all
requirements applicable to the area
under section 7410 of this title and Part
D of this subchapter.’’ Since the CAA
was amended in 1990, EPA has
consistently interpreted the term
‘‘applicable’’ in this provision not to
include those section 110 and part D
requirements that came due after the
submittal of a complete redesignation
request. See Calcagni memorandum at 4.
Specifically, the Calcagni memorandum
explains that ‘‘When evaluating a
redesignation request, Regions should
not consider whether the State has met
requirements that come due under the
CAA after submittal of a complete
redesignation request’’ but that per CAA
section 175A(c), the requirements of
part D remain in force and effect for the
area until such time as it is
redesignated. Id., n.3. See also Michael
Shapiro Memorandum, September 17,
1993.
As EPA has explained in actions
applying this interpretation over the
past 30 years, reading the CAA in this
way balances the reasonable
expectations of a requesting State and
the timing the CAA provides for EPA to
act on State submissions. See, e.g., 60
FR 12459, 12465–66 (March 7, 1995)
(Redesignation of Detroit-Ann Arbor for
the 1979 1-hour ozone NAAQS). Per
CAA section 107(d)(3)(D), EPA must
approve or deny a State’s request for
redesignation within 18 months of
receipt of a complete redesignation
submittal. With respect to SIP
submittals addressing applicable CAA
section 110 and part D requirements,
CAA section 110(k)(2) requires EPA to
act on such submissions within 12
months of a determination that the
submission is complete (i.e., maximum
18 months from submission, given the
maximum time frame provided under
CAA section 110(k) for statutorily
deeming a submission complete). In
order for EPA to approve a
redesignation request, per the
requirements of CAA section
107(d)(3)(E)(ii) it needs to have fully
approved (per 110(k)) the ‘‘applicable’’
implementation plan, which again is
defined by the ‘‘applicable’’
requirements for redesignation as set
forth in CAA section 107(d)(3)(D)(v).
Therefore, if EPA were to read the CAA
as commenters suggest, by withholding
any approval of a redesignation until the
State made submissions for deadlines
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occurring after the original date of
submittal, and until EPA had acted on
those submissions, the State might
never be able to have the area
redesignated. Each CAA requirement
coming due during the pendency of
EPA’s review of a redesignation request
carries with it a necessary implication
that EPA must also fully approve the
SIP submission made to satisfy that
requirement in order for the area to be
redesignated. We do not think it is a
reasonable reading of the CAA to
require states to make additional SIP
submissions on which EPA would need
to fully act before it could act on the
redesignation request before it; such an
interpretation would almost necessarily
delay action on the redesignation
request beyond the 18-month time
frame. EPA’s interpretation in no way
obviates the ongoing obligation of states
to continue to comply with
requirements coming due after the
submission of the redesignation request.
It simply means that areas may be
redesignated even though the State may
not have complied with those
requirements. See 60 FR at 12466.
Reviewing courts have upheld EPA’s
interpretation that requirements coming
due after a complete redesignation
request is submitted are not
‘‘applicable’’ for purposes of
redesignation. Sierra Club v. EPA, 375
F.3d 537 (7th Cir. 2004) (upholding the
redesignation of St. Louis based on the
timing of submittal and deadline of
requirements, even though by the time
EPA acted on the State’s redesignation
it had been reclassified to a higher
classification and was subject to more
stringent SIP requirements, 68 FR
25418, 25424–27 (May 12, 2003)).
EPA disagrees with the commenters’
assertion that this longstanding
approach is contrary to the plain
meaning of section 107(d)(3)(E)(v).
Commenters emphasize that ‘‘all means
all’’ but in doing so, they excise
‘‘applicable’’ from CAA section
107(d)(3)(E)(v). States must meet ‘‘all
requirements applicable,’’ and EPA’s 30year interpretation of that phrase is that
not every requirement is necessarily
applicable for purposes of evaluating a
redesignation request. EPA further
disagrees with the commenters’
assertion that this longstanding
interpretation is inconsistent with the
Sixth Circuit Court’s decision in Sierra
Club v. U.S. EPA, 793 F.3d 656 (2015).
In that case, the CAA section 172(c)(1)
RACT/RACM requirements at issue had
come due prior to submission of a
complete redesignation request.
Moreover, even in the 2015 Sierra Club
decision, the 6th Circuit acknowledged
that it had previously held that CAA
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section 107(d)(3)(E)(v) ‘‘could be read to
‘limit the number of actual requirements
within [CAA section 110] and Part D
that apply to a given area,’ ’’ quoting
Wall v. EPA, 265 F.3d 426, 439 (2001),
and noting that it had deferred to the
Agency’s view that part D transportation
conformity requirements were not
‘‘requirements applicable to the area’’
under CAA section 107(d)(3)(E)(v).
Sierra Club v. EPA, 793 F.3d at 669.
When Michigan submitted the
redesignation request, on January 3,
2022, the Detroit area was classified as
Marginal. As a Marginal area, Detroit
had no applicable RACT or RACM
requirements. The RACT and RACM
requirements triggered by the
reclassification of the Detroit area as
Moderate did not become due until
March 1, 2023, well after Michigan
submitted a complete redesignation
request for the Detroit area. Thus, per
EPA’s interpretation provided above,
the Moderate RACT and RACM
requirements are not ‘‘requirements
applicable to the area’’ for purposes of
CAA section 107(d)(3)(E)(v), and EPA is
not barred from approving the
redesignation in the absence of the State
having met those requirements. EPA
determined that Michigan’s
redesignation request was complete for
purposes of redesignation because at the
time it was submitted the Detroit area
was attaining the 2015 ozone NAAQS
and Michigan had submitted all
applicable SIP requirements for
purposes of redesignation. The
redesignation request continues to be
complete because the area has not
violated the NAAQS since the
redesignation request was submitted.
Contrary to what was implied by the
commenters, the State did not submit
the redesignation request before the area
qualified for redesignation. Had
Michigan failed to submit all SIP
requirements applicable for
redesignation or failed to demonstrate
that the Detroit area was attaining the
NAAQS, the submission would not have
been considered complete for purposes
of redesignation. Hence there is no
incentive for states to submit a
redesignation request before an area
qualifies for redesignation.
Finally, we do not agree that
commenters’ observations that CAA
section 107(d)(3)(E) applies also to
redesignations initiated by EPA under
CAA section 107(d)(3)(A) is relevant to
which requirements should be
considered ‘‘applicable’’ for purposes of
CAA section 107(d)(3)(E)(v). The CAA
contemplates that EPA-initiated
redesignations under subsection (A) will
be followed by response and submission
from the State. See CAA section
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107(d)(3)(B) and (C). While subsection
(C) contemplates that the Administrator
can promulgate some redesignations
even in the absence of a State
submission, other requirements in CAA
section 107(d)(3)(E) suggest that states
must play a key role for redesignations
from nonattainment to attainment; in
particular, the requirement under CAA
section 107(d)(3)(E)(iv) that a
maintenance plan be fully approved,
because such plan would need to be
prepared and submitted by a State.
Other redesignations, such as
redesignations from attainment or
unclassifiable to nonattainment, are not
subject to CAA section 107(d)(3)(E), and
can therefore be promulgated without
any submission from the State, as
suggested by CAA section 107(d)(3)(C).
Comment: In their March 14, 2023,
supplemental comment, commenters
raise several additional issues. First,
commenters contend that EPA’s
redesignation action was
‘‘constructively reopened for comment’’
given commenters’ contention that EPA
‘‘did not finalize its proposed
redesignation based on the 2019–2021
data’’ and 2022 monitoring data is ‘‘a
critical component of the 2020–2022
design value.’’ Second, commenters
reference EGLE’s January 3, 2023,
exceptional events demonstration for
the East 7 Mile monitor, and state that
‘‘they do not believe EGLE has
adequately supported its exceptional
event demonstration to meet the high
evidentiary standard required to
exclude the maximum daily 8-hour
ozone average.’’ The commenters
suggest instead that ozone
concentrations at the monitor may be
affected by the Stellantis auto assembly
complex. Third, commenters reference
the requirement at CAA section
107(d)(E)(3)(iii) that EGLE must
demonstrate that improvement in air
quality is due to permanent and
enforceable reductions in emissions,
and claim that EGLE must complete
such an analysis for 2022. Lastly,
commenters reference Executive Order
12898, and claim that finalizing this
redesignation without providing an
opportunity for public comment on
2022 data would violate EPA policy
regarding providing fair treatment and
meaningful involvement of all people.
Commenters also claim the weight-ofevidence analysis underlying EPA’s
concurrence determination on an
exceptional events demonstration is
‘‘inherently biased against
environmental justice communities.’’
Response: Many of the commenters’
contentions are based on a
misunderstanding of EPA’s
consideration of 2022 data within this
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final action. EPA is finalizing our March
14, 2022, proposed approval of EGLE’s
January 3, 2022, request to redesignate
the Detroit area based on attaining
monitoring data for 2019–2021, and
EPA’s determination that the area meets
all other requirements for redesignation
at CAA section 107(d)(3)(E). As noted
above, EPA’s determination under CAA
section 107(d)(3)(E)(i) also relies on our
final action on EPA’s concurrence of a
January 26, 2023, demonstration
submitted by EGLE, as well as
preliminary monitoring data, which
together show the area has continued to
attain the standard subsequent to the
2019–2021 period. Contrary to the
commenters’ contention that EGLE must
demonstrate that attainment in 2020–
2022 was due to permanent and
enforceable measures, EPA’s
determination under CAA section
107(d)(3)(E)(iii) is based only on the
2019–2021 period. EPA also disagrees
that the redesignation action was
‘‘constructively reopened for comment’’
given that EPA’s determination is based
on the 2019–2021 period and continued
attainment since that period, and not
based on the 2020–2022 design value.
Although this redesignation is related
to EPA’s Clean Data Determination
based on 2020 to 2022 data, regarding
the data set used for regulatory
purposes, EPA clearly and properly
proposed that action and responded to
public comments in that final
rulemaking. Further, EPA conducted
extensive public outreach during that
public comment period, including
notification of interest groups before
publication of the proposed action in
the Federal Register, creation of a
public-facing website including fact
sheets, and translation of materials into
Arabic and Spanish.39 EPA disagrees
that further public involvement is
required in order for EPA to take final
action. Public notice and opportunity to
comment were provided consistent with
applicable requirements, and further
information about additional
engagement is offered earlier in this
RTC.
Regarding commenters’ claims that
the weight-of-evidence approach of an
exceptional events demonstration is
‘‘inherently biased against
environmental justice communities,’’
the claim that EGLE’s demonstration did
not ‘‘meet the high evidentiary
standard,’’ or the claim that emissions
may be affected by the Stellantis facility,
EPA already addressed substantially
similar comments in a separate final
39 https://www.epa.gov/mi/detroit-clean-datadetermination-2015-ozone-air-quality-standard.
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rulemaking, and these comments have
no further relevance to this action.
become effective on the date of
publication of this action.
V. Final Actions
EPA is determining that the Detroit
nonattainment area is attaining the 2015
ozone NAAQS, based on quality-assured
and certified monitoring data for 2019–
2021. EPA is also approving, as a
revision to the Michigan SIP, the State’s
maintenance plan for the area. The
maintenance plan is designed to keep
the Detroit area in attainment of the
2015 ozone NAAQS through 2035. EPA
is also determining that the area meets
the requirements for redesignation
under section 107(d)(3)(E) of the CAA.
EPA is thus changing the legal
designation of the Detroit area from
nonattainment to attainment for the
2015 ozone NAAQS. Finally, EPA is
finding adequate and approving the
newly established 2025 and 2035 motor
vehicle emissions budgets. Specifically,
EPA is finding adequate and approving
the budgets for 2025 (i.e., an interim
year) and 2035 (i.e., the last year of the
maintenance plan) as proposed. The
2025 budgets are 47.86 TPSD of VOCs
and 104.35 TPSD of NOX and the 2035
budgets are 44.67 TPSD of VOCs and
102.41 TPSD of NOX including the
assigned safety margins.
In accordance with 5 U.S.C. 553(d) of
the Administrative Procedure Act
(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 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. EPA has
determined that this rule relieves a
restriction because this rule relieves
sources in the area of Nonattainment
NSR permitting requirements; instead,
upon the effective date of this action,
sources will be subject to less restrictive
PSD permitting requirements. For this
reason, EPA finds good cause under 5
U.S.C. 553(d)(1) for this action to
VI. Statutory and Executive Order
Reviews
Under the CAA, redesignation of an
area to attainment and the
accompanying approval of a
maintenance plan under section
107(d)(3)(E) are actions that affect the
status of a geographical area and do not
impose any additional regulatory
requirements on sources beyond those
imposed by State law. A redesignation
to attainment does not in and of itself
create any new requirements, but rather
results in the applicability of
requirements contained in the CAA for
areas that have been redesignated to
attainment. Moreover, the Administrator
is required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve State choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves State law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by State law.
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A. Executive Order 12866: Regulatory
Planning and Review, Executive Order
13563: Improving Regulation and
Regulatory Review, and Executive Order
14094: Modernizing Regulatory Review
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, 13563 (76 FR 3821,
January 21, 2011), and 14094 (88 FR
21879, April 11, 2023).
B. Paperwork Reduction Act
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.).
C. Regulatory Flexibility Act
This action merely approves State law
as meeting Federal requirements and
imposes no additional requirements
beyond those imposed by State law.
Accordingly, the Administrator certifies
that this rule will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.).
D. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandate as described in
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UMRA, 2 U.S.C. 1531–1538, and does
not significantly or uniquely affect small
governments. This action does not
impose additional requirements beyond
those imposed by state law.
Accordingly, no additional costs to
State, local, or tribal governments, or to
the private sector, will result from this
action.
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.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175 (65 FR 67249,
November 9, 2000), requires EPA to
develop an accountable process to
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’ This rule does not have
tribal implications, as specified in
Executive Order 13175. It will not have
substantial direct effects on tribal
governments. Thus, Executive Order
13175 does not apply to this rule.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
EPA interprets Executive Order 13045
as applying only 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. Therefore, this action
is not subject to Executive Order 13045
because it approves a State action
implementing a Federal standard.
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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 (66 FR 28355 (May 22,
2001)), because it is not a significant
regulatory action under Executive Order
12866.
I. National Technology Transfer
Advancement Act
This rulemaking does not involve
technical standards. Therefore, EPA is
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not considering the use of any voluntary
consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
February 16, 1994) 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 (people of color and/or
Indigenous peoples) and low-income
populations.
EPA believes that the human health or
environmental conditions that exist
prior to this action result in or have the
potential to result in disproportionate
and adverse human health or
environmental effects on people of
color, low-income populations and/or
Indigenous peoples. Demographic data
identifies that the Detroit area includes
communities that are pollutionburdened and underserved. Further,
EPA performed a screening-level
analysis using EPA’s EJSCREEN to
identify environmental burdens and
susceptible populations in communities
in the Detroit area.
EPA believes that this action is not
likely to change existing
disproportionate and adverse effects on
people of color, low-income populations
and/or Indigenous peoples. While EPA
recognizes the importance of assessing
impacts of our actions on potentially
overburdened communities, approval of
Michigan’s redesignation request for the
2015 ozone NAAQS would not
exacerbate existing pollution exposure
or burdens for populations in the Detroit
area.
As discussed in the Environmental
Justice Considerations section and
Response to Comments section of this
preamble, there is no information to
support a conclusion that EGLE’s
implementation of its 2015 ozone SIP,
including the maintenance plan now
being approved (including contingency
measures) would result in a disparate
impact on minority populations (people
of color and/or Indigenous peoples) and
low-income populations.
K. Congressional Review Act
This action is subject to the
Congressional Review Act, and EPA will
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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 July 18, 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
40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
40 CFR Part 81
Environmental protection, Air
pollution control, National parks,
Wilderness areas.
Dated: May 12, 2023.
Debra Shore,
Regional Administrator, Region 5.
For the reasons stated in the
preamble, title 40 CFR parts 52 and 81
are amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
2. In § 52.1170, the table in paragraph
(e) is amended under ‘‘Maintenance
Plans’’ by adding an entry for ‘‘Ozone
(8-Hour, 2015)’’ before the entry for
‘‘Particulate matter’’ to read as follows:
■
§ 52.1170
*
Identification of plan.
*
*
(e) * * *
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*
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Federal Register / Vol. 88, No. 97 / Friday, May 19, 2023 / Rules and Regulations
EPA-APPROVED MICHIGAN NONREGULATORY AND QUASI-REGULATORY PROVISIONS
Name of
nonregulatory
SIP provision
*
Applicable
geographic or
nonattainment area
*
*
State
submittal
date
EPA
approval
date
*
*
Comments
*
*
Maintenance Plans
Ozone (8-Hour, 2015) .......................
*
*
*
Detroit area (Livingston, Macomb,
Monroe, Oakland, St. Clair,
Washtenaw, and Wayne Counties).
*
*
*
*
1/3/2022
*
5/19/2023,
[INSERT
FEDERAL
REGISTER CITATION].
*
Authority: 42 U.S.C. 7401 et seq.
