[Federal Register Volume 86, Number 125 (Friday, July 2, 2021)]
[Proposed Rules]
[Pages 35247-35254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14152]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2019-0215; FRL-10025-47-Region 5]
Air Plan Approval; Michigan; Partial Approval and Partial
Disapproval for Infrastructure SIP Requirements for the 2015 Ozone
NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
partially approve and partially disapprove elements of a State
Implementation Plan (SIP) submission from Michigan regarding the
infrastructure requirements of section 110 of the Clean Air Act (CAA)
for the 2015 ozone National Ambient Air Quality Standards (NAAQS). The
infrastructure requirements are designed to ensure that the structural
components of each state's air quality management program are adequate
to meet the state's responsibilities under the CAA. The disapproval
portion of this action does not begin a new Federal Implementation Plan
(FIP) clock, because the FIPs are already in place.
DATES: Comments must be received on or before August 2, 2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2019-0215 at http://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit http://www2.epa.gov/docketgs/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Olivia Davidson, 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) 886-0266,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION
section is arranged as follows:
I. What is the background of this SIP submission?
II. What is EPA's analysis of this SIP submission?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background of this SIP submission?
In this rulemaking, EPA is proposing to approve most elements and
disapprove one element of a March 8, 2019 submission from Michigan's
Department of Environment, Great Lakes and Energy (EGLE) intended to
address all applicable infrastructure requirements for the 2015 ozone
NAAQS. EPA is disapproving the portion of the submission pertaining to
the visibility protection requirements of section 110(a)(2)(D)(i)(II)
with respect to the 2015 ozone NAAQS. The disapproval portion of this
action does not begin a new FIP clock, because the FIPs are already in
place. EPA will take action in a separate rulemaking on the portion of
the submission pertaining to the interstate transport requirements of
section 110(a)(2)(D)(i)(I) with respect to the 2015 ozone NAAQS.
Whenever EPA promulgates a new or revised NAAQS, CAA section
110(a)(1) requires states to make SIP submissions to provide for the
implementation, maintenance, and enforcement of the NAAQS. This type of
SIP submission is commonly referred to as an ``infrastructure SIP.''
These submissions must meet the various requirements of CAA section
110(a)(2), as applicable. Due to ambiguity in some of the language of
CAA section 110(a)(2), EPA believes that it is appropriate to interpret
these provisions in the specific context of acting on infrastructure
SIP submissions. EPA has previously provided comprehensive guidance on
the application of these provisions through our September 13, 2013
Infrastructure SIP Guidance and through regional actions on
infrastructure submissions (EPA's 2013 Guidance).\1\ Unless otherwise
noted below, we are following that existing approach in acting on this
submission. In addition, in the context of acting on such
infrastructure submissions, EPA evaluates the submitting state's SIP
for facial compliance with statutory and regulatory requirements, not
for the state's implementation of its SIP.\2\ EPA has other authority
to address any issues concerning a state's implementation of the rules,
regulations, consent orders, etc. that comprise its SIP.
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\1\ EPA explains and elaborates on these ambiguities and its
approach to address them in our September 13, 2013 Infrastructure
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior
action on Minnesota's infrastructure SIP to address the 2008 ozone,
2010 nitrogen dioxide (NO2), 2010 sulfur dioxide
(SO2), and 2012 fine particulate matter
(PM2.5) NAAQS (80 FR 63436 (October 20, 2015)).
\2\ See U.S. Court of Appeals for the Ninth Circuit decision in
Montana Environmental Information Center v. EPA, No. 16-71933 (Aug.
30, 2018).
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[[Page 35248]]
II. What is EPA's analysis of this SIP submission?
Pursuant to section 110(a), states must provide reasonable notice
and opportunity for public hearing for all infrastructure SIP
submissions. On September 28, 2018, EGLE opened a five-week comment
period and provided the opportunity for public hearing. Comments were
integrated into the SIP submission.
Michigan provided a detailed synopsis of how various components of
its SIP meet each of the applicable requirements in section 110(a)(2)
for the 2015 ozone NAAQS, as applicable. The following review evaluates
the state's submission.
