[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
------------------------------------------------------------------------
                                               2012            2018
                 Source                      Emissions       Emissions
                                               (tpy)           (tpy)
------------------------------------------------------------------------
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
                                         -------------------------------
    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

[[Page 14831]]

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
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
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
----------------------------------------------------------------------------------------------------------------
                                        Applicable
    Name of nonregulatory SIP         geographic or          State       EPA approval date         Comments
            provision               nonattainment area  submittal date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
                                              Emission Inventories
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
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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