*
PART 81—DESIGNATION OF AREAS
FOR AIR QUALITY PLANNING
PURPOSES
3. The authority citation for part 81
continues to read as follows:
■
*
§ 81.323
*
4. Section 81.323 is amended by
revising the entry for ‘‘Detroit, MI’’ in
the table entitled ‘‘Michigan-2015 8Hour Ozone NAAQS [Primary and
Secondary]’’ to read as follows:
■
*
*
Michigan.
*
*
*
MICHIGAN—2015 8-HOUR OZONE NAAQS
[Primary and secondary]
Designation
Classification
Designated area 1
Date 2
*
*
Detroit, MI .......................................
Livingston County.
Macomb County.
Monroe County.
Oakland County.
St Clair County.
Washtenaw County.
Wayne County.
.
Date 2
Type
*
*
May 19, 2023 .................................
*
*
Type
*
Attainment.
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. 2023–10563 Filed 5–18–23; 8:45 am]
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]]>Agencies
[Federal Register Volume 88, Number 97 (Friday, May 19, 2023)]
[Rules and Regulations]
[Pages 32594-32615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10563]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2022-0004; FRL-9629-04-R5]
Air Plan Approval; Michigan; Redesignation of the Detroit, MI
Area to Attainment of the 2015 Ozone Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is finalizing its
redesignation of the Detroit, Michigan area to attainment for the 2015
ozone National Ambient Air Quality Standards (NAAQS) in accordance with
a request from the Michigan Department of Environment, Great Lakes, and
Energy (EGLE). EGLE submitted this request on January 3, 2022. EPA is
approving, as a revision to the Michigan State Implementation Plan
(SIP), the State's plan for maintaining the 2015 ozone NAAQS through
2035 in the Detroit area. EPA is also finding adequate and approving
Michigan's 2025 and 2035 volatile organic compound (VOC) and oxides of
nitrogen (NOX) motor vehicle emissions budgets (budgets) for
the Detroit area. The Detroit area includes Livingston, Macomb, Monroe,
Oakland, St. Clair, Washtenaw, and Wayne Counties.
DATES: This final rule is effective on May 19, 2023.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2022-0004. All documents in the docket are listed on
the www.regulations.gov website. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
through www.regulations.gov or at the Environmental Protection Agency,
Region 5, Air and Radiation Division, 77 West Jackson Boulevard,
Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding Federal holidays and facility
closures due to COVID-19. We recommend that you telephone 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
EPA is redesignating the Detroit area to attainment of the 2015
ozone standard, in accordance with EGLE's January 3, 2022, submission.
The background for this action is discussed in detail in EPA's
proposal, dated March 14, 2022 (87 FR 14210). In that proposal, we
noted that, under EPA's regulations at 40 CFR part 50, the 2015 ozone
NAAQS is attained in an area when the 3-year average of the annual
fourth highest daily maximum 8-hour average concentration (i.e., the
design value) is equal to or less than 0.070 parts per million (ppm),
when truncated after the thousandth decimal place, at all of the ozone
monitoring sites in the area. (See 40 CFR 50.19 and appendix U to 40
CFR part 50.) Under the Clean Air Act (CAA), EPA may redesignate
nonattainment areas to attainment if complete, quality-assured data
show that the area has attained the standard and the area meets the
other CAA redesignation requirements in section 107(d)(3)(E). The
proposed rule provides a detailed discussion of how Michigan has met
these CAA requirements and EPA's rationale for approving the
redesignation request.
As discussed in the proposed rule, quality-assured and certified
monitoring data for 2019-2021 show that the area has attained the 2015
ozone standard, and EPA has determined that the
[[Page 32595]]
attainment is due to permanent and enforceable measures. In the
maintenance plan submitted for the area, Michigan has demonstrated that
compliance with the ozone standard will be maintained in the area
through 2035. As also discussed in the proposed rule, Michigan has
adopted 2025 and 2035 VOC and NOX motor vehicle emissions
budgets for the area that are supported by Michigan's maintenance
demonstration.
Michigan has met the requirements applicable to redesignations
through various SIP submittals. On July 6, 2022 (87 FR 40097),
consistent with conditions identified in our proposed rulemaking, EPA
approved portions of separate December 18, 2020, submittals as meeting
the applicable requirements for a base year emissions inventory and an
emissions statement program. In this rulemaking EPA is also approving,
as a revision to the Michigan SIP, the State's maintenance plan for the
area. The maintenance plan is designed to keep the Detroit area in
attainment of the 2015 ozone NAAQS through 2035. Additionally, EPA is
finding adequate and approving Michigan's newly established 2025 and
2035 motor vehicle emissions budgets for NOX and VOCs for
the area. With these approvals of Michigan's SIP submissions, all SIP
requirements applicable to redesignation are fully approved.
After publication of the proposed rule, EPA finalized two
additional rulemakings related to the attainment status of the Detroit
nonattainment area. First, on February 1, 2023, EPA found that the
Detroit area failed to attain the 2015 ozone NAAQS by its Marginal
attainment date of August 3, 2021, based on the area's design value as
of the attainment date (i.e., monitoring data from 2018-2020). As a
result of that determination, the area was reclassified by operation of
law to Moderate, with SIP submissions associated with the Moderate area
classification due March 1, 2023 (88 FR 6633). As described below in
EPA's response to comments, consistent with EPA's longstanding
interpretation of CAA section 107(d)(3)(E)(ii) and (v), and as
described in the final determination and classification, EPA's role is
to assess whether Michigan adequately addressed all requirements
applicable to redesignation that applied to Detroit on the date of
EGLE's submittal (88 FR 6633, 6635). Because EGLE submitted a complete
and approvable redesignation request on January 3, 2022, the Moderate
area requirements that became due on March 1, 2023, are not applicable
for purposes of this redesignation. Second, EPA has issued a
determination that the area is attaining the 2015 ozone NAAQS based on
air quality monitoring data from 2020-2022, i.e., a clean data
determination. In issuing the clean data determination, EPA took notice
and comment on its concurrence on a January 26, 2023, exceptional
events demonstration submitted by EGLE. The demonstration requested
exclusion of wildfire event-influenced data from the 2020-2022 design
value period for the 2015 ozone NAAQS for the Detroit nonattainment
area.
II. Motor Vehicle Emission Budgets
Under section 176(c) of the CAA, new transportation plans,
programs, or projects that receive Federal funding or support, such as
the construction of new highways, must ``conform'' to (i.e., be
consistent with) the SIP. Conformity to the SIP means that
transportation activities will not cause or contribute to any new air
quality violations, increase the frequency or severity of any existing
air quality violations, or delay timely attainment or any required
interim emissions reductions or any other milestones. Transportation
conformity continues to apply in areas redesignated to attainment with
a maintenance plan, so the Detroit area will continue to be subject to
transportation conformity requirements.
As shown in Table 1, Michigan's maintenance plan includes
NOX and VOC motor vehicle emission budgets (``budgets'') for
the Detroit area for 2025, the interim year, and 2035, the last year of
the maintenance period. The budgets are the portion of the total
allowable emissions that are allocated to highway and transit vehicle
use that, together with emissions from other sources in the Detroit
area, are projected to result in air quality that either attains or
maintains the NAAQS. These budgets represent the projected 2025 and
2035 on-road emissions plus a safety margin allocation and are
consistent with the State's demonstration of maintenance of the 2015
ozone NAAQS. The safety margin and the allocation of a portion of it to
the motor vehicle emissions budgets are described below. Detailed
information on the transportation conformity program can be found in
our March 14, 2022, proposed approval of Michigan's redesignation
request (87 FR 14210).
Table 1--2025 and 2035 Budgets for the Detroit Area for the 2015 Ozone NAAQS Maintenance Plan
[Tons per summer day]
----------------------------------------------------------------------------------------------------------------
2025 Interim year 2035 Maintenance year
-----------------------------------------------------------------------------
Projected Safety Projected Safety
on-road margin Total on-road margin Total
emissions allocation budget emissions allocation budget
----------------------------------------------------------------------------------------------------------------
NOX............................... 61.20 43.15 104.35 40.30 62.11 102.41
VOCs.............................. 34.40 13.46 47.86 22.00 22.67 44.67
----------------------------------------------------------------------------------------------------------------
A ``safety margin'' is the difference between the attainment level
of emissions (from all sources) and the projected level of emissions
(from all sources) in the maintenance plan. Further, the transportation
conformity regulations allow states to allocate all or a portion of a
documented safety margin to the motor vehicle emissions budgets for an
area (40 CFR 93.124(a)). Michigan is allocating a considerable portion
of that safety margin to the mobile source sector. Specifically, in
2025, Michigan is allocating 43.15 tons per summer day (TPSD) and 13.46
TPSD of the NOX and VOC safety margins, respectively,
representing approximately 65 percent of the available safety margins,
to the motor vehicle emissions budgets. In 2035, Michigan is allocating
62.11 TPSD and 22.67 TPSD of the NOX and VOC safety margins,
respectively, representing approximately 65 percent of the available
safety margins, to the motor vehicle emissions budgets. Since only a
part of the safety margin is being used for this purpose, maintenance
requirements are still met. Once allocated to mobile sources, these
portions of the safety margins will not be available for use by other
sources.
[[Page 32596]]
III. Environmental Justice (EJ) Considerations
To identify environmental burdens and susceptible populations in
communities in the Detroit area, EPA performed a screening-level
analysis using EPA's EJ screening and mapping tool (``EJSCREEN'').\1\
EPA utilized EJSCREEN to evaluate environmental and demographic
indicators at the county level for each county within the area
(Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne
Counties).
---------------------------------------------------------------------------
\1\ See documentation on EPA's Environmental Justice Screening
and Mapping Tool at https://www.epa.gov/ejscreen.
---------------------------------------------------------------------------
EJSCREEN provides environmental indicators for 12 pollutants or
sources, which include fine particulate matter (PM2.5),
ozone, air toxics cancer risk, traffic proximity, lead paint, Superfund
site proximity, underground storage tanks, and wastewater discharge. Of
the seven counties in the Detroit area, all but St. Clair County score
at or above the 80th percentile nationally for at least one indicator:
Livingston County for Superfund site proximity and wastewater; Macomb
County for PM2.5, traffic proximity, Superfund site
proximity, and underground storage tanks; Monroe County for ozone;
Oakland County for traffic proximity, underground storage tanks, and
wastewater; Washtenaw County for underground storage tanks; and Wayne
County for PM2.5, air toxics cancer risk, traffic proximity,
lead paint, underground storage tanks, and wastewater discharge.
EPA's screening-level analysis indicates that, of the seven
counties in the Detroit area, only Wayne County scores above the
national average for the EJSCREEN ``Demographic Index'', which is the
average of an area's percent minority and percent low-income
populations, i.e., the two demographic indicators explicitly named in
Executive Order 12898. As discussed in EPA's EJ technical guidance,
people of color and low-income populations often experience greater
exposure and disease burdens than the general population, which can
increase their susceptibility to adverse health effects from
environmental stressors.\2\ As a function in part of its relatively
high demographic index, Wayne County is the only county in the Detroit
area scoring at or above the 80th percentile in at least one EJ Index,
which is derived by combining a single environmental factor with the
demographic indicator. Specifically, Wayne County has EJ Indexes above
the 80th percentile in PM2.5, ozone, traffic proximity, lead
paint, and underground storage tanks. EPA has provided that if any of
the EJ indexes for the areas under consideration are at or above the
80th percentile nationally, then further review may be appropriate.\3\
---------------------------------------------------------------------------
\2\ EPA, ``Technical Guidance for Assessing Environmental
Justice in Regulatory Analysis,'' section 4 (June 2016).
\3\ EPA, ``EJSCREEN Technical Documentation,'' appendix H
(September 2019).
---------------------------------------------------------------------------
For further review, EPA has evaluated the ozone monitor trends and
determined that all the monitors in the nonattainment area are
similarly demonstrating attainment and therefore, there is no evidence
that any one community is experiencing different air quality for this
NAAQS from another. To consider whether the improvement in air quality
has been observed throughout the area, including the portions of the
area containing communities that are pollution-burdened and
underserved, EPA conducted an additional analysis of historical ozone
design values in the Detroit area. Specifically, EPA reviewed data from
the seven monitors in the area that have been operating since the 2001-
2003 design value period: the Macomb County monitor at New Haven with
Site ID 26-099-0009, the Macomb County monitor at Warren with Site ID
26-099-1003, the Oakland County monitor at Oak Park with Site ID 26-
125-0001, the St. Clair County monitor at Port Huron with Site ID 26-
147-0005, the Washtenaw County monitor at Ypsilanti with Site ID 26-
161-0008, the Wayne County monitor at Allen Park with Site ID 26-163-
0001, and the Wayne County monitor at East 7 Mile with Site ID 26-163-
0019. Ozone design values in the Detroit area have declined
significantly from 0.097 ppm in 2001-2003 to 0.070 ppm in 2019-2021. As
shown in Table 2, the improvement in air quality has been observed at
every monitor in the Detroit area. Specifically, ozone design values at
each monitor have improved by between 20% and 31%.
Table 2--Improvement in Ozone Design Values Between the 2001-2003 Period and 2019-2021 Period
----------------------------------------------------------------------------------------------------------------
Improvement
2001-2003 2010-2012 2019-2021 between 2001-
Monitor Design value Design value Design value 2003 and 2019-
(ppm) (ppm) (ppm) 2021 (%)
----------------------------------------------------------------------------------------------------------------
New Haven............................... 0.097 0.078 0.068 30
Warren.................................. 0.095 0.079 0.066 31
Oak Park................................ 0.091 0.078 0.069 24
Port Huron.............................. 0.090 0.077 0.070 22
Ypsilanti............................... 0.091 0.076 0.066 27
Allen Park.............................. 0.084 0.074 0.067 20
East 7 Mile............................. 0.091 0.081 0.070 23
----------------------------------------------------------------------------------------------------------------
Not only have ozone design values at all monitors improved by the
relatively consistent margin of 20% to 31%, but the design values at
all monitors have been relatively consistent within each 3-year period.
IV. Response to Comments
Upon publication of the March 14, 2022, proposed rulemaking, EPA
opened a 30-day comment period, ending April 13, 2022 (87 FR 14210). On
April 4, 2022, in response to a request from Sierra Club, EPA extended
the comment period by an additional 14 days through April 27, 2022 (87
FR 19414). During the comment period EPA received three supportive
comment letters and three adverse comment letters. Two adverse comment
letters were submitted by students at the University of Michigan. The
third adverse comment letter was submitted by Sierra Club and Great
Lakes Environmental Law Center (GLELC), on behalf of themselves and 19
other groups based in Michigan. On March 14, 2023, after the close of
the comment period for this rulemaking or any rulemaking relating to
the Detroit area,
[[Page 32597]]
GLELC and Sierra Club sent what they described as ``supplemental
comments'' regarding the proposed redesignation. EPA is exercising its
discretion to respond to these comments herein. Summaries of the
adverse comments and EPA's responses are provided below.
Comment: Two students at the University of Michigan raised concerns
with EPA's proposed approval of EGLE's redesignation request. One
student shared their fear that redesignating the Detroit area could
increase ground-level ozone and suggested that deregulation in the past
has ``worsened our fight against climate change.'' The second student
raised concerns about Detroit's air quality, given the existence of
power plants and other facilities in the area. Given EPA's April 13,
2022, proposed determination that the Detroit area failed to attain the
2015 ozone NAAQS by its attainment date based on 2018-2020 data, this
student believes it is inappropriate to reevaluate the area's legal
designation at this time. This student suggested that ``legal status
should only be considered when changes have been made and have been
upheld over a substantial period of time.''
Response: These commenters raise issues that are similar to the
concerns of Sierra Club and GLELC, which we discuss more extensively
below.
A redesignation to attainment does not remove any emission control
measures for existing sources that are already adopted into the EPA
approved SIP for Michigan. As we discuss below and in the March 14,
2022, proposal, EGLE's redesignation request includes a demonstration
that attainment of the 2015 ozone NAAQS was attributable to permanent
and enforceable emissions reductions. Further, EGLE's January 3, 2022,
submission includes a plan to maintain the NAAQS through 2035 in the
Detroit area, as well as a contingency plan that would be triggered if
the area were to violate the 2015 ozone NAAQS in the future. While EPA
agrees that climate change is an important issue, this rulemaking
addresses the separate issue of the Detroit area's designation for the
2015 ozone NAAQS.
Regarding concerns about the existence of power plants and other
industrial facilities in the area, we refer the commenter to Table 2 in
EPA's March 14, 2022, proposal, which shows significant emissions
decreases in the Detroit area from 2014 to 2019. Specifically,
NOX and VOC emissions from point, nonpoint, on-road, and
nonroad sources in the Detroit area declined by 203.21 tons per ozone
season day and 104.33 tons per ozone season day, respectively, between
2014 and 2019. Decreases in NOX and VOC emissions from point
sources, which is the category including power plants, account for
69.85 TPSD and 18.50 TPSD, respectively, of the total decrease. These
emissions decreases have contributed to the gradual reductions in ozone
concentrations in the Detroit area. Further discussion of the
commenter's suggestion that EPA should delay action on Michigan's
redesignation request is found below.
