[Federal Register Volume 86, Number 52 (Friday, March 19, 2021)]
[Rules and Regulations]
[Pages 14827-14832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05508]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2016-0321; FRL-10021-50-Region 5]
Air Plan Approval; Michigan; Partial Approval and Partial
Disapproval of the Detroit SO2 Nonattainment Area Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is partially
approving and partially disapproving a revision to the Michigan State
Implementation Plan (SIP) for attaining the 2010 1-hour primary sulfur
dioxide (SO2) national ambient air quality standard (NAAQS
or ``standard'') for the Detroit SO2 nonattainment area
(NAA). This SIP revision (hereinafter called the ``Detroit
SO2 plan'' or ``plan'') includes Michigan's attainment
demonstration and other elements required under the
[[Page 14828]]
Clean Air Act (CAA). EPA is approving the base year emissions inventory
and affirming that the nonattainment new source review (NNSR)
requirements for the area have been met. EPA is disapproving the
attainment demonstration, as well as the requirements for meeting
reasonable further progress (RFP) toward attainment of the NAAQS,
reasonably available control measures and reasonably available control
technology (RACM/RACT), and contingency measures. Finally, EPA is
disapproving the plan's control measures for two facilities as not
demonstrating attainment and is approving the enforceable control
measures for two facilities as SIP strengthening.
DATES: This final rule is effective on April 19, 2021.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2016-0321. 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 Sarah Arra,
Environmental Scientist, at (312) 886-9401 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist,
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-9401, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
I. What actions did EPA propose on this SIP submission?
On September 18, 2020, \1\ EPA proposed to partially approve and
partially disapprove a revision to the Michigan SIP submitted on May
31, 2016, supplemented on June 30, 2016. EPA proposed to take the
following actions:
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\1\ 85 FR 58315.
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(1) EPA proposed to disapprove Michigan Administrative Code (MAC)
336.1430 (``Rule 430'') because the Michigan Court of Claims
invalidated Rule 430 on October 4, 2017. Therefore, there is no
enforceable rule remaining at the state level for EPA to incorporate
into the SIP.
(2) EPA proposed to disapprove the Detroit SO2
attainment plan pursuant to 172(c) and 192(a), because it relied on
Rule 430 to demonstrate attainment, which can no longer be relied on as
an enforceable mechanism.
(3) Because of the lack of enforceable measures from Rule 430, the
remaining control strategies can no longer be assessed as a part of a
complete attainment demonstration. Instead, EPA proposed to approve two
permits as SIP strengthening, Carmeuse Lime's Permit to Install 193-14A
and DTE Energy--Trenton Channel's Permit to Install 125-11C. SIP
strengthening is appropriate for limits that improve air quality but do
not meet a specific CAA requirement.
(4) EPA proposed to disapprove the DTE River Rouge permit, Permit
to Install 40-08H, because it was recently superseded by a new permit
to install, not included in the SIP package, that corrected an error in
the long-term averaging calculation for the superseded permit.
(5) EPA proposed to approve the 2012 baseline inventory as meeting
the requirements of CAA section 172(c)(3) and (4) for the Detroit
SO2 NAA.
(6) EPA proposed to affirm that the new source review requirements
for the area have been met because Michigan has a fully approved NNSR
Program.\2\
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\2\ 78 FR 76064 (December 16, 2013).
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(7) Because the Detroit plan is missing enforceable measures for
some major sources of SO2 and is therefore not able to
demonstrate attainment, EPA proposed to disapprove the following:
--The requirements in CAA sections 172(c)(1) and (6) to adopt and
submit all RACM/RACT and emissions limitations or control measures as
needed to attain the standard as expeditiously as practicable.
--The requirement in section 172(c)(2) to provide for RFP toward
attainment in the Detroit SO2 NAA.
--The requirement in section 172(c)(9) to provide for contingency
measures to be undertaken if the area fails to make RFP or to attain
NAAQS by the attainment date.