A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures
This section requires SIPs to include enforceable emission
limitations and other control measures, means, or techniques, as well
as schedules and timetables for compliance, as may be necessary or
appropriate to meet the applicable requirements. This submission is
required to demonstrate that the state of Michigan can comply with the
implementation of the NAAQS 2015 Ozone standard.
Under Part 55 of the Natural Resources Protection Act, (PA 451)
promulgated in 1994, Michigan Compiled Laws (MCL) Sections 324.5503 and
324.5512 authorize the EGLE director to regulate the discharge of air
pollutants, to create rules and to establish standards regarding air
quality and emissions.
EPA's 2013 Guidance states that to satisfy section 110(a)(2)(A)
requirements, ``an air agency's submission should identify existing
EPA-approved SIP provisions or new SIP provisions that the air agency
has adopted and submitted for EPA approval that limit emissions of
pollutants relevant to the subject NAAQS, including precursors of the
relevant NAAQS pollutant where applicable.''
We believe that EGLE has the necessary components contained in its
MCL and MAC to comply with the 2015 NAAQS Ozone standard. Emission
limits for ozone precursors are contained in Michigan Administrative
Code (MAC) Rules 336.1101 through 336.2908. Specifically, MAC Rules
336.1601 through 336.1661 apply to existing sources of volatile organic
compounds (VOC), Rules 336.1701 through 336.1710 apply to new sources
of VOCs, and Rules 336.1801 through 1834 apply to oxides of nitrogen
(NOX) from stationary sources. Methods of control and
compliance are contained within these rules.
In this rulemaking, EPA is not proposing to approve any new
provisions in MCL Chapter 336 or MCL Chapter 324. EPA is also not
proposing to approve or disapprove any existing state provisions or
rules related to start-up, shutdown or malfunction or director's
discretion in the context of section 110(a)(2)(A). EPA proposes that
Michigan has met the infrastructure SIP requirements of section
110(a)(2)(A) with respect to the 2015 ozone NAAQS.
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System
This section requires SIPs to provide for installation and
operation of devices used to monitor, compile, and analyze ambient air
quality data, and upon request, make such data available to EPA. These
requirements include monitoring air quality for the relevant NAAQS
pollutants at the proper locations in accordance with network
requirements (40 CFR parts 53 and 58), submitting said data to the Air
Quality System (AQS) in a timely manner (40 CFR part 58), providing the
data with description of any discrepancies to the appropriate EPA
Regional Office (40 CFR 58.10) and obtaining EPA approval for any
changes to monitoring sites or network plan.
EGLE's annual reporting requirements are contained in Rules 336.201
through 336.205 of MAC. EGLE enters air monitoring data into AQS, and
the state provides EPA with prior notification when changes to its
monitoring network or plan are being considered. An annual network
review is submitted to EPA to ensure EGLE's air monitoring operations
comply with applicable Federal requirements, including the updated
ozone NAAQS standard. The last submission to EPA was approved on
October 28, 2020. EPA approved air quality monitors and monitor
locations capable of detecting ozone and ozone precursors at the
revised NAAQS level. EPA proposes that EGLE has met the infrastructure
SIP requirements of section 110(a)(2)(B) with respect to the 2015 ozone
NAAQS.
C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures;
Minor NSR; PSD
This section requires SIPs to set forth a program providing for
enforcement of all SIP measures, and the regulation of construction of
new and modified stationary sources to meet New Source Review (NSR)
requirements under Prevention of Significant Deterioration (PSD) and
Nonattainment NSR (NNSR) programs. Part C of the CAA (sections 160-
169B) addresses PSD, while part D of the CAA (sections 171-193)
addresses NNSR requirements. EPA's 2013 Guidance states that the NNSR
requirements of section 110(a)(2)(C) are generally outside the scope of
infrastructure SIPs; however, a state must provide for regulation of
minor sources and minor modifications (minor NSR).