A. Monitoring Data
Comment: Sierra Club and GLELC observe that the Detroit area
attained the 2015 ozone NAAQS, but they raise concerns that the
``margin for NAAQS compliance is particularly thin'' at two monitors in
the Detroit area. The commenters predict future values at which the
NAAQS would be exceeded at four monitors in the area, and raise
additional concerns that the area may violate the NAAQS during the 2022
ozone season. The commenters contend that, in order to approve a
redesignation request, EPA must find that the improvement in air
quality is ``permanent'' and the result of ``enforceable reductions to
emissions,'' and that, in this case, neither of those conditions has
been met.
Response: The 2015 ozone NAAQS is defined at 40 CFR 50.19, and
appendix U to 40 CFR part 50 contains the data handling conventions and
computations necessary for determining whether the NAAQS has been met
at a monitoring site. To attain the 2015 ozone NAAQS, the 3-year
average of the annual fourth-highest daily maximum 8-hour average ozone
concentrations (ozone design values) at each monitor must not exceed
0.070 ppm. As described in appendix U, design values are reported in
ppm to three decimal places, with additional digits to the right of the
third decimal place truncated.
The commenters conflate two separate demonstrations that are
required under the statutory criteria for redesignation. CAA section
107(d)(3)(E)(i) provides that EPA may not promulgate a redesignation to
attainment unless the Administrator ``determines that the area has
attained the national ambient air quality standard.'' In finding that
an area has met the first criterion, the statute does not require EPA
to assess how long that attainment has been occurring for or by what
margin the area is attaining. Therefore, the margin by which an area
(or monitor) attains the NAAQS is not relevant to the question of
whether or not the area is attaining the NAAQS. Separately, CAA section
107(d)(3)(E)(iii) provides that the Administrator must also determine
``that the improvement in air quality is due to permanent and
enforceable reductions in emissions resulting from implementation of
the applicable implementation plan and applicable Federal air pollutant
control regulations and other permanent and enforceable reductions.''
As used in CAA section 107(d)(3)(E), the term ``permanent'' does not
describe the improvement in air quality, as commenters suggest, but
instead describes the emissions reductions to which attainment must be
attributable.
Michigan's plan for maintaining the NAAQS is relevant under CAA
section 107(d)(3)(E)(iv), which provides that the Administrator must
fully approve ``a maintenance plan for the area as meeting the
requirements of section 175A.'' The requirement for a maintenance plan
includes the requirement for contingency provisions to be triggered
should an area violate the NAAQS after redesignation, which illustrates
that the CAA anticipates some possibility that areas may in the future
violate the NAAQS despite meeting all requirements under CAA section
107(d)(3)(E). In this final rule EPA is approving EGLE's plan for
maintaining the NAAQS through 2035, as described below and in the
proposed rule.
B. Planning Requirements
Comment: Sierra Club and GLELC raise concerns that redesignation
``could jeopardize public health by unnecessarily delaying needed air
quality planning requirements.'' The commenters note EPA's separate
proposal to reclassify the Detroit area as Moderate, which would
trigger new requirements for SIP submissions. The commenters allege
that redesignation would ``prematurely halt ongoing planning efforts to
reduce NOX and VOCs'' and without a nonattainment
designation the State will face ``no obligation to select or implement
any of these control measures to assure ozone levels are maintained
below the NAAQS.'' The commenters allege that although ``similar
discussions and planning might resume upon redesignation to
nonattainment, there could be several years of delay in the meantime
while excess ozone levels endanger public health.'' The commenters
reference requirements for Reasonably Available Control Technology
(RACT), and the potential for reductions in NOX emissions
from the Monroe power plant, claiming that this facility emitted 15,219
tons of NOX in 2014.
[[Page 32598]]
Response: In a separate rulemaking published April 13, 2022, EPA
proposed to reclassify the Detroit area as Moderate, based on air
quality data from 2018-2020 showing the Detroit area failed to attain
the 2015 ozone NAAQS by its Marginal attainment date. EPA finalized the
reclassification as Moderate on February 1, 2023, and established a
deadline of March 1, 2023, for most SIP revisions associated with
Moderate area requirements, including requirements for an attainment
plan and RACT. However, upon the effective date of this redesignation
to attainment, nonattainment requirements, including Moderate area
requirements, will no longer apply to the Detroit area.
As described below, if the Detroit area violates the 2015 ozone
NAAQS after this redesignation, then Michigan would be required to
implement its contingency plan to bring the area back into attainment.
The contingency provisions submitted by EGLE include adoption or
expansion of NOX RACT rules and/or VOC RACT rules for
existing stationary sources. This is the construct of the CAA with
regard to redesignated attainment areas to provide for protections
associated with air quality in designated attainment areas. It should
be noted that many sources that would be subject to VOC RACT under the
2015 ozone NAAQS have implemented VOC controls as required by the rules
Michigan adopted to meet VOC RACT requirements under the 1979 ozone
NAAQS. See 59 FR 46182, September 7, 1994.
To illustrate the example of a facility with high NOX
emissions which could be subject to additional control requirements,
the commenters reference the Monroe power plant, and incorrectly claim
this facility emitted 15,219 tons of NOX in 2014. According
to EPA's 2014 National Emissions Inventory (NEI), the Monroe power
plant emitted 8,320 tons of NOX in 2014.\4\ A separate data
source, EPA's Clean Air Markets Program Data (CAMPD), shows a similar
result of 8,296 tons of NOX in 2014.\5\ However, as shown in
the CAMPD database, more recent emissions data indicate reduced
NOX emissions and improved control efficiency at this
facility. NOX emissions from the Monroe facility declined by
45% between 2014 and 2021, even though heat input declined by only 5%
over the same period.\6\ Because heat input corresponds to power
generation, these data show that the significant decrease in
NOX emissions was not due to significantly decreased
operation of the facility. Rather, the decrease in NOX
emissions is attributable to increased efficacy of pollution control
equipment that was installed and operated to reduce NOX
emissions. Specifically, Monroe power plant has Selective Catalytic
Reduction (SCR) NOX controls on all four units. The most
recent installation of SCR was in November of 2014, and therefore would
have been minimally represented in the 2014 emissions data. As
discussed in more detail further below, these significant reductions in
NOX emissions from Electric Generating Units (EGUs) such as
the Monroe facility can be attributed to permanent and enforceable
measures such as the Cross-State Air Pollution Rule (CSAPR), which is a
Federal rule that established emissions budgets designed to incentivize
the installation and operation of emissions controls.
---------------------------------------------------------------------------
\4\ https://www.epa.gov/air-emissions-inventories/2014-national-emissions-inventory-nei-data.
\5\ https://campd.epa.gov/.
\6\ In 2014, heat input was 157,824,072 Metric Million British
Thermal Units (MMBtu) and NOX emissions were 8,296 tons.
In 2021, heat input was 149,865,102 MMBtu and NOX
emissions were 4,544 tons.
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The commenters also raise concerns that implementation of Moderate
area requirements could be delayed by a violation of the 2015 ozone
NAAQS subsequent to redesignation. The commenters speculate that under
this scenario EPA would redesignate the area to nonattainment in 2023
and set a new attainment date for three years later, which would be
2026. As discussed below, under the CAA, a violation of the NAAQS after
redesignation to attainment does not trigger an automatic redesignation
to nonattainment. Rather, as discussed above, the initial required
action under such circumstances would be the State's implementation of
the contingency provisions in a State's approved maintenance plan for
the relevant NAAQS, and Michigan's maintenance plan here would require
the State to implement the contingency provisions more quickly than the
three-year timeline identified by the commenters. The redesignation of
an area to nonattainment under section 107(d)(3) is discretionary, and
could take significantly longer whether initiated at the request of the
State or by EPA itself.
C. Environmental Justice Concerns
Comment: The commenters state that EPA must consider environmental
justice in this action, as much of the nonattainment area contains
already overburdened communities facing disproportionate environmental
impacts. The commenters reference various rates of asthma incidence
across demographic or geographic groups, including asthma rates in
Detroit that are higher than rates in the rest of Michigan, and rates
of asthma hospitalizations within both Wayne and Washtenaw counties
that are higher for Black children relative to white children. The
commenters also raise concerns that ``the asthma burden in Detroit
appears to be worsening'' and reference statistics showing that asthma
rates for adults in Detroit increased from 15.5% in 2016 to 16.2% in
2021. In support of their comments, the commenters reference a peer-
reviewed study from 2009 associating ozone exposure with health effects
on adults with asthma in Atlanta. Additionally, the commenters contend
that EPA has not followed the portion of Executive Order 12898 that
calls for ``meaningful involvement'' from impacted communities beyond
the minimum requirements for a rulemaking. The commenters further
contend that EPA ``must also consider Title VI of the Civil Rights Act
in evaluating the disproportionate consequences of prematurely
approving'' the redesignation request. Commenters cite 40 CFR 7.35(b)
to state that EGLE cannot use ``criteria or methods of administering
its program which have the effect of subjecting individuals to
discrimination because of their race, color, [or] national origin''.
Commenters then state that ``[g]iven the links between ozone pollution
and asthma as well as the racial disparities regarding asthma burdens
in Michigan, there is significant risk of EPA's decision violating
Title VI's prohibition'' against administering programs in a manner
that has a discriminatory effect. Commenters end this portion of the
comments by stating, ``It's unclear how, if at all, EGLE or EPA
accounted for the Title VI requirements and ensured compliance in
regards to this proposal.''
Response: EPA is committed to the meaningful involvement and fair
treatment of vulnerable populations disproportionately affected by
pollution. EPA does not agree with all of the commenters'
characterizations in this letter. EPA has considered both environmental
justice and title VI of the Civil Rights Act in the context of this
action, and an overview of EPA's considerations of both are described
below. Further, EPA has complied with public notice and comment
requirements for this action.
With regard to EPA's consideration of environmental justice, EPA is
aware of the demographic data for the Detroit nonattainment area that
is the subject of this final action. EPA acknowledges that the Detroit
area includes communities that are pollution-burdened and underserved.
As described above, EPA considered this information as it
[[Page 32599]]
pertains to actions being taken in this action, and further discussion
on this consideration is below in this response.
Consistent with regulatory obligations associated with this action,
EPA held a public notice and comment period for this action. In
addition, EPA conducted related outreach with Detroit community
members, advocacy groups, and local government officials, regarding air
quality issues that have been identified as priorities by these
stakeholders. In a meeting EPA held with representatives from the City
of Detroit, Michigan Environmental Council, GLELC, Southwest Detroit
Environmental Vision, and the Ecology Center regarding a separate
regulatory action, following a presentation by EPA and a roundtable
discussion with these stakeholders, EPA solicited opinions from these
stakeholders regarding topics for future meetings.\7\ EPA suggested
three topics: permitting, enforcement and inspections, and ground-level
ozone, which we explained included our proposed redesignation. Of those
stakeholders who shared an opinion, all voiced interest in topics other
than ozone, and no stakeholders indicated an interest in future
engagement on ozone. Through community engagement, EPA took steps to
understand different levels of public interest for different
rulemakings that were impacting the Detroit, MI area on more than one
topic around the same time (which was in addition to public notice and
comment requirements).
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\7\ See Appendix A to May 11, 2023, memorandum entitled
``Memorandum to the Docket: Technical Support Document for the
Detroit Redesignation to Attainment for the 2015 Ozone National
Ambient Air Quality Standard'' (hereafter referred to as May 11,
2023, TSD).
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In addition to communicating directly with stakeholders, EPA went
beyond the obligations of notice-and-comment rulemaking by issuing a
press release on the day the proposed redesignation was published in
the Federal Register.\8\ The press release was picked up by The Detroit
News, one of the area's two major newspapers.\9\ In its article, The
Detroit News noted that EPA would be accepting public comments on the
proposed redesignation. Additionally, on April 4, 2022, EPA extended
the comment period on the proposed redesignation by 14 days, in
response to a request from Sierra Club for additional time to ``fully
review the basis for EPA's proposal and confer with local partners''
given Sierra Club's suggestion that the proposed action was a
``consequential decision impacting environmental justice communities.''
---------------------------------------------------------------------------
\8\ https://www.epa.gov/newsreleases/epa-and-michigan-propose-detroit-now-meets-federal-air-quality-standard-ozone.
\9\ https://www.detroitnews.com/story/news/environment/2022/03/14/pollution-reduction-prompts-epa-improve-metro-detroits-air-quality-rating/7041856001.
---------------------------------------------------------------------------
With regard to the comments concerning the demographics of the
community and asthma burdens in the area, EPA considered a variety of
relevant factors in its determination to propose approval of the
Detroit area redesignation and maintenance plan. Importantly, the
comment letter indicates that EPA is now ``prematurely'' approving the
request for redesignation. As is explained throughout this action, this
action is not premature. Rather, it is consistent with the applicable
requirements of the CAA for an area to qualify for a redesignation.
This redesignation request recognizes that the area has achieved a
national ambient air quality standard and alters the designation of the
area; however, applicable emission reduction measures remain in effect,
as do contingency provisions in the maintenance plan now being approved
that will be triggered if the area fails to continue to attain the
standards. Additional information is provided below in this response to
comment.
Further, under section 109 of the CAA, EPA sets primary, or health-
based, NAAQS for all criteria pollutants to provide requisite
protection of public health, including the health of at-risk
populations, with an adequate margin of safety. It establishes
secondary, or welfare-based, standards to provide requisite protection
of public welfare from any known or anticipated adverse effects of the
criteria pollutant in ambient air. In EPA's October 26, 2015,
rulemaking strengthening the ozone NAAQS to the level of 0.070 ppm, we
provided a detailed rationale for the Administrator's determination
that the 2015 ozone NAAQS would be protective of public health (80 FR
65292). This rationale included explicit consideration of protection
for people, including children, with asthma.
EPA considered commenters' concerns regarding asthma rates and
considered that information in light of the action being finalized. As
we explained in the October 26, 2015, rulemaking, asthma is a multi-
etiologic disease, and air pollutants, including ozone, represent only
one potential factor that may trigger an asthma exacerbation.
Importantly, as is explained throughout this action, if, following
redesignation, there are increases in ozone that result in a violation
of the 2015 ozone standard, the contingency provisions of the
maintenance plan would trigger additional actions by EGLE.
In support of their comments, the commenters reference a peer-
reviewed study from 2009 associating ozone exposure with health effects
on adults with asthma in Atlanta.
As we noted in a Technical Support Document in the docket folder
for the June 4, 2018, rulemaking designating the Detroit area as
nonattainment for the 2015 ozone standard, the 2014-2016 design value
for the area was 0.073 ppm (83 FR 25776). As noted above, the 2019-2021
design value is 0.070 ppm. The commenters do not clarify how the ozone
levels in the area might be a primary cause or primary contributor to
the increase in asthma rates they cite as occurring over that same
period (between 2016 and 2021).
As discussed above, the entire Detroit area is attaining the 2015
ozone NAAQS, which EPA established to provide requisite protection of
public health, including the health of at-risk populations, with an
adequate margin of safety.
EPA also reviewed current and upcoming emission reduction measures
that are anticipated to further mitigate pollution issues in the
Detroit area. Existing Federal mobile source and point source emission
reduction programs will result in ongoing NOX and VOC
emissions reductions in the Detroit area. For example, NOX
cap and trade programs such as CSAPR continue to achieve emissions
reductions that are protective of human health regardless of whether
EPA redesignates downwind areas for any NAAQS. In addition, the Federal
Good Neighbor Plan for the 2015 ozone NAAQS is projected to achieve
emissions reductions that will provide health benefits to populations
living in proximity to covered facilities beginning in the 2023 ozone
season. Further, Michigan has submitted a maintenance plan that
projects continuing reductions in NOX and VOC emissions
through 2035 from the point, nonpoint, on-road, and nonroad categories,
based on outputs from EPA's MOVES3 and 2016v2 modeling platforms.
In addition, EPA is now approving the contingency provisions in
Michigan's maintenance plan for the Detroit area. As noted elsewhere in
this rulemaking if the Detroit area were to violate the 2015 ozone
NAAQS after redesignation, then Michigan would be required to correct
the violation by expeditiously implementing the contingency provisions
in its maintenance plan. EPA reviewed the contingency provisions
submitted by EGLE, and found that many of these actions would benefit
[[Page 32600]]
pollution-burdened and underserved communities that may be located near
heavily industrial areas (i.e., fuel and diesel retrofit programs,
which may have significant impacts around truck corridors and rail
yards).
Turning to the issues raised regarding title VI of the Civil Rights
Act of 1964 (title VI), EPA does not agree with commenters'
characterization of potential concerns raised under title VI. Title VI
prohibits discrimination by recipients of EPA financial assistance on
the basis of race, color, or national origin. Under EPA's
nondiscrimination regulations, which implement title VI and other civil
rights laws,\10\ recipients of EPA financial assistance are prohibited
from taking actions in their programs or activities that are
intentionally discriminatory and/or have an unjustified disparate
impact.\11\ Because EPA is not a recipient of Federal financial
assistance, title VI does not apply to EPA itself. EPA carries out its
mandate to ensure that recipients of EPA financial assistance comply
with their nondiscrimination obligations by investigating
administrative complaints filed with EPA alleging discrimination
prohibited by title VI and the other civil rights laws; \12\ initiating
affirmative compliance reviews; \13\ and providing technical assistance
to recipients to assist them in meeting their title VI obligations.
Importantly, compliance with the CAA does not constitute compliance
with title VI.
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\10\ 40 CFR part 7 and part 5.
\11\ 40 CFR 7.30 and 7.35.