EPA's action to disapprove portions of the Detroit attainment plan
will start new sanctions clocks under CAA section 179(a)-(b) which can
be stopped only if the conditions of EPA's regulations at 40 CFR 52.31
\3\ are met. Only a full SIP approval or EPA's promulgation of a
Federal implementation plan (FIP) under CAA section 110(c)(1) can stop
FIP clocks, so this action does not have any effect on the FIP clock
that started April 18, 2016.\4\
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\3\ EPA's regulations regarding the implementation of sanctions
requirements required by 179(a).
\4\ 81 FR 14736 (March 18, 2016).
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II. What is our response to comments received on the proposed
rulemaking?
The proposed action described above had a public comment period
that closed October 19, 2020, and then by request, was reopened until
November 16, 2020. This action received 21 supportive comments, nine
comments not directly relevant to the rulemaking, and a joint comment
letter from Sierra Club and Earth Justice that was partially adverse.
This joint comment letter is summarized below along with EPA's
responses.
Comment: The commenters contend that the state's modeling contains
several flaws and the modeling methodology should be explicitly
disapproved. The commenters went on to point out several elements with
which they took issue in the modeling. The commenters additionally
provided their own modeling demonstration showing further reductions
needed from several sources in the area.
Response: The state's modeling is part of the attainment
demonstration which is being disapproved as part of this action.
Because the attainment demonstration is not approvable due to
enforceability issues, it is not necessary for EPA to determine whether
or not the modeling supports attainment, when the modeling relies on
limits that no longer exist. However, EPA has taken note of the
modeling concerns in this comment letter and will include them for
consideration during the continued attainment planning efforts for this
area.
Comment: The commenters pointed out that the reason for the
invalidation of Rule 430 was because Michigan does not have authority
to impose facility-specific limits. The commenters contend that EPA
should consider whether a SIP-call under CAA section 110(k)(5) is
needed due to Michigan appearing to not meet the requirement of section
110(a)(2)(E)(i) to have adequate authority to carry out its
implementation plan. EPA should also
[[Page 14829]]
move forward with a FIP if the state lacks proper authority.
Response: Although prohibitions on adoption of individual facility
limits in state rules is not uncommon, in this situation it resulted in
some of the State's submitted SIP limits being invalidated under state
law, which precludes approval of the attainment demonstration and of
those limits. EPA expects now that Michigan will draft future rules to
avoid this prohibition which resulted in invalid limits and make
necessary efforts to properly implement the NAAQS. Additionally, EPA is
actively working on continued attainment planning efforts for this
area, and the result of this SIP disapproval action will be to impose
CAA section 179 sanctions if the State does not take necessary steps to
correct the deficiencies giving rise to the disapproval. Consequently,
in this final action EPA is not prepared to exercise its discretion to
issue a CAA section 110(k)(5) SIP Call to Michigan regarding this
issue, and notes that the State is already obligated to remedy the
deficiencies that would be addressed by any additional SIP Call under
section 110(k)(5), which, if issued, would occur under its own separate
notice and comment process. In addition, in this final action EPA is
not able to additionally promulgate a FIP under CAA section 110(c), as
that requires its own notice and comment rulemaking process pursuant to
CAA section 307(d). Consequently, this final action to partially
approve and partially disapprove the submitted SIP does not include any
final action under section 110(k)(5) regarding whether to issue a SIP
Call, or under section 110(c) to promulgate a FIP.
Comment: The commenters recommended that EPA not approve the
Trenton Channel permit as SIP strengthening because the limit is above
the plant's actual current emissions and, therefore, does not
immediately improve air quality. Additionally, the commenters contend
that if included, the limits should undergo a robust analysis on how
the 30-day average is appropriate to meet the one-hour standard.
Response: EPA disagrees with both points. The permit's inclusion
into the SIP does improve air quality because it restricts the
facility's potential to emit at higher levels in the future compared to
currently allowable levels, even if the facility is not currently
emitting at the permit's levels or the even higher levels allowed under
the current SIP. Additionally, the 30-day average does not need to be
evaluated as to whether it is sufficient to provide attainment under
the one-hour NAAQS, because the permit is not currently being approved
as part of a strategy to meet that standard. However, if the permit is
relied on in future attainment planning efforts, a robust analysis of
the 30-day averaging limit (and any other limits relied upon in such a
future demonstration) will be provided. In this action, EPA makes no
final judgment on whether the 30-day limit combined with other future
possible limits will provide for NAAQS attainment.