1. Program for Enforcement of Control Measures
A state's infrastructure SIP submission should identify the
statutes, regulations, or other provisions in the SIP that provide for
enforcement of emission limits and control measures. EGLE maintains
this authority through MCL 324.5501-324.5542. The authority for
rulemaking to establish emission limits and promulgate rules for permit
programs is contained in MCL 324.5505 and MCL 324.5506. MCL 324.5526
and 324.5528 gives EGLE authority to reasonably inspect facilities and
to enforce violations of the established rules, respectively. Civil
action may be taken against any entity that violates these provisions
under PA 451. Additional enforcement provisions including voluntary
agreement of investigation, notice to discontinue pollution, power of
investigation and inspection, and other violation rules are contained
in MCL 324.5515, 324.5518 and 324.5526-324.5532 respectively. EPA
proposes that EGLE meets the requirements of 110(a)(2)(C) with respect
to enforceability of control measures contained in its MCL regarding
the 2015 ozone NAAQS.
2. Minor NSR
To satisfy the sub element for preconstruction regulation of the
modification and construction of minor stationary sources and the minor
modification of major stationary sources, an infrastructure SIP
submission should identify the existing EPA approved SIP provisions
and/or include new provisions that govern the minor source pre-
construction program that regulates emissions of the relevant NAAQS
pollutant(s). The EPA rules addressing SIP requirements for pre-
construction regulatory programs that apply to minor sources and minor
modifications are at 40 CFR 51.160 through 51.164.
The State of Michigan's minor source permit to install rules are
contained in Part 2 (Air Use Approval) of the Michigan Administrative
Code. Changes to the Part 2 rules were submitted on November 12, 1993;
May 16, 1996; April 3, 1998; September 2, 2003; March 24, 2009; and
February 28, 2017. EPA
[[Page 35249]]
approved changes to the Part 2 rules most recently in a final approval
dated July 1, 2019 (84 FR 25180), and therefore proposes that Michigan
has met this set of infrastructure SIP requirements of section
110(a)(2)(C) with respect to the 2015 ozone NAAQS.
3. PSD
To satisfy the sub element regarding the PSD program required by
CAA title I part C, an infrastructure SIP submission should demonstrate
that one or more air agencies have the authority to implement a
comprehensive PSD permit program under CAA title I part C, for all PSD-
subject sources located in areas that are designated attainment or
unclassifiable for one or more NAAQS. The infrastructure SIP submission
should also identify the existing SIP provisions that govern the major
source PSD program.
The evaluation of each state's submission addressing the
infrastructure SIP requirements of section 110(a)(2)(C) covers: (i)
Enforcement of SIP measures; (ii) PSD provisions that explicitly
identify NOX as a precursor to ozone in the PSD program;
(iii) identification of precursors to PM2.5 \3\ and
identification of PM2.5 and PM10 \4\ condensables
in the PSD program; (iv) PM2.5 increments in the PSD
program; and, (v) greenhouse gas (GHG) permitting and the ``Tailoring
Rule.'' \5\
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\3\ PM2.5 refers to particles with an aerodynamic
diameter of less than or equal to 2.5 micrometers, also referred to
as ``fine'' particles.
\4\ PM10 refers to particles with an aerodynamic
diameter of less than or equal to 10 micrometers.
\5\ In EPA's April 28, 2011 proposed rulemaking for
infrastructure SIPs for the 1997 ozone and PM2.5 NAAQS,
we stated that each state's PSD program must meet applicable
requirements for evaluation of all regulated NSR pollutants in PSD
permits (76 FR 23757 at 23760). This view was reiterated in EPA's
August 2, 2012 proposed rulemaking for infrastructure SIPs for the
2006 PM2.5 NAAQS (77 FR 45992 at 45998). In other words,
if a state lacks provisions needed to adequately address
NOX as a precursor to ozone, PM2.5 precursors,
PM2.5 and PM10 condensables, PM2.5
increments, or the Federal GHG permitting thresholds, the provisions
of section 110(a)(2)(C) requiring a suitable PSD permitting program
must be considered not to be met irrespective of the NAAQS that
triggered the requirement to submit an infrastructure SIP, including
the 2015 ozone NAAQS.