\12\ 40 CFR 7.120.
\13\ 40 CFR 7.115.
---------------------------------------------------------------------------
As part of this redesignation, EPA is approving the maintenance
plan for the area, including contingency provisions, which will be
incorporated into the SIP. Title VI does apply to EGLE as a recipient
of Federal financial assistance.
In the context of SIP actions, EPA has evaluated issues similar to
the title VI comments through CAA section 110(a)(2)(E)(i). See, e.g.,
77 FR 65294 (October 26, 2012); 87 FR 60494 (October 5, 2022). EPA has
previously acknowledged that it has not issued national guidance or
regulations concerning implementation of section 110(a)(2)(E) as it
pertains to consideration of title VI and disparate impacts on the
basis of race, color, or national origin in the context of the SIP
program. 87 FR at 60530. Such guidance is forthcoming and will address
CAA section 110(a)(2)(E)'s necessary assurance requirements as they
relate to title VI.
In the context of a SIP action, however, section 110(a)(2)(E)
requires that a State provide ``necessary assurances'' that the SIP
submission at issue would not result in violations of any State or
Federal law. Thus, as the commenters suggest, a relevant inquiry for
EPA in this rulemaking is whether the air agency has provided adequate
necessary assurances that implementation of the content of the SIP
submission at issue is not prohibited by title VI (i.e., implementation
of the SIP would not result in an unjustified adverse disparate impact
on the basis of race, color, or national origin). See, e.g., CAA
section 110(a)(2)(E)(i).
This redesignation action, at its core, recognizes that an area is
meeting the NAAQS and has all the required CAA measures in place,
including the required maintenance plan with contingency provisions.
The contingency provisions of the maintenance plan would require
additional control measures in the event that a future design value for
the area exceeds the level of the ozone standard, or if the fourth-
highest monitored value, averaged over two years, is 0.071 ppm or
higher.\14\ In this action, the plan being finalized includes required
contingency provisions (as was described above) as well as additional
ozone related measures already approved into the SIP due to prior ozone
standards (also described earlier in this action).
---------------------------------------------------------------------------
\14\ The list of potential contingency provisions is provided in
EGLE's submittal dated January 3, 2022. They include: Adoption of or
updating of VOC or NOX Reasonable Available Control
Technology (RACT) rules for existing sources covered by USEPA
Control Technique Guidelines, Alternative Control Guidelines, or
other appropriate guidance issued after the 1990 CAA, such as VOC
RACT for increased methane leak monitoring and repair at oil and gas
compressor stations, automobile and light-duty truck assembly
coatings, miscellaneous metal and plastic parts coatings, paper,
film, and foil coatings, miscellaneous industrial adhesives, or
industrial cleaning solvents, or NOX RACT for stationary
internal combustion sources, utility boilers, process heaters, iron
and steel mills, or glass manufacturing; Applying VOC RACT on
existing smaller sources; Implementing alternative fuel and diesel
retrofit programs for fleet vehicle Operations; Requiring VOC or
NOX control on new minor sources (less than 100 tons per
year); Increasing the VOC or NOX emission offsets for new
and modified major sources; Reducing idling programs; Trip reduction
programs; Traffic flow and transit improvements; Working with the
Michigan Department of Licensing and Regulatory Affairs to encourage
natural gas utilities to increase turnover of legacy distribution
pipelines; Stationary engine controls to reduce formaldehyde and
NOX Emissions; Phase 2 AIM rules; Phase 5 Consumer
Products rules; and additional measures as identified by EGLE.
---------------------------------------------------------------------------
For all these reasons, there is no information to support a
conclusion that EGLE's implementation of this SIP submittal, including
the maintenance plan now being approved (including contingency
provisions), would result in an unjustified disparate impact or is
otherwise prohibited by title VI of the Civil Rights Act. Thus, EPA is
not requiring any further necessary assurances at this time for
purposes of compliance with section 110(a)(2)(E)(i).
D. Trend in Design Values
Comment: The commenters contend that EPA does not have sufficient
data to determine that the 2021 emission reductions were part of a
downward trend, as the fourth highest recorded concentration increased
at all monitor locations except St. Clair County between the years of
2019 and 2020. As the 2018-2020 design values show nonattainment at
half of the monitor locations in the area, the commenters contend that
there is no reason to believe that the 2019-2021 design values will be
representative of future ozone concentrations.
Response: Attainment of the 2015 ozone NAAQS, like the 1997 ozone
NAAQS and 2008 ozone NAAQS before it, is measured by averaging the
annual fourth-highest daily maximum 8-hour average concentrations over
a 3-year period. In our rulemaking promulgating the 1997 ozone NAAQS,
EPA noted the ``lack of year-to-year stability'' inherent to the prior
1979 ozone NAAQS, and determined that a form including a 3-year average
would ``provide some insulation from the impacts of extreme
meteorological events that are conducive to ozone formation.'' (62 FR
38856, July 18, 1997). Similarly, when EPA revised the NAAQS in 2008,
we recognized ``that it is important to have a form that is stable and
insulated from the impacts of extreme meteorological events that are
conducive to ozone formation. Such instability can have the effect of
reducing public health protection, because frequent shifting in and out
of attainment due of meteorological conditions can disrupt an area's
ongoing implementation plans and associated control programs. Providing
more stability is one of the reasons that EPA moved to a concentration-
based form in 1997.'' (73 FR 16435, March 27, 2008). In our October 26,
2015, rulemaking which retained the form of the 1997 ozone NAAQS and
2008 ozone NAAQS but strengthened the NAAQS to the level of 0.070 ppm,
EPA found that the three-year average ``provides an appropriate balance
between public health protection and a stable target for implementing
programs to improve air quality.'' We therefore observe that as a
general matter, EPA designed the form of the 2015 ozone NAAQS to
accommodate some year-to-year variation in ozone concentrations. The
[[Page 32601]]
design value is intended to be the simple average of the annual fourth-
highest daily maximum 8-hour average concentrations over the 3-year
period, with no special consideration given to any of those three
years. When we structured the form of the 2015 ozone NAAQS, EPA created
no requirement that for a monitor or an area to attain the standard, a
downward trend must be observed within the 3-year period.
Over a longer period, however, EPA has observed a clear downward
trend in ozone design values in the Detroit area. In evaluating the
commenters' claims regarding trends in ozone concentrations, EPA
reviewed past data from all monitors in the Detroit area. These data
cover the period ending with the most recent design value period, which
is 2020-2022, and starting with the design value period that was the
basis of our nonattainment designation for the 1997 ozone NAAQS, which
was 2001-2003 (69 FR 56697, September 22, 2004). The historic ozone
design values for the seven-county Detroit area are summarized in Table
3. For each 3-year period, the design value is determined by the
monitor or monitors with the highest 3-year averaged concentration. For
all 3-year periods, the highest design value was observed at one or
more of the following five monitors: Port Huron, East 7 Mile, New
Haven, Allen Park, or Warren.
Table 3--3-Year Average of the Fourth-Highest Daily Maximum 8-Hour Ozone
Concentrations (Ozone Design Values) for the Detroit Area
------------------------------------------------------------------------
Average fourth-highest
3-Year period daily maximum 8-hour ozone
concentration (ppm)
------------------------------------------------------------------------
2001-2003.................................. 0.097
2002-2004.................................. 0.092
2003-2005.................................. 0.090
2004-2006.................................. 0.082
2005-2007.................................. 0.086
2006-2008.................................. 0.082
2007-2009.................................. 0.080
2008-2010.................................. 0.075
2009-2011.................................. 0.078
2010-2012.................................. 0.081
2011-2013.................................. 0.077
2012-2014.................................. 0.074
2013-2015.................................. 0.072
2014-2016.................................. 0.073
2015-2017.................................. 0.073
2016-2018.................................. 0.074
2017-2019.................................. 0.072
2018-2020.................................. 0.071
2019-2021.................................. 0.070
2020-2022.................................. 0.070
------------------------------------------------------------------------
As shown in Table 3, ozone design values in the Detroit area have
declined significantly from 0.097 ppm in 2001-2003 to 0.070 ppm in
2019-2021, and 2020-2022. On this point, we agree with the commenters'
statement that ``there is no doubt that, in general, ozone precursor
emissions have decreased over the past two decades as noted by the
studies and that, as a result, ozone concentrations have decreased.''
This decrease is clear across the overall time period presented in
Table 3.
However, as also shown in Table 3, EPA has sometimes observed an
increase in ozone design values, such as the increase from 0.073 ppm in
2015-2017 to 0.074 ppm in 2016-2018. In EPA's view, fluctuation in
design values over a shorter period does not detract from the overall
trend in air quality improvements over a longer period. On three
occasions, at the 2004-2006, 2008-2010, and 2013-2015 3-year periods,
the design value reached a new low, before experiencing an increase in
the subsequent 3-year period. However, after each of these occasions,
the design value returned to its low point within several years and did
not exceed that low point for a second time. This is consistent with
national decreasing trends in ozone concentrations which face some
year-to-year variability in measured concentrations.\15\ Interannual
variability is expected even when there are longer-term downward trends
driven by emissions reductions (Strode et al., 2015; \16\ Simon et al.,
2015 \17\). This suggests that, despite variability within a 3-year
period and occasionally across several 3-year periods, historic
permanent and enforceable emissions reductions have been effective in
reducing ozone concentrations in the area, and these reduced ozone
concentrations have become more durable as the associated control
programs have progressed through implementation. As we discuss below,
if a future design value in the Detroit area exceeds the level of the
2015 ozone NAAQS, then implementation of Michigan's contingency
provisions, combined with the ongoing implementation of State and
Federal control measures documented in EGLE's maintenance plan, would
be the appropriate remedy.
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\15\ https://www.epa.gov/air-trends/trends-ozone-adjusted-weather-conditions.
\16\ Strode, S.A., Rodriguez, J.M., Logan, J.A., Cooper, O.R.,
Witte, J.C., Lamsal, L.N., Damon, M., Van Aartsen, B., Steenrod,
S.D., and Strahan, S.E.: Trends and variability in surface ozone
over the United States, J. Geophys. Res.-Atmos., 120, 9020-9042,
https://doi.org/10.1002/2014JD022784, 2015.
\17\ Heather Simon, Adam Reff, Benjamin Wells, Jia Xing, and
Neil Frank, Ozone Trends Across the United States over a Period of
Decreasing NOX and VOC Emissions, Environmental Science &
Technology, 2015 49(1), 186-195.
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E. Timeline
Comment: The commenters suggest that EPA should wait until the end
of the 2022 ozone season to act upon the redesignation request.
Response: EPA is finalizing this action after considering the
additional year of monitoring data from 2022. In our separate
rulemaking finalizing a
[[Page 32602]]
clean data determination for the Detroit area, EPA has found that the
area continued to attain the standard for the 2020-2022 period, which
is one year beyond the 2019-2021 period which is the basis of the
State's redesignation request.
F. Meteorology
Comment: The commenters stated that EPA did not fully consider
unusually favorable meteorological conditions as the cause for
decreased ozone concentrations, since EPA relies on temperature studies
done by EGLE and the Lake Michigan Air Directors Consortium (LADCO)
that consider long-term ozone concentrations rather than concentrations
during the design value years. Additionally, the commenters contend
that although temperature is a large factor in the creation of ozone,
there are other factors that should be considered. While factors
besides temperature were considered for the LADCO study, they were only
considered through 2019 and did not include 2020 or 2021, and the
commenters stated that the higher 2021 humidity levels could have
contributed to decreased ozone concentrations. Lastly, the commenters
also claim that EPA did not account for ``how lower than average
temperatures and fewer days above 80 degrees Fahrenheit have impacted
ozone concentrations'' and that ``2019 appears to have been a year with
exceptionally few high temperature days. In that year, there were only
76 days with a maximum temperature equal to or above 80 degrees
Fahrenheit, which is the lowest total since 2009.'' Broadly, the
commenters question if EGLE and EPA have appropriately considered
whether temperature and other meteorological conditions, as opposed to
emissions reductions, were the cause of lower ozone concentrations.
Response: The analyses of long-term meteorological trends including
both Michigan's meteorological analysis and LADCO's classification and
regression tree (CART) analysis helps to illustrate the cause for
decreasing ozone concentrations over time in the Detroit area.
Additionally, EPA's Trends in Ozone Adjusted for Weather Conditions
show that while the Detroit area benefited from unconducive meteorology
in 2019, the weather adjusted ozone trends show that meteorological
conditions were more conducive than average in 2020. Thus, the area did
not experience three consecutive years of unconducive meteorology in
2019-2021, therefore the meteorology for the 3-year period as a whole
was not ``unusual''.\18\
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\18\ https://www.epa.gov/air-trends/trends-ozone-adjusted-weather-conditions.
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Michigan's January 3, 2022, submittal presents LADCO's CART
analysis for years 2005 through 2019, which evaluates 21 separate
meteorological factors that can influence ozone formation in Detroit.
This analysis ranks each variable by its relative importance. The most
important factor in ozone formation in Detroit is Average PM
Temperature, which is assigned a relative importance level of 1.000.
Closely following Average PM Temperature are Max Daily Temperature, Max
Apparent Temperature, and Average AM Temperature which are all assigned
relatively high variable importance to ozone formation. The last of
these four, Average AM Temperature, has a relative importance level of
0.9273. After this variable, there is a steep drop-off before arriving
at the importance of the fifth variable, which is Average Wind South
Vector with a relative importance level of 0.5763. In other words, the
top four variables all relate to temperature, and these temperature
variables are much more important than any other variable. As shown in
LADCO's CART analysis for 2005 through 2019, temperature is the peak
driving meteorological factor determining ozone formation in the
Detroit area. Additionally, EPA's weather adjusted ozone trends, which
go through 2021, also have daily max temperature as the most important
variable at every site in the Detroit area. The next five are PM wind
direction, AM wind speed, mid-day relative humidity and 24-hour
transport direction, in varying orders of importance for individual
ozone sites.
In evaluating the commenters' concerns that LADCO's CART analysis
included data only through 2019, EPA reviewed a CART analysis which
LADCO prepared more recently, and which analyzes data for 2005 through
2020. Inclusion of the more recent year does not support commenters'
broader claims regarding meteorological impacts during the design value
period. Rather, inclusion of the more recent year only reinforces the
finding that variables relating to temperature are more important than
any other meteorological variable in determining ozone formation in the
Detroit area. In the newer analysis, LADCO evaluated a new variable,
Average Apparent Temperature, which is grouped with the other four
variables relating to temperature as the most important variables
affecting ozone formation in Detroit, ahead of the variable for Average
Wind South Vector and other less-important variables relating to
factors such as precipitation and humidity.
Michigan's analysis for the years 2000-2021 considered temperature
during the ozone season and its relationship with ozone concentrations.
The State found that ozone concentrations declined over this period,
even though temperatures increased over the same period. It is
important to keep in mind that high ozone cannot form in the absence of
precursor emissions. Michigan's finding is consistent with LADCO's CART
analysis for the 2005-2019 period in the Detroit area, which shows that
when the influence of meteorological variability is largely removed,
ozone concentrations declined regardless, indicating that the downward
trend in ozone levels is attributable to reductions in precursor
emissions.
However, the commenters raise the concern that the State did not
consider a wider breadth of meteorological factors besides temperature
in 2020 and 2021. The commenters suggest that there may have been
unanalyzed unusual meteorological conditions that might have affected
ozone concentrations. The commenters state that there may have been
higher levels of humidity in Detroit during the ozone season which may
have depressed ozone formation in the area. To support this claim, the
commenters present a graph of Hourly Humidity Comfort Levels
Categorized by Dew Point for summers 2020 and 2021 in Detroit.\19\
However, a presentation of dew point data does not illustrate anything
useful about humidity levels, because dew point values are a function
not only of humidity data but also of temperature data. In other words,
a high dew point value may be caused by high temperatures, even if
relative humidity is held constant. The commenters also fail to provide
an analysis of humidity levels for previous years to back up their
claim that humidity levels in 2020 and 2021 were unusual relative to
historical levels. Regardless, meteorologically adjusted trends always
show negative relationships between both relative humidity (RH) and
ozone and dewpoint and ozone (meaning higher RH and dewpoint are
associated with lower ozone), while temperature and ozone always have a
positive relationship (higher temperature is associated with
[[Page 32603]]
higher ozone). As explained above, other meteorological factors had a
greater influence on Detroit ozone as evidenced by Michigan's, LADCO's
and EPA's analyses.
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\19\ In the narrative section of their comment letter, the
commenters include the incorrect chart for summer 2021. However, in
a footnote, the commenters include a URL to the correct chart.
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EPA does not agree that we failed to provide significant evidence
that the improvement in air quality is not attributed to unusual
meteorological circumstances. EPA relied on Michigan's analysis and the
LADCO CART analysis to conclude that air quality improvement has been a
constant trend when meteorology is controlled for variance. The
commenters have not presented any compelling evidence that the 2019-
2021 design value period had unusual meteorology. Additionally, EPA's
Trends in Ozone Adjusted for Weather Conditions corroborates these
analyses.