Comment: The commenters stated that EPA should not approve the 2012
base year inventory because it does not meet the CAA section 172(c)(3)
requirements of being ``comprehensive, accurate, [and] current''. The
commenters attempted to demonstrate this by showing emission increases
at two sources when comparing 2012 to 2018 annual emissions.
Response: During the attainment planning and eventual redesignation
process, three different inventories are considered and approved: Base
year, attainment year, and future maintenance year. This action is only
approving the base year inventory. Base year inventories are a
nonattainment year upon which all future attainment work is based.
Regarding the commenters' claim that the 2012 inventory is out of date,
when Michigan began their attainment planning, 2012 was the most
current year with available emissions data. EPA would not expect a base
year inventory to be amended because time has passed since the
submittal date. The 2018 data would not have been available until 2019
at the earliest, which was three years after the state's submittal. EPA
disagrees with the commenters' second issue, that the 2012 inventory is
inaccurate. The commenters' examples of 2018 emissions are from the
Michigan Air Emissions Reporting System (MAERS), publicly available
annual emissions data for all major sources in Michigan. The commenters
compared the emissions increase at two sources between 2012 and 2018 to
show inaccuracy in the base year inventory. EPA disagrees that this
data proves inaccuracies, but rather demonstrates the variability of
emissions over time, generally due to economic factors, i.e. increased
affordability of natural gas lowering emissions and increased
manufacturing due to economic demands increasing emissions. When
comparing all the sources in the inventory from 2012 to 2018, total
emissions have decreased by 82 percent, shown in Table 1 below as tons
per year (tpy) of SO2 emissions.
Table 1--Detroit Area 2012 and 2018 Emissions Comparison
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2012 2018
Source Emissions Emissions
(tpy) (tpy)
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River Rouge............................. 8,202.52 2,118.48
Trenton Channel......................... 22,426.12 3,114.04
Monroe.................................. 49,150.63 3,854.35
Carmeuse Lime........................... 699.69 482.79
Severstal Steel......................... 677.12 571.74
DIG..................................... 597.88 820.17
Marathon................................ 137.34 168.39
U.S. Steel.............................. 2,874.30 1,482.91
EES Coke................................ 1,900.77 3,253.76
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Total............................... 86,666.37 15,866.63
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Emissions inventories are always likely to vary year to year, but
that does not deem a previous year's inventory inaccurate. As an
example, Dearborn Industrial Generation (DIG), one of the sources
pointed out by the commenters as increasing emissions between 2012 and
2018, varies greatly year to year. Looking at data over the most recent
15
[[Page 14830]]
years in MAERS, 2003 to 2018, DIG had a lowest value of 364.61 tpy in
2009 and a highest value of 1,038.72 tpy in 2016, showing that the 2012
and 2018 years are both in the middle of the normal annual
fluctuations. The eventual action to approve or disapprove an
attainment year inventory will consider changes in emissions levels
during the attainment planning period, including the differences
pointed out in the comment between 2012 and 2018, and additional
reductions needed to bring the area into attainment. However, the
eventual development of an attainment year inventory will not change
the factual basis of the base year inventory. The attainment planning
process will account for these possible fluctuations by focusing on
potential to emit rather than the actual inventories of any given year.
Therefore, EPA believes 2012 is appropriate for a base year inventory,
and that the submitted 2012 base year inventory is approvable for its
purposes of charactering what emissions were in that base year.
Comment: The commenters pointed to the language from EPA's proposed
approval stating, ``EPA modeling demonstrates that attainment at
violating receptors can be achieved when the emission limits in the DTE
Trenton Channel Permit are analyzed together with those contained in a
recently issued permit for the DTE River Rouge facility (Permit to
Install 40-08I)'' and contended that EPA should not finalize a finding
that revisions to the DTE Trenton Channel and River Rouge permits would
be enough to achieve attainment.