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Sources in Michigan that install equipment that will emit ozone
precursors are subject to permit-to-install regulations under MAC Rules
336.1201 through 336.1209 and include consideration of VOCs and
NOX. PSD program regulations (MAC Rules 336.2801 through R
336.2823) require any new major or modified source to undergo PSD
review.\6\
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\6\ Effective February 16, 2017, EPA updated the modeling
appendix at 40 CFR part 51, appendix W (82 FR 5182). EPA proposed
approval of Michigan Part 9 rules (86 FR 15837) on March 24, 2021
incorporating the CFR update. The finalization of the rule update
will dictate finalization of this element.
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a. PSD Provisions That Explicitly Identify NOX as a
Precursor to Ozone in the PSD Program
EPA's ``Final Rule to Implement the 8-Hour Ozone National Ambient
Air Quality Standard--Phase 2; Final Rule to Implement Certain Aspects
of the 1990 Amendments Relating to New Source Review and Prevention of
Significant Deterioration as They Apply in Carbon Monoxide, Particulate
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase
2 Rule) was published on November 29, 2005. Among other requirements,
the Phase 2 Rule obligated states to revise their PSD programs to
explicitly identify NOX as a precursor to ozone (70 FR 71612
at 71679, 71699-71700). This requirement was codified in 40 CFR
51.166.7. EPA approved revisions to Michigan's PSD SIP reflecting these
requirements on April 4, 2014 (see 79 FR 18802), and therefore proposes
that Michigan has met the set of infrastructure SIP requirements of
section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.
b. Identification of Precursors to PM2.5 and the
Identification of PM2.5 and PM10 Condensables in
the PSD Program
On May 16, 2008 (see 73 FR 28321), EPA issued the Final Rule on the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule).
The 2008 NSR Rule finalized several new requirements for SIPs to
address sources that emit direct PM2.5 and other pollutants
that contribute to secondary PM2.5 formation. One of these
requirements is for NSR permits to address pollutants responsible for
the secondary formation of PM2.5, otherwise known as
precursors. In the 2008 rule, EPA identified precursors to
PM2.5 for the PSD program to be SO2 and
NOX (unless the state demonstrates to the Administrator's
satisfaction or EPA demonstrates that NOX emissions in an
area are not a significant contributor to that area's ambient
PM2.5 concentrations). The 2008 NSR Rule also specifies that
VOCs are not considered to be precursors to PM2.5 in the PSD
program unless the state demonstrates to the Administrator's
satisfaction or EPA demonstrates that emissions of VOCs in an area are
significant contributors to that area's ambient PM2.5
concentrations.
The explicit references to SO2, NOX, and VOCs
as they pertain to secondary PM2.5 formation are codified at
40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of
identifying pollutants that are precursors to PM2.5, the
2008 NSR Rule also required states to revise the definition of
``significant'' as it relates to a net emissions increase or the
potential of a source to emit pollutants. Specifically, 40 CFR
51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define ``significant'' for
PM2.5 to mean the following emissions rates: 10 tons per
year (tpy) of direct PM2.5; 40 tpy of SO2; and 40
tpy of NOX (unless the state demonstrates to the
Administrator's satisfaction or EPA demonstrates that NOX
emissions in an area are not a significant contributor to that area's
ambient PM2.5 concentrations). The deadline for states to
submit SIP revisions to their PSD programs incorporating these changes
was May 16, 2011 (see 73 FR 28321 at 28341).\7\
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\7\ EPA notes that on January 4, 2013, the U.S. Court of Appeals
for the D.C. Circuit, in Natural Resources Defense Council v. EPA,
706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008
NSR Rule in accordance with the CAA's requirements for
PM10 nonattainment areas (Title I, part D, subpart 4),
and not the general requirements for nonattainment areas under
subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250).
As the subpart 4 provisions apply only to nonattainment areas, EPA
does not consider the portions of the 2008 rule that address
requirements for PM2.5 attainment and unclassifiable
areas to be affected by the court's opinion. Moreover, EPA does not
anticipate the need to revise any PSD requirements promulgated by
the 2008 NSR rule in order to comply with the court's decision.
Accordingly, EPA's approval of Michigan's infrastructure SIP as to
elements (C), (D)(i)(II), or (J) with respect to the PSD
requirements promulgated by the 2008 implementation rule does not
conflict with the court's opinion. The court's decision with respect
to the nonattainment NSR requirements promulgated by the 2008
implementation rule also does not affect EPA's action on the present
infrastructure action. EPA interprets the CAA to exclude
nonattainment area requirements, including requirements associated
with a nonattainment NSR program, from infrastructure SIP
submissions due three years after adoption or revision of a NAAQS.