As exhibited in LADCO's CART analysis, Detroit has seen decreasing
ozone concentrations even when controlling for meteorological variance
between 2005-2019. As presented in Michigan's analysis, ozone
concentrations have been decreasing between 2000-2021 despite
increasing temperatures in Detroit. This helps us conclude that the
long-term trend of decreasing ozone concentrations can be attributed to
decreases in ozone precursors and not because of meteorological
factors. Additionally, EPA's Trends in Ozone Adjusted for Weather
Conditions corroborates these analyses. EPA agrees with Michigan's
conclusion that the air quality improvement in the Detroit area was
caused by reductions in ozone precursors and not unusually favorable
meteorological conditions.
G. Economic Conditions
Comment: The commenters contend that EPA's determination that
improved air quality during 2019-2021 was caused by permanent and
enforceable emissions reductions program has no basis because EPA did
not fully evaluate whether decreased economic activity from the COVID-
19 pandemic caused improved air quality in the Detroit area. The
commenters suggest that effects of the COVID-19 pandemic on power plant
emissions and automobile travel may be the likely cause of the
reductions rather than the cited enforceable reduction measures.
Specifically, the commenters raise concerns that reductions in vehicle
miles traveled and emissions of ozone precursor emissions occurring in
2020 and 2021 were likely caused by the COVID-19 pandemic. The
commenters conclude that EPA failed to consider an important aspect of
the problem in not fully considering the impact of the pandemic in
EPA's proposed rulemaking to redesignate the Detroit area to attainment
of the 2015 ozone NAAQS.
Response: EPA recognizes the difficulties in assessing the impacts
of the COVID-19 pandemic on ozone precursor emissions and ozone design
values and the economic disparities from the COVID-19 pandemic, but we
do not agree that the Detroit area's attainment is due to a temporary
economic downturn associated with the COVID-19 pandemic. As discussed
in the March 14, 2022, proposed rulemaking, we think that EGLE's
submission and the rationale provided in EPA's proposal establishes
that the area's attainment is due to the cited permanent and
enforceable reductions and not temporary adverse economic conditions.
In their January 3, 2022, submittal, EGLE evaluated whether the
improvement in air quality was caused by temporary adverse economic
conditions, especially the economic conditions associated with the
COVID-19 pandemic which first impacted Michigan in 2020. EGLE charted
point source VOC and NOX emissions in the Detroit area from
2012 to 2020. These two charts show the overall downward trend in point
source emissions from 2012 to 2020. EGLE also evaluated both employment
levels and VMT. While employment levels in the Detroit area were
affected by COVID-19 and saw a 27 percent decrease in employment from
March 2020 to April 2020, employment returned to 85 percent of March
2020 levels by June 2020, according to Bureau of Labor and Statistics
(BLS) Quarterly Census of Employment and Wages.\20\ Employment levels
continued to increase through 2022, and as of March 2021 and March
2022, employment levels in the Detroit area were 93 and 99 percent of
the employment in February 2020, before the onset of the COVID-19
pandemic, respectively. As noted by EGLE in their submission, the
analysis performed by the Southeast Michigan Council of Governments
(SEMCOG) indicated a reduction of less than 5 percent of VMT in 2020
based on their travel demand forecasting model.
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\20\ See www.bls.gov/cew.
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Nevertheless, in response to this comment, EPA has performed
additional analyses that further support our determination.
The commenters highlight nationally decreased power plant emissions
during the COVID-19 pandemic recession beginning in 2020 and cite point
source reductions that occurred from 2019 to 2020. EPA therefore
analyzed total heat input from EGUs across the State of Michigan from
2018 to 2022 to investigate whether Detroit's attainment of the NAAQS
during the 2020 ozone season could be attributable to economic effects
from the COVID-19 pandemic.\21\ Of the five years of data examined, our
analysis found that April 2020 had the single lowest total monthly heat
input for EGUs located in the seven Southeast Michigan counties in the
Detroit area. This monthly value is correlated with the strongest
economic effects that could be attributable to lockdown orders,
declining employment figures, or decreases in vehicle miles traveled,
as discussed later in this section. However, we note that the total
monthly heat input at these power plants began rebounding in May 2020
and increased to an annual peak in July 2020. This pattern of monthly
total heat inputs increasing from April onwards and peaking in July or
August is consistent with annual trends over the five-year period for
both EGUs in the seven-county Detroit area and across the State as a
whole. The ozone monitoring season runs from March 1 to September 30 in
Michigan, but the meteorology most conductive to conditions that could
result in exceedances of the NAAQS typically occurs in summer months of
May through July. EPA's analysis shows that while there was a
pronounced effect on electricity production at EGU facilities in the
Detroit area in April 2020, emissions activity from these sources
increased in subsequent months following the same monthly patterns that
were observed in 2018 and 2019. Moreover, we note similar annual
patterns of EGU activity peaking in July or August continued again in
2021 and 2022. Therefore, EPA does not agree that economic effects of
the COVID-19 pandemic on power plant emissions are responsible for the
Detroit area's attainment of the NAAQS in 2020 or any year thereafter
rather than the permanent and enforceable emissions reductions
described in the notice of proposed redesignation.
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\21\ See Appendix B to May 11, 2023, TSD.
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In response to the commenters concerns that 2021 emissions were
still impacted by the pandemic, EPA additionally examined emissions
from EGUs in Michigan subject to the Cross-State Air Pollution Rule
NOX Annual Program, and found that there were similar annual
NOX emissions in 2021 relative to 2019, 31,743 tons per year
(tpy) versus 31,123 tpy, respectively.\22\
[[Page 32604]]
EPA further evaluated coal consumption for electric power, which the
commenters note was still lower in 2021 as compared to 2019 likely due
to the pandemic. Calculations show that 2021 consumption was 97 percent
of the level of coal consumption in 2019 in Michigan.\23\ In May 2021,
one of the largest coal-fired EGU facilities in the area, DTE River
Rouge, permanently retired. The shutdown of this facility was estimated
by EGLE to achieve annual reductions of 2,716 tons of NOX.
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\22\ See Appendix C to May 11, 2023, TSD.
\23\ See Energy Information Administration, Coal Data Browser
(Data Set: Total Consumption, Electric Power), https://www.eia.gov/coal/data/browser/.
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EPA also analyzed the pandemic's impact on traffic in response to
the commenters' assertion that automobile travel ``plunged'' in 2020 as
a result of the pandemic, using data from StreetLight,\24\ which is an
on-demand mobility analytics platform that uses data from mobile
devices. We found that traffic did decrease during the pandemic, but
largely returned to pre-pandemic levels by the time of year that
meteorological conditions are most conducive to ozone formation. As
shown in the StreetLight data, the seven-county Detroit area
experienced a drop in VMT during the period of the stay-at-home order,
beginning March 23 and ending June 1. However, beginning in June 2020,
VMT was comparable to VMT levels before the start of the pandemic.\25\
This is significant because EPA has found that in the upper Midwest,
the majority of ozone exceedances occur in late May though late
July.\26\ In addition, border crossing information, provided by SEMCOG,
shows that heavy duty truck VMT remained near pre-pandemic levels in
2020. Given the many mobile source reduction measures in place in
Michigan, EPA does not conclude that the reductions achieved are based
on a brief period of decreased VMT in 2020 due to the COVID-19
pandemic.
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\24\ See https://www.streetlightdata.com/. EPA would not rely on
StreetLight for the purpose of generating inventories, such as the
inventories submitted by EGLE. However, this data source has a
reasonable accuracy that is sufficient for the purpose of assessing
claims made by the commenters regarding temporal changes in VMT
during the COVID-19 pandemic. EPA believes this source of data is
usable for this analysis in part because StreetLight data has very
good performance when compared against traditional manual traffic
counts, with an R[caret]2 value of 0.9782. StreetLight has been
utilized by many departments of transportation at the State and
Federal level. See https://www.streetlightdata.com/transportation-planning-case-studies/.
\25\ See Appendix D to May 11, 2023, TSD.
\26\ See Appendix E to May 11, 2023, TSD.
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Another important aspect of the economic changes that occurred
during the COVID-19 pandemic in the Detroit area, which the commenters
do not address, is that manufacturing processes in the Detroit area did
not stop during the pandemic, but rather shifted towards new processes
related to the pandemic. For example, the Oakland County Board of
Commissioners appropriated over 300,000 dollars to six facilities to
begin production on personal protection equipment (PPE) such as face
masks and ventilator equipment.\27\ Ford Motor Company and General
Motors Corporation (GM) worked to reallocate their production to
ventilators, which began training by April 2020. GM also began
producing face masks by March 27, 2020 and worked with a local
automation company to create an assembly line capable of producing
50,000 masks a day.\28\ Several nonprofit groups worked to assist
manufacturing facilities in shifting to production of surgical masks
and gowns, such as the Industrial Sewing and Innovation Center (ISAIC),
working with the City of Detroit, Michigan Economic Development
Corporation, and others to establish efficient and automated production
methods, noting that this effort was ``a way to keep people employed,
and at the same time protecting people that are working on the front
lines.'' \29\ Carhartt worked with ISAIC, and offered one floor of
their Detroit store to the nonprofit for factory space for this
initiative, which received funding to produce 1 million surgical masks
per month. These efforts speak to the rebounding of Detroit's
employment rates post pandemic and highlight nonprofit work that drove
much of the initiative to shift production. While the commenters
highlight the highest single quarterly drop in Gross Domestic Product
(GDP) of 31.4 percent in the second quarter of 2020, it is important to
note the highest single quarterly increase in GDP in the third quarter
of 2020, of 33.1 percent,\30\ noted in the same report by the
Congressional Research Service. Efforts such as those seen in Detroit
have likely aided this rebound.
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\27\ See https://www.clickondetroit.com/news/local/2020/05/04/oakland-county-funds-manufacturers-to-switch-production-to-medical-equipment-protective-gear.
\28\ See https://www.assemblymag.com/articles/95741-manufacturers-shift-to-ppe-production-to-fight-covid-19-pandemic.
\29\ See https://www.modeldmedia.com/features/detroit-apparel-manufacturers-coalition.aspx.
\30\ See Congressional Research Service, Covid-19 and the U.S.
Economy, https://crsreports.congress.gov/product/pdf/R/R46606.
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EPA does not agree that the Detroit area's attainment is due to a
temporary economic downturn associated with the COVID-19 pandemic, but
rather believes the Federally enforceable emission reduction measures
were the main driving factor in the area coming into attainment.
H. Federal Control Programs
Comment: The commenters contend that EPA did not demonstrate that
the Federal good neighbor rules and mobile source standards were key
elements of the ozone reductions. The commenters assert that most of
these rules were implemented and would have had emissions impacts prior
to 2019, and even prior to 2018, and yet ozone concentrations increased
in 2020 and most of the monitors in the area continued to be in
nonattainment based on design values for the years 2018-2020. The
commenters conclude that these facts undermine EPA's finding that the
reduced ambient concentrations in 2019-2021 are in fact attributable to
regulations that went into effect from 2004-2017. Additionally, the
commenters contend that EPA relied on overall pollution reductions from
the CSAPR Update, which covers areas that are downwind of the Detroit
area. The commenters point out that EPA did not determine whether
reductions in emissions specifically causing nonattainment in Southeast
Michigan will occur, and that, because the CSAPR Update is a cap-and-
trade program, facilities contributing to Detroit's ozone problem could
comply with the rule by purchasing allowances, rather than reducing
emissions. The commenters claim that ``reliance on these rules is
illogical, incomplete, and fails to satisfy the requirements for
redesignation.''
Response: Regarding EPA's mobile source standards, the commenters
have incorrectly interpreted the timeline by which emissions reductions
are achieved. The full benefit of these programs does not occur in the
first year that a rule is effective, or even within the years that
manufacturers must first begin manufacturing vehicles or engines in
accordance with EPA's rules. These mobile source measures have resulted
in, and continue to result in, large reductions in NOX
emissions over time due to fleet turnover (i.e., the replacement of
older vehicles that predate the standards with newer vehicles that meet
the standards). Emissions reductions from these programs are modeled by
EPA's 2016v2 platform and the MOVES3 mobile source emission modeling
system, which we discuss below in greater detail. In our March 14,
2022, proposed rulemaking, in our discussions of Tier 3 motor vehicle
emission standards as well as rules for heavy-duty diesel engines,
nonroad diesel engines, large
[[Page 32605]]
spark-ignition engines, and marine diesel engines, we noted that some
of these emission reductions occurred by the attainment years and
additional emission reductions will occur throughout the maintenance
period, as older vehicles or engines are replaced with newer, compliant
model years. It is incorrect that, by pointing out that the Detroit
area did not attain the standard immediately upon promulgation or
implementation of these rules, the commenters have demonstrated that it
is ``illogical'' or ``incomplete'' for EPA to rely on these rules as
permanent and enforceable emissions reductions as required by CAA
section 107(d)(3)(E).
We also disagree that it was ``illogical,'' ``incomplete,'' or
otherwise inappropriate for EPA to point to emissions reductions
resulting from the Revised CSAPR Update as contributing to the Detroit
area's attainment. First, we note that EPA did not only cite the
Revised CSAPR Update; we also pointed to the historical and/or ongoing
Federal programs such as the Clean Air Interstate Rule (CAIR), CSAPR,
CSAPR Update, and Revised CSAPR Update, all of which addressed the
interstate transport requirements of CAA section 110(a)(2)(D) and
reduced ozone precursor emissions in the eastern United States over the
relevant time period.
First, we note that multiple Federal Circuit Courts of Appeal have
reviewed similar arguments challenging whether it is reasonable for EPA
to rely upon regional interstate transport cap-and-trade programs as
part of the cause of an area's attainment, and those courts have upheld
EPA's reliance. See Sierra Club v. EPA, 774 F.3d 383 (7th Cir. 2014);
Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015). Arguments raised in
those cases were remarkably similar to commenters' contentions here:
``Sierra Club criticizes EPA's reliance on the NOX SIP Call,
because that program is aimed at reducing pollution in the region as a
whole and permits the twenty-two affected states to purchase pollution
`allowances' from one another. Accordingly, Sierra Club believes that
the effects on any one area in particular are not necessarily permanent
and enforceable.'' Sierra Club v. EPA, 774 F.3d at 397. The Seventh
Circuit noted that the overall structure of the trading program ensured
a regional reduction in emissions, and that ``it is reasonable to rely
on the program as one basis, among many, for concluding that reduced
emissions levels will persist.'' Id. at 399. The Sixth Circuit
similarly upheld challenges to EPA's reliance on interstate transport
trading programs in a redesignation as one of the causes of an area's
attainment. Sierra Club v. EPA, 793 F.3d at 665-68.
While commenters are correct that sources may comply with the
Revised CSAPR Update by purchasing allowances rather than reducing
emissions, the Revised CSAPR Update trading region (which includes
Michigan and is currently comprised of 12 states in the eastern United
States) is subject to an overall reduction in emissions via the State-
level emissions budgets and assurance levels in that program.
Commenters are not correct that EPA did not analyze whether reductions
are and were required from states upwind of Michigan in the Revised
CSAPR Update. While the Detroit area was not identified as having
receptors in that rule, emission reductions required of Michigan and
other states included in the Revised CSAPR Update will still result in
air quality benefits in the Detroit area, due to the regional nature of
ozone and ozone precursor transport.
Further, the control of ozone season NOX emissions under
the Good Neighbor Provision of the CAA will be continued and improved
through the more recent final Good Neighbor Plan for the 2015 ozone
NAAQS, which was signed on March 15, 2023.\31\ This rule, as
promulgated, is set to control ozone season NOX emissions
from power plants through a revised trading program beginning in 2023
and through emissions limits on certain other industrial sources
beginning in 2026. The initial control stringency for power plants is
based on the level of reductions achievable through immediately
available measures, including consistently operating already-installed
emissions controls. Power plant emissions budgets then decline over
time based on the level of reductions achievable through phased
installation of state-of-the-art emissions controls starting in 2024.
The Good Neighbor Plan covers sources in Michigan, Ohio, Indiana, and
Illinois, among other states. The final rule includes additional
features to the trading program for power plants that promote
consistent operation of emissions controls to enhance public health and
environmental protection for the affected downwind regions and will
also benefit local communities, including:
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\31\ See https://www.epa.gov/csapr/good-neighbor-plan-2015-ozone-naaqs.
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A backstop daily emissions rate in the form of a 3-for-1
allowance surrender for emissions from large coal-fired units that
exceed a protective daily NOX emissions rate. This backstop
would take effect in 2024 for units with existing controls and one year
after installation for units installing new controls, but no later than
2030;
Annually recalibrating the size of the emissions allowance
bank to maintain strong long-term incentives to reduce NOX
pollution;
Annually updating emissions budgets starting in 2030 to
account for changes in power generation, including new retirements, new
units, and changing operation. Updating budgets may start as early as
2026 if the updated budget amount is higher than the State emissions
budgets established by the final rule for 2026-2029.
The commenters' concerns about prior NOX cap and trade
programs are misplaced, and these programs, up through the Revised
CSAPR Update, can be counted on to deliver ozone air quality benefits.
We continue to find it reasonable to rely on emissions reductions from
these programs as one of the measures contributing to the attainment of
this area. The more recent Good Neighbor Plan for the 2015 ozone NAAQS
signed in March 2023 builds on these programs and will deliver
continued assurance that permanent and enforceable emissions reductions
providing air quality benefits to Detroit (among many other areas) will
continue to be realized.