Response: EPA is not finalizing a finding that revisions to the DTE
Trenton Channel and River Rouge permits would be enough to achieve
attainment of the one-hour standard. Such a final determination could
be made only upon approval of the state's attainment plan or as part of
EPA's promulgation of a FIP. EPA meant this discussion to explain the
reasoning for DTE River Rouge alone to obtain a new permit in response
to a calculation error found in both the River Rouge and Trenton
Channel 30-day averaging limits. EPA is clarifying that these changes
alone do not prejudge whether these or any other measures will or will
not result in attainment for the entire Detroit area.
Comment: The commenters are supportive of the disapproval of the
RACT/RACM, RFP, and contingency measure elements and recommended EPA
finalize as expeditiously as possible. The commenters additionally
supplied recommendations for next steps in replacing the disapproved
portions of this plan.
Response: In addition to the modeling recommendations, EPA will
also consider the ``next steps'' recommendations in this letter as a
part of the ongoing attainment planning efforts.
III. What action is EPA taking?
EPA is finalizing the following actions as proposed: EPA is
approving the base year inventory and affirming that the new source
review requirements for the area have been met. EPA is also approving
the DTE Trenton Channel and Carmeuse Lime permits as SIP strengthening.
EPA is proposing to disapprove the attainment demonstration, as well as
the requirement for meeting RFP toward attainment of the NAAQS, RACM/
RACT, contingency measures, the invalidated Rule 430 related to U.S.
Steel, and the superseded 2016 permit related to DTE River Rouge. This
disapproval will start new sanctions clocks for this area under CAA
section 179(a)-(b).
IV. Incorporation by Reference
In this rule, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of the Michigan
Regulations described in the amendments to 40 CFR part 52 set forth
below. EPA has made, and will continue to make, these documents
generally available through www.regulations.gov, and at the EPA Region
5 Office (please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section of this preamble for more information).
Therefore, these materials have been approved by EPA for inclusion in
the State implementation plan, have been incorporated by reference by
EPA into that plan, are fully federally enforceable under sections 110
and 113 of the CAA as of the effective date of the final rulemaking of
EPA's approval, and will be incorporated by reference in the next
update to the SIP compilation.\5\
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\5\ 62 FR 27968 (May 22, 1997).
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V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the
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Congress and to the Comptroller General of the United States. EPA will
submit a report containing this action and other required information
to the U.S. Senate, the U.S. House of Representatives, and the
Comptroller General of the United States prior to publication of the
rule in the Federal Register. A major rule cannot take effect until 60
days after it is published in the Federal Register. This action is not
a ``major rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 18, 2021. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: March 11, 2021.
Cheryl Newton,
Acting Regional Administrator, Region 5.
For the reasons stated in the preamble, EPA amends title 40 CFR
part 52 as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Amend Sec. 52.1170 by:
0
a. In the table in paragraph (d) adding in alphabetic order entries for
``Carmeuse Lime, Wayne County'' and ``DTE Energy--Trenton Channel,
Wayne County'';
0
b. In the table in paragraph (e) adding an entry for ``2010
SO2 Standard 2012 base year'' after the entry for ``2008
lead (Pb) 2013 base year'' under the sub-heading ``Emissions
Inventories''.
The additions read as follows:
Sec. 52.1170 Identification of plan.
* * * * *
(d) * * *
EPA--Approved Michigan Source-Specific Provisions
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State
Name of source Order number effective date EPA approval date Comments
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* * * * * * *
Carmeuse Lime, Wayne County...... Permit 193-14A..... March 18, 2016 March 19, 2021, ...................
[INSERT Federal
Register CITATION].
* * * * * * *
DTE Energy--Trenton Channel, Permit 125-11C..... April 29, 2016 March 19, 2021, ...................
Wayne County. [INSERT Federal
Register CITATION].
* * * * * * *
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(e) * * *
EPA--Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
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Applicable
Name of nonregulatory SIP geographic or State EPA approval date Comments
provision nonattainment area submittal date
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* * * * * * *
Emission Inventories
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* * * * * * *
2010 SO2 Standard................ Detroit area (Wayne May 31, 2016 March 19, 2021, ...................
2012 base year................... County, part). [INSERT Federal
Register CITATION].
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[FR Doc. 2021-05508 Filed 3-18-21; 8:45 am]
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