Instead, these elements are typically referred to as nonattainment
SIP or attainment plan elements, which would be due by the dates
statutorily prescribed under subpart 2 through 5 under part D,
extending as far as 10 years following designations for some
elements.
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The 2008 NSR Rule did not require states to immediately account for
gases that could condense to form particulate matter, known as
condensables, in PM2.5 and PM10 emission limits
in NSR permits. Instead, EPA determined that states had to account for
PM2.5 and PM10 condensables for applicability
determinations and in establishing emissions limitations for
PM2.5 and PM10 in PSD permits beginning on or
after January 1, 2011. This requirement is codified in 40 CFR
51.166(b)(49)(i)(a)
[[Page 35250]]
and 40 CFR 52.21(b)(50)(i)(a). Revisions to states' PSD programs
incorporating the inclusion of condensables were required to be
submitted to EPA by May 16, 2011 (see 73 FR 28321 at 28341). EPA
approved revisions to Michigan's PSD SIP reflecting these requirements
on April 4, 2014 (see 79 FR 18802), and therefore proposes that
Michigan has met this set of infrastructure SIP requirements of section
110(a)(2)(C) with respect to the 2015 ozone NAAQS.
c. PM2.5 Increments in the PSD Program
On October 20, 2010, EPA issued the final rule on the ``Prevention
of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5
Micrometers (PM2.5) Increments, Significant Impact Levels
(SILs) and Significant Monitoring Concentration (SMC)'' (2010 NSR
Rule). This rule established several components for making PSD
permitting determinations for PM2.5, including a system of
``increments'' which is the mechanism used to estimate significant
deterioration of ambient air quality for a pollutant. These increments
are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c), and are included
in Table 1 below.
Table 1--PM2.5 Increments Established by the 2010 NSR Rule in Micrograms
per Cubic Meter
------------------------------------------------------------------------
Annual
arithmetic 24-hour max
mean
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Class I................................. 1 2
Class II................................ 4 9
Class III............................... 8 18
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The 2010 NSR Rule also established a new ``major source baseline
date'' for PM2.5 as October 20, 2010, and a new trigger date
for PM2.5 as October 20, 2011. These revisions are codified
in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR
52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule
revised the definition of ``baseline area'' to include a level of
significance of 0.3 micrograms per cubic meter, annual average, for
PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i)
and 40 CFR 52.21(b)(15)(i). On April 4, 2014 (79 FR 18802), EPA
finalized approval of the applicable infrastructure SIP PSD revisions;
therefore, we are proposing that Michigan has met this set of
infrastructure SIP requirements of section 110(a)(2)(C) with respect to
the 2015 ozone NAAQS.
d. GHG Permitting and the ``Tailoring Rule'' in the PSD Program
With respect to the requirements of section 110(a)(2)(C) as well as
section 110(a)(2)(J), EPA interprets the CAA to require each state to
make an infrastructure SIP submission for a new or revised NAAQS that
demonstrates that the air agency has a complete PSD permitting program
meeting the current requirements for all regulated NSR pollutants. The
requirements of section 110(a)(2)(D)(i)(II) may also be satisfied by
demonstrating that the air agency has a complete PSD permitting program
correctly addressing all regulated NSR pollutants. EGLE has shown that
it currently has a PSD program in place that covers all regulated NSR
pollutants, including GHGs.
On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. In the case Utility Air Regulatory Group v. Environmental
Protection Agency, 134 S. Ct. 2427, the Supreme Court said that EPA may
not treat GHGs as an air pollutant for purposes of determining whether
a source is a major source required to obtain a PSD permit. The Court
also said that EPA could continue to require that PSD permits,
otherwise required based on emissions of pollutants other than GHGs,
contain limitations on GHG emissions based on the application of Best
Available Control Technology (BACT).
In accordance with the Court's decision, on April 10, 2015, the
U.S. Court of Appeals for the District of Columbia Circuit (the D.C.