I. Maintenance Plan Contingency Provisions
Comment: The commenters contend that the contingency measure
triggers in Michigan's maintenance plan are insufficient. The
commenters conclude that the warning level response trigger of a 1-year
4th high daily maximum 8-hour average of 74 parts per billion (ppb) and
the action level response trigger of a 4th high daily maximum 8-hour
average monitoring value averaged over two years of 71 ppb or more are
too lenient, and essentially meaningless given the current margin of
attainment in the area. The commenters note that when considering
current monitoring data, even a single monitoring value of 71 ppb in
2022 would result in a violation of the NAAQS and trigger a
nonattainment designation.
Response: EPA disagrees with the commenters' contention that the
contingency measure triggers are inadequate. Under the CAA, a violation
of the NAAQS subsequent to redesignation to attainment does not trigger
an automatic redesignation to nonattainment. As demonstrated by the
contingency provisions requirement in section 175A(d), the CAA clearly
anticipates and provides for situations where an area might monitor a
violation
[[Page 32606]]
of the NAAQS after having been redesignated to attainment. Section
175A(d) of the CAA states that in the event of a NAAQS violation after
an area is redesignated to attainment a State is required to implement
additional contingency provisions. Under this section of the CAA,
states are not obligated to implement additional emission controls if
an area is ``threatened'' with a future ozone standard violation.
However, EPA does encourage the states to take preventative measures to
prevent future ozone standard violations if at all possible, but does
not definitively require the states to implement the identified
contingency provisions unless a violation of the standard has actually
occurred. See September 4, 1992, memorandum from John Calcagni entitled
``Procedures for Processing Requests to Redesignate Areas to
Attainment'' (Calcagni memorandum) at 12. Michigan's commitment to
respond to triggers of a 1-year 4th high daily maximum 8-hour average
of 74 parts per billion (ppb) and a 4th high daily maximum 8-hour
average monitoring value averaged over two years of 71 ppb or more in
addition to responding to a violation of the 2015 ozone NAAQS goes
beyond the minimum requirements of section 175A(d).
Comment: The commenters contend that the maintenance plan allows
Michigan too much discretion in selecting and implementing contingency
provisions, stating that the language does not commit Michigan to
implementing any control measures and lacks specificity as to which
measures should be implemented in response to different levels of
increasing ozone pollution. The commenters further argue that the 18-
month timeline allowed from the triggering event to implementation of a
contingency measure is too long, stating that a nonattainment
designation for the area would be finalized by the time a contingency
measure is implemented.
Response: The commenters overlook the provisions of the CAA
applicable to contingency provisions. Section 175A(d) provides that
``[e]ach plan revision submitted under this section shall contain such
contingency provisions as the Administrator deems necessary to assure
that the State will promptly correct any violation of the standard
which occurs after the redesignation of the area as an attainment
area.'' (emphasis added). Thus, Congress gave EPA discretion to
evaluate and determine the contingency provisions EPA ``deems
necessary'' to assure that the State will promptly correct any
subsequent violation. EPA has long exercised this discretion in its
rulemakings on section 175A contingency provisions in redesignation
maintenance plans, allowing as contingency provisions commitments to
adopt and implement in lieu of fully adopted contingency measures, and
finding that implementation within 18 months of a violation complies
with the requirements of section 175A. See past redesignations, e.g.,
Columbus, OH 2015 ozone standard (84 FR 43508, August 21, 2019),
Shoreline Sheboygan County, WI 2008 ozone standard (85 FR 41405, July
10, 2020), Columbus, OH, 2008 ozone standard (81 FR 93631, December 21,
2016), Cincinnati, OH-IN, 2008 ozone standard (81 FR 91035, December
16, 2016, and 82 FR 16940, April 7, 2017), Cleveland, OH 2008 ozone
standard (82 FR 1603, January 6, 2017), St. Louis, MO-IL 2008 ozone
standard (83 FR 8756, March 1, 2018), Chicago-Gary-Lake County, IL-IN
1997 ozone standard (75 FR 26113, May 11, 2010, and 77 FR 48062, August
13, 2012), Milwaukee-Racine, WI 1997 ozone standard (77 FR 45252, July
31, 2012), and Detroit-Ann Arbor, MI 1997 ozone standard (74 FR 30950,
June 29, 2009).
Section 175A does not establish any specific deadlines for
implementation of contingency provisions after redesignation to
attainment. It also provides far more latitude than does section
172(c)(9), which applies to a different set of contingency measures
applicable to nonattainment areas. Section 172(c)(9) contingency
measures must ``take effect . . . without further action by the State
or [EPA].'' By contrast, section 175A confers upon EPA the discretion
to determine what constitutes adequate assurance, and thus permits EPA
to take into account the need of a State to assess, adopt and implement
contingency provisions if and when a violation occurs after an area's
redesignation to attainment. Therefore, in accordance with the
discretion accorded it by statute, EPA may allow reasonable time for
states to analyze data and address the causes and appropriate means of
remedying a violation. In assessing what ``promptly'' means in this
context, EPA also may take into account time for adopting and
implementation of the appropriate measure. Cf. Greenbaum v. EPA, 370
F.3d 527, 541 (6th Cir. 2004).
As discussed in the proposed rule at 87 FR 14218, EPA has
determined that Michigan's maintenance plan comports with the
requirements set forth at section 175A of the CAA. The contingency plan
portion of Michigan's maintenance plan delineates the State's planned
actions in the event of future 2015 ozone standard violations or
increasing ozone levels threatening a subsequent violation of the ozone
standard.
Michigan has developed a contingency plan with two levels of
triggered actions. A warning level response is triggered if a 4th high
daily maximum 8-hour average ozone concentration of 74 ppb or greater
occurs within the maintenance area. If a warning level response is
triggered, Michigan will conduct a study to determine whether the ozone
value indicates a trend toward higher ozone values and whether
emissions appear to be increasing. The study will evaluate whether the
trend, if any, is likely to continue and, if so, the control measures
necessary to reverse the trend. Michigan commits to implementing
necessary controls within 18 months.
An action level response is triggered if: (1) a two-year average of
the 4th high daily maximum 8-hour average ozone concentration at a
monitor within the maintenance area is 71 ppb or greater; or (2) if a
violation of the 2015 ozone NAAQS is monitored within the maintenance
area. If an action level is triggered and is not found to be due to an
exceptional event,\32\ malfunction, or noncompliance with a permit
condition or rule requirement,\33\ Michigan will determine what
additional control measures are needed to assure future attainment of
the 2015 ozone NAAQS.
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\32\ Should Michigan believe an action level response was
triggered by an exceptional event, Michigan would need to submit an
exceptional event demonstration in accordance with EPA's Exceptional
Events Rule codified at 40 CFR 50.1, 50.14, and 51.930. Should EPA
concur with the demonstration, the event-affected air quality data
would be excluded from the data set used for certain regulatory
decisions. Removal of such data would affect the monitoring values
used to determine whether an action level response was triggered.
Should EPA non-concur on the exceptional event demonstration or
should an action level response still be triggered after removal of
the affected data, Michigan would be required to address the action
level trigger with control measures sufficient to return the area to
attainment of the 2015 NAAQS.
\33\ Should Michigan find that an action level response is
triggered by malfunction or noncompliance with a permit or rule
requirement, enforcement action or other measures to ensure an
expeditious return to compliance may constitute an appropriate
response to the trigger. Note that depending on the circumstances of
the trigger, the appropriate response may be a combination of
compliance assurance and contingency provision implementation.
---------------------------------------------------------------------------
Michigan's contingency plan for the Detroit area lists a number of
possible contingency provisions. The list of possible contingency
provisions in Michigan's plan include the following: (1) VOC or
NOX RACT rules for existing sources covered by Control
Technique Guidelines, Alternative Control Guidelines, or other
appropriate
[[Page 32607]]
guidance; (2) application of VOC RACT on existing smaller sources; (3)
alternative fuel and diesel retrofit programs for fleet vehicle
operations; (4) VOC or NOX control on new minor sources
(less than 100 tons per year); (5) increased VOC or NOX
emission offsets for new and modified major sources; (6) reduced idling
programs; (7) trip reduction programs; (8) traffic flow and transit
improvements; (9) increased turnover of legacy natural gas distribution
pipelines; (10) stationary engine controls to reduce formaldehyde and
NOX emissions; (11) phase 2 architectural and industrial
maintenance coatings (AIM) rules; (12) phase 5 consumer products rules;
and, (13) additional measures as identified by EGLE. EGLE may also
consider the timing of an action level trigger and determine if
additional, significant new regulations not currently included as part
of the maintenance provisions will be implemented in a timely manner
and will constitute the response.
Upon triggering an action level response, Michigan may find that
choosing a contingency provision from the list included in the
maintenance plan is not necessary because there are significant new
regulations already adopted that will address the elevated ozone
levels. This does not mean that Michigan would be choosing not to
implement control measures in response to a triggering event. A State
can choose as its contingency provision any adopted but not fully
implemented control measure providing that it is not included in the
calculation of the maintenance inventory. The emissions reductions from
these programs are real, not considered in maintenance plan emissions
projections, and can be achieved more quickly since the State has
already gone through the adoption process. To prohibit a State from
using any control measure adopted prior to the actual triggering of a
maintenance plan contingency provision would only penalize states that
are proactive in addressing anticipated air quality problems.
Michigan's maintenance plan calls for the appropriate contingency
provisions to be implemented within 18 months of a triggering event. In
order to properly deal with potential future ozone standard violations
and to comply with its own internal rulemaking procedure requirements,
Michigan requires time to evaluate potential controls and provide
public notice and public participation in the rulemaking process when
adopting contingency provisions. The commenters provided no rationale
for why a time period shorter than 18 months to adopt and implement
contingency provisions is warranted. EPA finds that 18 months, as
described in Michigan's maintenance plan, is a reasonable time period
for Michigan to meet its regulatory obligations while meeting the
requirement under section 175A to promptly correct a potential
monitored violation. This timeframe also conforms with EPA's many prior
rulemakings on acceptable schedules for implementing section 175A
contingency provisions as noted above.
Comment: The commenters argue that the maintenance plan should
address the possibility of a violation of the NAAQS by committing
Michigan to an expedited nonattainment designation process if that
occurs.
Response: Under the CAA, a violation of the NAAQS subsequent to
redesignation to attainment does not trigger an automatic redesignation
to nonattainment. As demonstrated by the contingency provisions
required by section 175A(d), the CAA clearly anticipates and provides
for situations where an area might monitor a violation of the NAAQS
after having been redesignated to attainment, and leaves it to the
Administrator to determine whether redesignation to nonattainment and a
new nonattainment plan SIP submission is necessary in such cases.
Michigan's maintenance plan also accounts for this possibility by
including a violation of the NAAQS as an action level trigger requiring
the implementation of control measures to reduce ozone precursor
emissions and bring the area back into attainment. Finally, EPA retains
its authority under CAA section 107(d)(3)(A) to initiate a
redesignation ``on the basis of air quality data, planning and control
considerations, or any other air quality-related considerations the
Administrator deems appropriate.'' Given this underlying authority, and
the uncertainty of any cause of a potential future violation, we do not
agree that it is necessary or appropriate to include the suggested
commitment in the State's maintenance plan.
J. Maintenance Plan Modeling Platform
Comment: The commenters argue that because EGLE's 2019 emissions
inventory shows emissions lower than in EPA's Emissions Inventory
System, the 2016v2 model that EGLE used may be underpredicting
emissions, which would impact the future emissions projections.
Response: The commenters misunderstand how 2016v2 emissions data
are being used in the context of this redesignation. Air emissions
modeling platform development is the process of preparing emission
inventories for use in air quality models. Air quality models typically
require hourly, gridded emissions of specific pollutants. An emissions
modeling platform (hereafter referred to as emissions platform or
platform) is the full set of emissions inventories, other data files,
software tools, and scripts that process the emissions into the form
needed for air quality modeling. Each platform relies on a version of
the NEI for most of its data, although some adjustments are made to
support air quality modeling. The 2016v2 platform incorporates
emissions based on: MOVES3, the 2017 NEI nonpoint inventory (both
anthropogenic and biogenic), the Western Regional Air Partnership oil
and gas inventory, and updated inventories for Canada and Mexico. The
2016v2 platform includes emissions for the years 2016, 2023, 2026, and
2032. Methodologies are documented in the technical support document
for the 2016v2 platform. The commenters have articulated no specific
problems with any of the 2016v2 platform emission inventories or with
the methodologies used to develop them.
EPA policy, as set forth in the Calcagni memorandum, and
longstanding practice allows states to demonstrate maintenance by
preparing an attainment emissions inventory corresponding to the period
during which the area monitored attainment and to demonstrate
maintenance by showing that future emissions are projected to remain
below this level for ten years following redesignation.
Following this policy, Michigan selected a 2019 emission inventory
to represent attainment level VOC and NOX emissions, which
is appropriate because it is one of the years in the period used to
demonstrate monitored attainment of the NAAQS. In developing the 2019
attainment inventory for the Detroit area, Michigan interpolated
between the 2016 and 2023 2016v2 platform inventories for point,
nonpoint and nonroad inventories. For on-road emissions estimates,
SEMCOG used EPA's MOVES3 model to generate emissions with local travel
inputs including vehicle population, VMT, speeds, road types, Vehicle
Hours of Travel, and vehicle age, as well as meteorological data. To
demonstrate maintenance through 2035, Michigan developed emission
inventories for 2035 and an interim year of 2025. To estimate point,
nonpoint and nonroad emissions, Michigan used 2016v2 platform
inventories. Specifically, for the 2025 interim year, Michigan
interpolated between 2023 and 2026 2016v2 platform inventories. For the
maintenance year, Michigan extrapolated to 2035 using the
[[Page 32608]]
2026 and 2032 2016v2 platform inventories. For on-road emissions in
2025 and 2035 SEMCOG used EPA's MOVES3 model to generate emissions with
local travel inputs as described above. When comparing emissions
between attainment year 2019 and maintenance year 2035, VOC and
NOX emissions decrease by 34.88 TPSD and 99.55 TPSD,
respectively. Michigan's maintenance demonstration clearly follows the
process set forth in the Calcagni memorandum, showing that future
emissions are projected to decrease and remain below the level of the
attainment inventory. Again, the commenters articulated no specific
problems with Michigan's maintenance plan inventories or methodologies
and suggested nothing specific that should have been done to improve
those inventories.
In questioning the validity of these inventories for demonstrating
maintenance, the commenters pointed to EPA's review of point source
emissions data submitted through EIS. The commenters mistakenly
inferred that EPA found all the inventories Michigan submitted based on
the 2016v2 platform to underestimate emissions in comparison to EIS
data. This is not the case. In reviewing Michigan's submission, EPA
only compared the interpolated point source inventories for 2019
submitted by EGLE against point source emissions information available
to EPA through EIS. EPA converted annual emission totals to a value of
tons per ozone season day using the same conversion factors calculated
by EGLE. Michigan's interpolated inventory estimates 2019
NOX and VOC point source emissions to be 97.01 tons per
ozone season day and 13.74 tons per ozone season day, respectively.
Using EIS reported point source data and conversion factors, EPA
estimated 2019 NOX and VOC point source emissions to be
102.27 tons per ozone season day and 29.42 tons per ozone season day,
respectively. While EIS-based 2019 point source estimates differed from
estimates based upon interpolation between 2016v2 platform years,
Michigan's maintenance demonstration remains valid. Regardless of
whether EGLE had chosen to use point source emissions from EIS or from
the 2016v2 platform in compiling its inventory for the 2019 attainment
year, projected emissions for 2025 and future years would be well below
the attainment inventory, as is demonstrated in Tables 4 and 5.
Further, beyond making the statement that ``the 2016v2 model may be
underpredicting emissions,'' the commenters offer no substantive
evidence to support this conclusion.
Table 4--Detroit NOX Emissions for 2019 Attainment Year (With EIS and 2016v2 Point Source Emissions), 2025
Interim Year, and 2035 Maintenance Year
[Tons per ozone season day]
----------------------------------------------------------------------------------------------------------------
2019 Net change (2019-2035)
--------------------------- ---------------------------
Category 2016v2 2025 2035 2016v2
EIS point interpolated EIS point interpolated
source point source source point source
----------------------------------------------------------------------------------------------------------------
Point.............................. 102.27 97.01 80.8 76.44 -25.83 -20.57
Nonpoint........................... 27.98 27.98 27.39 25.84 -2.14 -2.14
On-road............................ 105.80 105.80 61.20 40.30 -65.50 -65.50
Nonroad............................ 22.51 22.51 17.49 15.17 -7.34 -7.34
----------------------------------------------------------------------------
Total.......................... 258.56 253.30 186.91 157.75 -100.81 -95.55
----------------------------------------------------------------------------------------------------------------
Table 5--Detroit VOC Emissions for 2019 Attainment Year (With EIS and 2016v2 Point Source Emissions), 2025
Interim Year, and 2035 Maintenance Year
[Tons per ozone season day]
----------------------------------------------------------------------------------------------------------------
2019 Net change (2019-2035)
--------------------------- ---------------------------
Category 2016v2 2025 2035 2016v2
EIS point interpolated EIS point interpolated
source point source source point source
----------------------------------------------------------------------------------------------------------------
Point.............................. 29.42 13.74 14.1 14.12 -15.30 0.38
Nonpoint........................... 134.77 134.77 134.12 133.11 -1.66 -1.66
On-road............................ 51.70 51.70 34.40 22.00 -29.70 -29.70
Nonroad............................ 30.46 30.46 27.39 26.56 -3.90 -3.90
----------------------------------------------------------------------------
Total.......................... 246.35 230.67 209.97 195.79 -50.56 -34.88
----------------------------------------------------------------------------------------------------------------
Michigan's maintenance plan projected that in 2035, the area would
see an overall reduction in NOX and VOC emissions of 95.55
and 34.88 TPSD, relative to the 2019 attainment inventory. More than
half of these reductions are attributable to the on-road sector with
projected decreases of 65.50 and 29.70 TPSD in NOX and VOC,
respectively. The on-road sector was not interpolated or extrapolated.
It was run using EPA's MOVES3 model and area specific data, which was
not called into question by the commenters. The difference between
interpolating point source emissions for 2019 rather than using
emissions reported through EIS does not change the fact that projected
emissions for future years 2025 and 2035 are below the level of the
attainment inventory.
Comment: The commenters contend that the 2016v2 emissions platform-
based air quality model predictions of ozone concentration decreases
through 2023 appear overly optimistic, as the majority of the
reductions would need to occur in the next two years. The commenters
contend that unrealistic
[[Page 32609]]
predictions by the air quality model render suspect Michigan's reliance
on the 2016v2 emissions platform for its attainment projections and
that EPA should explain how it can assure the improvements in air
quality predicted by the air quality model.
Response: To clarify, Michigan and EPA are not relying on the air
quality modeling's predictions (i.e., the projected future design
values) to meet the CAA's requirement that the maintenance plan provide
for maintenance of the NAAQS for ten years following redesignation.
Michigan only used the emissions inventories generated for the 2016v2
platform and is not relying on the results of the air quality model
(i.e., the modeled future design values that are estimated using the
air quality modeling performed using that emissions platform). We do
not agree that EPA has an obligation to assure the air quality model's
predicted design values come to pass.
A maintenance demonstration need not be based on modeling. See Wall
v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v. EPA, 375 F. 3d 537
(7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19, 2001),
and 68 FR 25413, 25430-25432 (May 12, 2003). EPA policy and
longstanding practice allows states to demonstrate maintenance by
preparing an attainment emissions inventory corresponding to the period
during which the area monitored attainment and to project maintenance
by showing that future emissions are projected to remain below this
level for the next ten years. See Calcagni memorandum. Holding
emissions at or below the level of attainment is adequate to reasonably
assure continued maintenance of the standard. See 65 FR 37879, 37888
(June 19, 2000).
Comment: The commenters also express concern that some of the
regulatory actions assumed in the 2016v2 emissions platform may not be
implemented in the event of a change in Administration, causing
emissions to rise.
Response: As noted above, EPA's longstanding practice is to permit
states to ``provide for the maintenance of the NAAQS'' as required by
CAA 175A by comparing current attainment emission inventories with
projected future inventories. Inherent in the act of projection is some
uncertainty; in order to accurately project future year inventories,
the Agency must make assumptions that cannot be made enforceable, such
as expectations about population growth and energy demand. We would
also note that, as commenters point out, even adopted, enforceable
measures can be revised. For the 2016v2 emissions platform, future year
emissions were projected from the 2016 base case either by running
models to estimate future year emissions from specific types of sources
or by adjusting the base year emissions according to the best estimate
of changes expected to occur in the intervening years. Rules and
specific legal obligations that go into effect in the intervening
years, along with anticipated changes in activity of the sector (e.g.,
source retirements) were incorporated when possible. Documentation of
the specific methodologies used to develop future year emissions for
the 2016 emissions platform can be found in the technical support
document for the 2016v2 platform. EPA contends that the methods used to
develop the 2016v2 emissions platform were appropriate and it was
reasonable for Michigan to use those emissions in developing
inventories for the Detroit maintenance plan.
K. Approval of Infrastructure SIP
Comment: The commenters state that EPA must find that the State
``has met all requirements applicable to the area for the purposes of
redesignation under section 110 and part D'' of the CAA, which the
commenters allege includes having an approved infrastructure SIP
pursuant to CAA section 110(a)(2). The commenters allege that EPA's
approval of Michigan's infrastructure SIP for the 2015 ozone NAAQS was
entered in error, due to an oversight in failing to review and respond
to comments from Sierra Club. The commenters allege that ``unless and
until EPA reissues an approval that properly considers and responds to
this comment, EPA should not consider Michigan to have an approved
ozone infrastructure SIP for the purposes of redesignation.''
Response: As we noted in our March 14, 2022, proposed rulemaking,
SIP requirements that are not linked with the area's ozone designation
and classification are not ``applicable'' measures to evaluate when
reviewing a redesignation request for the area under CAA section
107(d)(3)(E)(ii) and (v). We noted that section 110(a)(2)(D)
requirements, like many section 110(a)(2) requirements, continue to
apply to a State regardless of the designation of any one particular
area within the State, and thus are not applicable requirements for
purposes of redesignation. See 65 FR 37890 (June 15, 2000), 66 FR 50399
(October 19, 2001), 68 FR 25418, 25426-27 (May 13, 2003). In addition,
EPA believes that other section 110 elements that are not connected to
an area's ozone nonattainment designation are not applicable
requirements for purposes of redesignation. The area will still be
subject to these requirements after the area is redesignated to
attainment of the 2015 ozone NAAQS. This approach is consistent with
EPA's interpretation of the applicability of conformity requirements
for purposes of CAA section 107(d)(3)(E)(ii) and (v), as well as with
section 184 ozone transport requirements. See Reading, Pennsylvania
proposed and final rulemakings (61 FR 53174-53176, October 10, 1996 and
62 FR 24826, May 7, 1997), Cleveland-Akron-Loraine, Ohio final
rulemaking (61 FR 20458, May 7, 1996), and Tampa, Florida final
rulemaking (60 FR 62748, December 7, 1995). See also the discussion of
this issue in the Cincinnati, Ohio ozone redesignation (65 FR 37890,
June 19, 2000), and the Pittsburgh, Pennsylvania ozone redesignation
(66 FR 50399, October 19, 2001).
In any case, on May 19, 2022 (87 FR 30420), EPA published a final
rulemaking which corrected the omission of timely comment and response
in our September 28, 2021, rulemaking approving most elements and
disapproving the visibility protection requirements of CAA section
110(a)(2)(D)(i)(II) prong 4.\34\ EPA has reissued the approval in
question after responding to comments on the proposal, addressing
concerns with Michigan's satisfaction of CAA section 110(a)(2)(E)(i)
with respect to adequate resources.
---------------------------------------------------------------------------
\34\ Michigan has a partially approved Regional Haze Plan and is
subject to FIPs for St. Marys Cement, Escanaba Paper Company, and
Tilden Mining, a taconite processing facility. See 81 FR 21671
(April 12, 2016) and 83 FR 25375 (July 2, 2018) for more information
on the FIPs that apply to this area.
---------------------------------------------------------------------------
L. Enforcement Authority
Comment: The commenters dispute the commitment in Michigan's SIP
stating that the State ``has the authority to implement the requested
SIP revision . . . includ[ing] the authority to adopt, implement, and
enforce any subsequent emission control measures determined to be
necessary to correct future ozone attainment problems.'' The commenters
assert that the State does not have the authority to enforce emission
control measures that may be needed to correct future ozone problems.
The commenters rely on a decision from the Michigan Court of Claims
which invalidated a State administrative rule, Michigan Administrative
Code (MAC) 336.1430 (`Rule 430'), on the basis that the rule failed the
State Administrative Procedures Act ``general applicability''
[[Page 32610]]
requirement because of its focus on one particular facility. The
commenters assert that EPA has failed to address the court's holding or
explain why the Agency believes Michigan will have sufficient authority
to impose enforceable emissions limitations as may be necessary when a
particular polluter refuses to limit pollution as needed to bring an
area into attainment with the NAAQS in the event of future violations
of the NAAQS that trigger contingency provisions. The commenters urge
EPA to reexamine whether Michigan has adequate authority to implement
its maintenance plan in light of U.S. Steel Corp. and to disapprove the
plan if the Agency concludes that Michigan does not.
Response: We do not agree that the U.S. Steel Corp. decision
indicates that Michigan does not have authority to implement and
enforce its maintenance plan. The State listed the following
contingency provisions in its maintenance plan for the Detroit area:
(1) VOC or NOX RACT rules for existing sources covered by
Control Technique Guidelines, Alternative Control Guidelines, or other
appropriate guidance; (2) application of VOC RACT on existing smaller
sources; (3) alternative fuel and diesel retrofit programs for fleet
vehicle operations; (4) VOC or NOX control on new minor
sources (less than 100 tons per year); (5) increased VOC or
NOX emission offsets for new and modified major sources; (6)
reduced idling programs; (7) trip reduction programs; (8) traffic flow
and transit improvements; (9) increased turnover of legacy natural gas
distribution pipelines; (10) stationary engine controls to reduce
formaldehyde and NOX emissions; (11) phase 2 architectural
and industrial maintenance coatings (AIM) rules; (12) phase 5 consumer
products rules; and, (13) additional measures as identified by EGLE.
Given the nature of these provisions, we think it unlikely that these
measures are designed to apply only to a single source, like the State
rule at issue in the U.S. Steel Corp. decision, which the court found
clearly applied to only one entity and could conceivably apply to only
one entity. To the extent that the commenters are asserting that EPA
should disapprove the State's maintenance plan because the State may
need to target emissions from one particular source in the event of a
future violation, and the 2017 Court of Claims decision calls into
question whether the State could do so, we anticipate that the State
will adopt future measures consistent with the applicable procedural
State law requirements at issue in U.S. Steel Corp. The State has
provided in its maintenance plan for twelve contingency provisions that
on their face appear to be generally applicable, and it would be
unreasonable to disapprove the SIP submission based on a measure the
State has not adopted, nor suggested it would adopt, on the speculation
that such a measure might be necessary.
Moreover, we note that in our May 19, 2022, final rulemaking
correcting the omission in the September 28, 2021, rulemaking, EPA
published a substantive response to Sierra Club's comment regarding
Michigan's authority to enforce control measures. 87 FR 30420. As we
noted then, EPA disagrees with the commenters' concern that the
Michigan Court of Claims decision in United States Steel Corp. v. Dept.
of Environmental Quality, indicates that Michigan lacks legal authority
to regulate sources. EPA concluded that the court only decided that the
State had improperly sought to impose emissions controls on the sources
at issue through a rule that did not meet State law requirements for a
``rule of general applicability'' in violation of relevant State
administrative procedures act requirements. EPA interprets the ruling
to indicate that the State does have authority under Michigan law to
impose necessary emission limitations on sources, as required to meet
CAA requirements, via other legal mechanisms. In our May 19, 2022,
final rulemaking, EPA identified several authorities by which Michigan
may enforce its SIP.
M. Prevention of Significant Deterioration (PSD) Program
Comment: The commenters argue that EGLE did not properly implement
the preconstruction monitoring requirement for several sources subject
to PSD New Source Review (NSR), and thus the commenters contend that
CAA section 107(d)(3)(E)(v), which requires that EPA determine the
State has met all applicable SIP requirements described in CAA section
110, is not satisfied. The commenters assert that CAA section 110
includes a requirement to include provisions for the proper
implementation of programs including PSD NSR. The commenters
acknowledge that Michigan has adopted provisions meeting CAA
requirements regarding preconstruction monitoring requirements into its
SIP, but the commenters allege that the State has failed to properly
implement those requirements. Specifically, the commenters State that
Michigan has failed to collect air quality data as required from
sources with net emissions increases of 100 tpy or more of VOCs or
NOX. The commenters also call into question the validity of
the significant monitoring concentrations for ozone established in 40
CFR part 51 and 40 CFR part 52 based on a D.C. Circuit decision
regarding Significant Monitoring Concentrations (SMCs) for particulate
matter, and they state that the ozone SMCs are unlawful and must be
vacated.
Response: CAA section 107(d)(3)(E)(v) states that EPA may not
promulgate a redesignation of a nonattainment area to attainment unless
``the State containing such area has met all requirements applicable to
the area under section 7410 [i.e., section 110] of this title and Part
D of this subchapter.'' Section 110, as it pertains to obligations for
states, sets forth the required contents of the revisions to a State's
implementation plan that must be adopted and submitted to EPA after the
promulgation of a NAAQS. EPA therefore understands its role in
determining whether CAA section 107(d)(3)(E)(v) is satisfied to be an
inquiry into whether a State has adopted and submitted to EPA all those
revisions to its SIP that are required by section 110 and part D. In
this case, Michigan has met its obligations to submit those
requirements applicable to it for purposes of redesignation.
As we noted in the March 14, 2022, proposed rulemaking, EPA fully
approved Michigan's PSD program on March 25, 2010 (75 FR 14352), and
most recently approved revisions to Michigan's PSD program on May 12,
2021 (86 FR 25954). The SIP-approved PSD program prohibits air quality
from deteriorating beyond the concentration allowed by the applicable
NAAQS. See MAC R 336.2811.
We do not agree with the commenter that a State's implementation of
its SIP is equivalent to whether the State has met the requirements of
CAA section 110 and part D, which concern whether a State has made
required revisions to its SIP. Any issues with respect to the State's
application of the approved SIP are beyond the scope of this action and
should be raised on a permit specific basis.
Similarly, comments regarding the lawfulness of EPA's PSD
regulations pertaining to ozone at 40 CFR 51.166(i)(5)(i)(f) or 40 CFR
52.21(i)(5)(i)(f) are outside the scope of this action.
N. Supplemental Comments
Comment: In their March 14, 2023, supplemental comment, commenters
contend that EPA cannot redesignate the
[[Page 32611]]
Detroit area until EPA has approved RACT and reasonably available
control measures (RACM) for the area. Commenters note that under
section 107(d)(3)(E), EPA cannot redesignate an area unless (among
other things) ``the State containing such area has met all requirements
applicable to the area under section [110] and part D of [title I of
the Act].'' Effective March 1, 2023, EPA reclassified the Detroit ozone
nonattainment area as Moderate. This triggered a requirement under
sections 182(b)(2) and 182(f) of the CAA for Michigan to implement RACT
for sources of VOCs and NOX. The commenters, citing Sierra
Club v. U.S. EPA, 793 F.3d 656 (6th Cir. 2015), contend that section
172(c)(1) of the CAA requires Michigan to implement RACM, regardless of
whether the area is attaining the NAAQS.
The Commenters further contest EPA's position that, for purposes of
redesignation ``all requirements applicable to the area'' are those
that were due prior to the State's submittal of a complete
redesignation request. The commenters cite the decision in Sierra Club
v. U.S. EPA for the proposition that EPA does not have discretion to
reinterpret the CAA's unambiguous requirement that nonattainment plans
for areas in the Moderate category or worse must include RACT/RACM
requirements. The commenters state, ``Just as EPA cannot excise [RACT/
RACM] from the statutory requirement that a State meet `all'
requirements applicable to the area, EPA cannot create a wholesale
exception to the State's requirement to meet `all' requirements
applicable to a moderate area based on the timing of the State's
redesignation submission.'' The commenters assert that EPA's approach
is contrary to the plain meaning of section 107(d)(3)(E)(v) that
``all'' means all. The commenters argue that the structure and purpose
of the CAA confirm their interpretation, claiming that EPA's
interpretation gives states an incentive to submit redesignation
requests early, regardless of whether the State qualifies at the time
of submission, in order to evade future requirements.
The commenters also contend that ``section 107(d)(3)(E) applies not
only to redesignation requests from a State, but also to EPA's
redesignation on its own initiative under section 107(d)(3)(A). Given
this, EPA cannot explain why the submittal date of a redesignation
request should have any relevance to section 107(d)(3)(E)(v)'s
requirements.''
Response: Section 172(c) of the CAA sets forth the basic
requirements of air quality plans for states with nonattainment areas.
Subpart 2 of part D, which includes section 182 of the CAA, establishes
specific requirements for ozone nonattainment areas depending on the
areas' nonattainment classifications. Detroit was designated as
nonattainment and classified as Marginal for the 2015 ozone NAAQS,
effective August 3, 2018. As provided in subpart 2, for Marginal ozone
nonattainment areas such as the Detroit area, the specific requirements
of section 182(a) apply in lieu of the attainment planning requirements
that would otherwise apply under section 172(c), including the
attainment demonstration and RACM under section 172(c)(1), reasonable
further progress under section 172(c)(2), and contingency measures
under section 172(c)(9).
The only RACT provision applicable to ozone areas classified as
Marginal is contained in CAA section 182(a)(2)(A), which requires
states with ozone nonattainment areas that were designated prior to the
enactment of the 1990 CAA amendments to submit, within six months of
classification, all rules and corrections to existing VOC RACT rules
that were required under section 172(b)(3) prior to the 1990 CAA
amendments. The Detroit area is not subject to the section 182(a)(2)
RACT ``fix up'' requirement for the 2015 ozone NAAQS because it was
designated as nonattainment for this standard after the enactment of
the 1990 CAA amendments and, in any case, Michigan complied with this
requirement for the Detroit area under the prior 1-hour ozone
NAAQS.\35\ With respect to RACM, areas classified as Marginal are not
required to perform a RACM analysis. This is clearly stated in the 2008
Ozone NAAQS SIP Requirements Rule, ``Note that a RACM analysis is not
required for Marginal nonattainment areas since an attainment
demonstration is not required for those areas.'' \36\ EPA retained this
approach in the Implementation Rule for the 2015 ozone NAAQS, based on
the rationale and approach articulated in the final 2008 Ozone NAAQS
SIP Requirements Rule.\37\
---------------------------------------------------------------------------
\35\ See 60 FR 46182 (September 7, 1994).