Circuit) issued an amended judgment vacating the regulations that
implemented Step 2 of the EPA's PSD and Title V GHG Tailoring Rule, but
not the regulations that implement Step 1 of that rule. Step 1 of the
Tailoring Rule covers sources that are required to obtain a PSD permit
based on emissions of pollutants other than GHGs. Step 2 applied to
sources that emitted only GHGs above the thresholds triggering the
requirement to obtain a PSD permit. The amended judgment preserves,
without the need for additional rulemaking by the EPA, the application
of the BACT requirement to GHG emissions from Step 1 or ``anyway''
sources. With respect to Step 2 sources, the D.C. Circuit's amended
judgment vacated the regulations at issue in the litigation, including
40 CFR 51.166(b)(48)(v), ``to the extent they require a stationary
source to obtain a PSD permit if greenhouse gases are the only
pollutant (i) that the source emits or has the potential to emit above
the applicable major source thresholds, or (ii) for which there is a
significant emission increase from a modification.''
EPA is planning to take additional steps to revise Federal PSD
rules to address the Supreme Court's opinion and subsequent D.C.
Circuit's ruling. Some states have begun to revise their existing SIP-
approved PSD programs to address these court decisions, and some states
may prefer not to initiate this process until they have more
information about the planned revisions to EPA's PSD regulations. EPA
is not expecting states to have revised their PSD programs in
anticipation of EPA's planned actions to revise its PSD program rules
in response to the court decisions. For purposes of infrastructure SIP
submissions, EPA is only evaluating such submissions to ensure that the
state's program addresses GHGs consistent with both court decisions.
At present, EPA is proposing that Michigan's SIP is sufficient to
satisfy Elements C, D(i)(II), and J with respect to GHGs because the
PSD permitting program previously approved by EPA into the SIP
continues to require that PSD permits (otherwise required based on
emissions of pollutants other than GHGs) contain limitations on GHG
emissions based on the application of BACT. Although the approved
Michigan PSD permitting program may currently contain provisions that
are no longer necessary in light of the Supreme Court decision, this
does not render the infrastructure SIP submission inadequate to satisfy
Elements C, (D)(i)(II), and J. The SIP contains the necessary PSD
requirements at this time, and the application of those requirements is
not impeded by the presence of other previously-approved provisions
regarding the permitting of sources of GHGs that EPA does not consider
necessary at this time in light of the Supreme Court decision.
For the purposes of the 2015 ozone NAAQS infrastructure SIP, EPA
reiterates that NSR Reform regulations are not within the scope of
these actions. Therefore, we are not taking action on existing NSR
Reform regulations for Michigan. EPA approved Michigan's minor NSR
program on May 6, 1980 (see 45 FR 29790); and since that date, EGLE and
EPA have relied on the existing minor NSR program to ensure that new
and modified sources not captured by the major NSR permitting programs
do not interfere with attainment and maintenance of the 2015 ozone
NAAQS.
Certain sub elements in this section overlap with elements of
section 110(a)(2)(D)(i), section 110(a)(2)(E) and
[[Page 35251]]
section 110(a)(2)(J). These links will be discussed in the appropriate
areas below. EPA proposes that Michigan has met the infrastructure SIP
requirements of section 110(a)(2)(C) with respect to the 2015 ozone
NAAQS.
D. Section 110(a)(2)(D)--Interstate Transport
Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct
components, commonly referred to as ``prongs,'' that must be addressed
in infrastructure SIP submissions. The first two prongs, which are
codified in section 110(a)(2)(D)(i)(I), prohibit any source or other
type of emissions activity in one state from contributing significantly
to nonattainment of the NAAQS in another state (prong 1) and from
interfering with maintenance of the NAAQS in another state (prong 2).
The third and fourth prongs, which are codified in section
110(a)(2)(D)(i)(II), prohibit emissions activity in one state from
interfering with measures required to prevent significant deterioration
of air quality in another state (prong 3) or from interfering with
measures to protect visibility in another state (prong 4).
Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions
prohibiting any source or other type of emissions activity in one state
from contributing significantly to nonattainment, or interfering with
maintenance, of the NAAQS in another state.