\36\ 80 FR 12264, 12271 (March 6, 2015).
\37\ 83 FR 62998, 63007-63008 (December 6, 2018).
---------------------------------------------------------------------------
The Detroit area was reclassified as Moderate under the 2015 ozone
NAAQS effective March 1, 2023.\38\ As a Moderate area, Detroit became
subject to the RACT provisions of CAA section 182(b)(2) and RACM
requirements associated with the attainment demonstration. These
moderate RACT and RACM plans became due March 1, 2023.
---------------------------------------------------------------------------
\38\ 88 FR 6633 (February 1, 2023).
---------------------------------------------------------------------------
CAA section 107(d)(3)(E)(v) provides that the Administrator may not
promulgate a redesignation of a nonattainment area to attainment
unless, among other things, ``the State containing such area has met
all requirements applicable to the area under section 7410 of this
title and Part D of this subchapter.'' Since the CAA was amended in
1990, EPA has consistently interpreted the term ``applicable'' in this
provision not to include those section 110 and part D requirements that
came due after the submittal of a complete redesignation request. See
Calcagni memorandum at 4. Specifically, the Calcagni memorandum
explains that ``When evaluating a redesignation request, Regions should
not consider whether the State has met requirements that come due under
the CAA after submittal of a complete redesignation request'' but that
per CAA section 175A(c), the requirements of part D remain in force and
effect for the area until such time as it is redesignated. Id., n.3.
See also Michael Shapiro Memorandum, September 17, 1993.
As EPA has explained in actions applying this interpretation over
the past 30 years, reading the CAA in this way balances the reasonable
expectations of a requesting State and the timing the CAA provides for
EPA to act on State submissions. See, e.g., 60 FR 12459, 12465-66
(March 7, 1995) (Redesignation of Detroit-Ann Arbor for the 1979 1-hour
ozone NAAQS). Per CAA section 107(d)(3)(D), EPA must approve or deny a
State's request for redesignation within 18 months of receipt of a
complete redesignation submittal. With respect to SIP submittals
addressing applicable CAA section 110 and part D requirements, CAA
section 110(k)(2) requires EPA to act on such submissions within 12
months of a determination that the submission is complete (i.e.,
maximum 18 months from submission, given the maximum time frame
provided under CAA section 110(k) for statutorily deeming a submission
complete). In order for EPA to approve a redesignation request, per the
requirements of CAA section 107(d)(3)(E)(ii) it needs to have fully
approved (per 110(k)) the ``applicable'' implementation plan, which
again is defined by the ``applicable'' requirements for redesignation
as set forth in CAA section 107(d)(3)(D)(v). Therefore, if EPA were to
read the CAA as commenters suggest, by withholding any approval of a
redesignation until the State made submissions for deadlines
[[Page 32612]]
occurring after the original date of submittal, and until EPA had acted
on those submissions, the State might never be able to have the area
redesignated. Each CAA requirement coming due during the pendency of
EPA's review of a redesignation request carries with it a necessary
implication that EPA must also fully approve the SIP submission made to
satisfy that requirement in order for the area to be redesignated. We
do not think it is a reasonable reading of the CAA to require states to
make additional SIP submissions on which EPA would need to fully act
before it could act on the redesignation request before it; such an
interpretation would almost necessarily delay action on the
redesignation request beyond the 18-month time frame. EPA's
interpretation in no way obviates the ongoing obligation of states to
continue to comply with requirements coming due after the submission of
the redesignation request. It simply means that areas may be
redesignated even though the State may not have complied with those
requirements. See 60 FR at 12466.
Reviewing courts have upheld EPA's interpretation that requirements
coming due after a complete redesignation request is submitted are not
``applicable'' for purposes of redesignation. Sierra Club v. EPA, 375
F.3d 537 (7th Cir. 2004) (upholding the redesignation of St. Louis
based on the timing of submittal and deadline of requirements, even
though by the time EPA acted on the State's redesignation it had been
reclassified to a higher classification and was subject to more
stringent SIP requirements, 68 FR 25418, 25424-27 (May 12, 2003)).
EPA disagrees with the commenters' assertion that this longstanding
approach is contrary to the plain meaning of section 107(d)(3)(E)(v).
Commenters emphasize that ``all means all'' but in doing so, they
excise ``applicable'' from CAA section 107(d)(3)(E)(v). States must
meet ``all requirements applicable,'' and EPA's 30-year interpretation
of that phrase is that not every requirement is necessarily applicable
for purposes of evaluating a redesignation request. EPA further
disagrees with the commenters' assertion that this longstanding
interpretation is inconsistent with the Sixth Circuit Court's decision
in Sierra Club v. U.S. EPA, 793 F.3d 656 (2015). In that case, the CAA
section 172(c)(1) RACT/RACM requirements at issue had come due prior to
submission of a complete redesignation request. Moreover, even in the
2015 Sierra Club decision, the 6th Circuit acknowledged that it had
previously held that CAA section 107(d)(3)(E)(v) ``could be read to
`limit the number of actual requirements within [CAA section 110] and
Part D that apply to a given area,' '' quoting Wall v. EPA, 265 F.3d
426, 439 (2001), and noting that it had deferred to the Agency's view
that part D transportation conformity requirements were not
``requirements applicable to the area'' under CAA section
107(d)(3)(E)(v). Sierra Club v. EPA, 793 F.3d at 669.
When Michigan submitted the redesignation request, on January 3,
2022, the Detroit area was classified as Marginal. As a Marginal area,
Detroit had no applicable RACT or RACM requirements. The RACT and RACM
requirements triggered by the reclassification of the Detroit area as
Moderate did not become due until March 1, 2023, well after Michigan
submitted a complete redesignation request for the Detroit area. Thus,
per EPA's interpretation provided above, the Moderate RACT and RACM
requirements are not ``requirements applicable to the area'' for
purposes of CAA section 107(d)(3)(E)(v), and EPA is not barred from
approving the redesignation in the absence of the State having met
those requirements. EPA determined that Michigan's redesignation
request was complete for purposes of redesignation because at the time
it was submitted the Detroit area was attaining the 2015 ozone NAAQS
and Michigan had submitted all applicable SIP requirements for purposes
of redesignation. The redesignation request continues to be complete
because the area has not violated the NAAQS since the redesignation
request was submitted. Contrary to what was implied by the commenters,
the State did not submit the redesignation request before the area
qualified for redesignation. Had Michigan failed to submit all SIP
requirements applicable for redesignation or failed to demonstrate that
the Detroit area was attaining the NAAQS, the submission would not have
been considered complete for purposes of redesignation. Hence there is
no incentive for states to submit a redesignation request before an
area qualifies for redesignation.
Finally, we do not agree that commenters' observations that CAA
section 107(d)(3)(E) applies also to redesignations initiated by EPA
under CAA section 107(d)(3)(A) is relevant to which requirements should
be considered ``applicable'' for purposes of CAA section
107(d)(3)(E)(v). The CAA contemplates that EPA-initiated redesignations
under subsection (A) will be followed by response and submission from
the State. See CAA section 107(d)(3)(B) and (C). While subsection (C)
contemplates that the Administrator can promulgate some redesignations
even in the absence of a State submission, other requirements in CAA
section 107(d)(3)(E) suggest that states must play a key role for
redesignations from nonattainment to attainment; in particular, the
requirement under CAA section 107(d)(3)(E)(iv) that a maintenance plan
be fully approved, because such plan would need to be prepared and
submitted by a State. Other redesignations, such as redesignations from
attainment or unclassifiable to nonattainment, are not subject to CAA
section 107(d)(3)(E), and can therefore be promulgated without any
submission from the State, as suggested by CAA section 107(d)(3)(C).
Comment: In their March 14, 2023, supplemental comment, commenters
raise several additional issues. First, commenters contend that EPA's
redesignation action was ``constructively reopened for comment'' given
commenters' contention that EPA ``did not finalize its proposed
redesignation based on the 2019-2021 data'' and 2022 monitoring data is
``a critical component of the 2020-2022 design value.'' Second,
commenters reference EGLE's January 3, 2023, exceptional events
demonstration for the East 7 Mile monitor, and state that ``they do not
believe EGLE has adequately supported its exceptional event
demonstration to meet the high evidentiary standard required to exclude
the maximum daily 8-hour ozone average.'' The commenters suggest
instead that ozone concentrations at the monitor may be affected by the
Stellantis auto assembly complex. Third, commenters reference the
requirement at CAA section 107(d)(E)(3)(iii) that EGLE must demonstrate
that improvement in air quality is due to permanent and enforceable
reductions in emissions, and claim that EGLE must complete such an
analysis for 2022. Lastly, commenters reference Executive Order 12898,
and claim that finalizing this redesignation without providing an
opportunity for public comment on 2022 data would violate EPA policy
regarding providing fair treatment and meaningful involvement of all
people. Commenters also claim the weight-of-evidence analysis
underlying EPA's concurrence determination on an exceptional events
demonstration is ``inherently biased against environmental justice
communities.''
Response: Many of the commenters' contentions are based on a
misunderstanding of EPA's consideration of 2022 data within this
[[Page 32613]]
final action. EPA is finalizing our March 14, 2022, proposed approval
of EGLE's January 3, 2022, request to redesignate the Detroit area
based on attaining monitoring data for 2019-2021, and EPA's
determination that the area meets all other requirements for
redesignation at CAA section 107(d)(3)(E). As noted above, EPA's
determination under CAA section 107(d)(3)(E)(i) also relies on our
final action on EPA's concurrence of a January 26, 2023, demonstration
submitted by EGLE, as well as preliminary monitoring data, which
together show the area has continued to attain the standard subsequent
to the 2019-2021 period. Contrary to the commenters' contention that
EGLE must demonstrate that attainment in 2020-2022 was due to permanent
and enforceable measures, EPA's determination under CAA section
107(d)(3)(E)(iii) is based only on the 2019-2021 period. EPA also
disagrees that the redesignation action was ``constructively reopened
for comment'' given that EPA's determination is based on the 2019-2021
period and continued attainment since that period, and not based on the
2020-2022 design value.
Although this redesignation is related to EPA's Clean Data
Determination based on 2020 to 2022 data, regarding the data set used
for regulatory purposes, EPA clearly and properly proposed that action
and responded to public comments in that final rulemaking. Further, EPA
conducted extensive public outreach during that public comment period,
including notification of interest groups before publication of the
proposed action in the Federal Register, creation of a public-facing
website including fact sheets, and translation of materials into Arabic
and Spanish.\39\ EPA disagrees that further public involvement is
required in order for EPA to take final action. Public notice and
opportunity to comment were provided consistent with applicable
requirements, and further information about additional engagement is
offered earlier in this RTC.
---------------------------------------------------------------------------
\39\ https://www.epa.gov/mi/detroit-clean-data-determination-2015-ozone-air-quality-standard.
---------------------------------------------------------------------------
Regarding commenters' claims that the weight-of-evidence approach
of an exceptional events demonstration is ``inherently biased against
environmental justice communities,'' the claim that EGLE's
demonstration did not ``meet the high evidentiary standard,'' or the
claim that emissions may be affected by the Stellantis facility, EPA
already addressed substantially similar comments in a separate final
rulemaking, and these comments have no further relevance to this
action.
V. Final Actions
EPA is determining that the Detroit nonattainment area is attaining
the 2015 ozone NAAQS, based on quality-assured and certified monitoring
data for 2019-2021. EPA is also approving, as a revision to the
Michigan SIP, the State's maintenance plan for the area. The
maintenance plan is designed to keep the Detroit area in attainment of
the 2015 ozone NAAQS through 2035. EPA is also determining that the
area meets the requirements for redesignation under section
107(d)(3)(E) of the CAA. EPA is thus changing the legal designation of
the Detroit area from nonattainment to attainment for the 2015 ozone
NAAQS. Finally, EPA is finding adequate and approving the newly
established 2025 and 2035 motor vehicle emissions budgets.
Specifically, EPA is finding adequate and approving the budgets for
2025 (i.e., an interim year) and 2035 (i.e., the last year of the
maintenance plan) as proposed. The 2025 budgets are 47.86 TPSD of VOCs
and 104.35 TPSD of NOX and the 2035 budgets are 44.67 TPSD
of VOCs and 102.41 TPSD of NOX including the assigned safety
margins.
In accordance with 5 U.S.C. 553(d) of the Administrative Procedure
Act (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 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. EPA has
determined that this rule relieves a restriction because this rule
relieves sources in the area of Nonattainment NSR permitting
requirements; instead, upon the effective date of this action, sources
will be subject to less restrictive PSD permitting requirements. For
this reason, 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.
VI. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment and the
accompanying approval of a maintenance plan under section 107(d)(3)(E)
are actions that affect the status of a geographical area and do not
impose any additional regulatory requirements on sources beyond those
imposed by State law. A redesignation to attainment does not in and of
itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. Moreover, the Administrator is
required to approve a SIP submission that complies with the provisions
of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to
approve State choices, provided that they meet the criteria of the CAA.
Accordingly, this action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law.
A. Executive Order 12866: Regulatory Planning and Review, Executive
Order 13563: Improving Regulation and Regulatory Review, and Executive
Order 14094: Modernizing Regulatory Review
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, 13563 (76
FR 3821, January 21, 2011), and 14094 (88 FR 21879, April 11, 2023).
B. Paperwork Reduction Act
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.).
C. Regulatory Flexibility Act
This action merely approves State law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by State law. Accordingly, the Administrator certifies that
this rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.).
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
[[Page 32614]]
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, will
result from this action.
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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175 (65 FR 67249, November 9, 2000), requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' This rule does not have tribal
implications, as specified in Executive Order 13175. It will not have
substantial direct effects on tribal governments. Thus, Executive Order
13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 as applying only 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. Therefore, this action is not subject to Executive
Order 13045 because it approves a State action implementing a Federal
standard.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer Advancement Act
This rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) 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 (people of color and/or Indigenous
peoples) and low-income populations.
EPA believes that the human health or environmental conditions that
exist prior to this action result in or have the potential to result in
disproportionate and adverse human health or environmental effects on
people of color, low-income populations and/or Indigenous peoples.
Demographic data identifies that the Detroit area includes communities
that are pollution-burdened and underserved. Further, EPA performed a
screening-level analysis using EPA's EJSCREEN to identify environmental
burdens and susceptible populations in communities in the Detroit area.
EPA believes that this action is not likely to change existing
disproportionate and adverse effects on people of color, low-income
populations and/or Indigenous peoples. While EPA recognizes the
importance of assessing impacts of our actions on potentially
overburdened communities, approval of Michigan's redesignation request
for the 2015 ozone NAAQS would not exacerbate existing pollution
exposure or burdens for populations in the Detroit area.
As discussed in the Environmental Justice Considerations section
and Response to Comments section of this preamble, there is no
information to support a conclusion that EGLE's implementation of its
2015 ozone SIP, including the maintenance plan now being approved
(including contingency measures) would result in a disparate impact on
minority populations (people of color and/or Indigenous peoples) and
low-income populations.
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 July 18, 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
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: May 12, 2023.
Debra Shore,
Regional Administrator, Region 5.
For the reasons stated in the preamble, title 40 CFR parts 52 and
81 are amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. In Sec. 52.1170, the table in paragraph (e) is amended under
``Maintenance Plans'' by adding an entry for ``Ozone (8-Hour, 2015)''
before the entry for ``Particulate matter'' to read as follows:
Sec. 52.1170 Identification of plan.
* * * * *
(e) * * *
[[Page 32615]]
EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Applicable State
Name of nonregulatory SIP geographic or submittal EPA approval date Comments
provision nonattainment area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Maintenance Plans
----------------------------------------------------------------------------------------------------------------
Ozone (8-Hour, 2015)............. Detroit area 1/3/2022 5/19/2023, [INSERT
(Livingston, FEDERAL REGISTER
Macomb, Monroe, CITATION].
Oakland, St. Clair,
Washtenaw, and
Wayne Counties).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
0
3. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
4. Section 81.323 is amended by revising the entry for ``Detroit, MI''
in the table entitled ``Michigan-2015 8-Hour Ozone NAAQS [Primary and
Secondary]'' to read as follows:
Sec. 81.323 Michigan.
* * * * *
Michigan--2015 8-Hour Ozone NAAQS
[Primary and secondary]
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area \1\ ---------------------------------------------------------------------------------
Date \2\ Type Date \2\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Detroit, MI................... May 19, 2023..... Attainment.......
Livingston County.........
Macomb County.............
Monroe County.............
Oakland County............
St Clair County...........
Washtenaw County..........
Wayne County..............
----------------------------------------------------------------------------------------------------------------
\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. 2023-10563 Filed 5-18-23; 8:45 am]
BILLING CODE 6560-50-P