Section 110(a)(2)(D)(i)(II) requires that SIPs include provisions
prohibiting any source or other type of emissions activity in one state
from interfering with measures required to prevent significant
deterioration of air quality or to protect visibility in another state.
1. Significant Contribution to Nonattainment
In this rulemaking, EPA is not evaluating section
110(a)(2)(D)(i)(I) requirements relating to significant contribution to
nonattainment for the 2015 ozone NAAQS. Instead, EPA will evaluate
these requirements in a separate rulemaking.
2. Interference With Maintenance
In this rulemaking, EPA is not evaluating section
110(a)(2)(D)(i)(I) requirements relating to significant contribution to
nonattainment for the 2015 ozone NAAQS. Instead, EPA will evaluate
these requirements in a separate rulemaking.
3. Interference With PSD
EPA notes that Michigan's satisfaction of the applicable
infrastructure SIP PSD requirements for the 2015 ozone NAAQS have been
detailed in the section addressing section 110(a)(2)(C). EPA further
notes that the proposed actions in that section related to PSD are
consistent with the proposed actions related to PSD for section
110(a)(2)(D)(i)(II), and they are reiterated below.
EPA has previously approved revisions to Michigan's SIP that meet
certain requirements obligated by the Phase 2 Rule and the 2008 NSR
Rule. These revisions included provisions that: Explicitly identify
NOX as a precursor to ozone, explicitly identify
SO2 and NOX as precursors to PM2.5 and
regulate condensable PM2.5 and PM10 in
applicability determinations and establishing emissions limits. EPA has
also previously approved revisions to Michigan's SIP that incorporate
the PM2.5 increments and the associated implementation
regulations including the major source baseline date, trigger date, and
level of significance for PM2.5 per the 2010 NSR Rule. EPA
is proposing that Michigan's SIP contains provisions that adequately
address the 2015 ozone NAAQS.
States also have an obligation to ensure that sources located in
nonattainment areas do not interfere with a neighboring state's PSD
program. One way that this requirement can be satisfied is through an
NNSR program consistent with the CAA that addresses any pollutants for
which there is a designated nonattainment area within the state.
Michigan's EPA approved NNSR regulations found in Part 2 of the
SIP, specifically in Michigan Administrative Code sections Rules
336.1220 and R 336.1221, are consistent with 40 CFR 51.165, or 40 CFR
part 51, appendix S. Therefore, EPA proposes that Michigan has met all
the applicable PSD requirements for the 2015 ozone NAAQS for transport
prong 3 related to section 110(a)(2)(D)(i)(II).
4. Interference With Visibility Protection
In this rulemaking, EPA is proposing to disapprove Michigan's
satisfaction of the visibility protection requirements of section
110(a)(2)(D)(i)(II), transport prong 4, for the 2015 ozone NAAQS.
Michigan has a partially approved Regional Haze Plan and is subject to
FIPs for a few source categories. See 81 FR 21672 (April 12, 2016) for
more information on the FIPs that apply to this area. EPA is proposing
to disapprove because Michigan does not have a fully approved Regional
Haze SIP; however, because the FIP clocks were started by a different
action, and the FIPs are already in place, no further action is needed
as a result of this element.
5. Interstate and International Pollution Abatement
Section 110(a)(2)(D)(ii) requires each SIP to contain adequate
provisions requiring compliance with the applicable requirements of
section 126 and section 115 (relating to interstate and international
pollution abatement, respectively).
Section 126(a) requires new or modified sources to notify
neighboring states of potential impacts from the source. The statute
does not specify the method by which the source should provide the
notification. States with SIP-approved PSD programs must have a
provision requiring such notification by new or modified sources. A
lack of such a requirement in state rules would be grounds for
disapproval of this element.
Michigan has provisions in its EPA approved PSD program in Michigan
Administrative Code Rule 336.2817 requiring new or modified sources to
notify neighboring states of potential negative air quality impacts and
has referenced this program as having adequate provisions to meet the
requirements of section 126(a). EPA is proposing that Michigan has met
the infrastructure SIP requirements of section 126(a). Michigan does
not have any obligations under any other subsection of section 126, nor
does it have any pending obligations under section 115. EPA, therefore,
is proposing that Michigan has met all applicable infrastructure SIP
requirements of section 110(a)(2)(D)(ii) for the 2015 ozone NAAQS.
E. Section 110(a)(2)(E)--Adequate Authority and Resources; State Board
Requirements
This section requires each state to provide for adequate personnel,
funding, and legal authority under state law to carry out its SIP, and
related issues. Section 110(a)(2)(E)(ii) also requires each state to
comply with the requirements respecting state boards under section 128.
1. Adequate Resources
To satisfy the adequate resources requirements of section
110(a)(2)(E), the state should provide assurances that its air agency
has adequate resources, personnel, and legal authority to implement the
relevant NAAQS.
EGLE's SIP program is funded through 105 and 103 grants and
matching funds from the state's General Fund. As discussed in earlier
sections,
[[Page 35252]]
EGLE has the legal authority to carry out the Michigan SIP under Act
451 and the Executive Reorganization Order 2011-1. Michigan's PSD
regulations provide adequate resources to permit GHG sources. EPA
proposes that Michigan has met the infrastructure SIP requirements of
this portion of section 110(a)(2)(E) with respect to the 2015 ozone
NAAQS.
2. State Board Requirements
In this rulemaking, EPA is not proposing to approve or disapprove
Michigan's satisfaction of the state board requirements of section
110(a)(2)(E) for the 2015 ozone NAAQS. Instead, EPA will evaluate
Michigan's compliance with these requirements in a separate rulemaking.
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
Section 110(a)(2)(F) contains several requirements, each of which
are described below.
States must establish a system to monitor emissions from stationary
sources and submit periodic emissions reports. Each plan shall also
require the installation, maintenance, and replacement of equipment,
and the implementation of other necessary steps, by owners or operators
of stationary sources to monitor emissions from such sources. The state
plan shall also require periodic reports on the nature and amounts of
emissions and emissions-related data from such sources, and correlation
of such reports by each state agency with any emission limitations or
standards established pursuant to this chapter. Lastly, the reports
shall be available at reasonable times for public inspection.
EGLE implements a stationary source monitoring program under the
authority of MCL 324.5512 and MCL 324.5503 of Act 451. Additional
emissions testing, sampling, and reporting requirements are found in
Michigan Administrative Code Rules 336.201 through 336.202 and Rules
336.2011 through 336.2199. Emissions data is submitted to EPA through
the National Emissions Inventory system and is available to the public
online and upon request. EPA proposes that Michigan has satisfied the
infrastructure SIP requirements of section 110(a)(2)(F) with respect to
the 2015 ozone NAAQS.
G. Section 110(a)(2)(G)--Emergency Episodes
This section requires states to have the authority to revise their
SIPs in response to changes in the NAAQS, availability of improved
methods for attaining the NAAQS, or to an EPA finding that the SIP is
substantially inadequate.
EGLE has the authority to require immediate discontinuation of air
contamination discharges that constitute an imminent and substantial
endangerment to public health, safety, welfare, or the environment
under MCL 324.5518 of Act 451. MCL 324.5530 provides for civil action
by the Michigan Attorney General for a violation as just described. EPA
proposes that Michigan has met the applicable infrastructure SIP
requirements of section 110(a)(2)(G) related to authority to implement
measures to restrain sources from causing or contributing to emissions
which present an imminent and substantial endangerment to public health
or welfare, or the environment with respect to the 2015 ozone NAAQS.
H. Section 110(a)(2)(H)--Future SIP Revisions
This section requires states to have the authority to revise their
SIPs in response to changes in the NAAQS, availability of improved
methods for attaining the NAAQS, or to an EPA finding that the SIP is
substantially inadequate.
EGLE continues to update and implement needed revisions to
Michigan's SIP as necessary to meet ambient air quality standards.
Authority for EGLE to adopt emissions standards and compliance
schedules is found at MCL 324.5512 and MCL 324.5503 of Act 451. EPA
proposes that Michigan has met the infrastructure SIP requirements of
section 110(a)(2)(H) with respect to the 2015 ozone NAAQS.
I. Section 110(a)(2)(I)--Nonattainment Planning Requirements of Part D
The CAA requires that each plan or plan revision for an area
designated as a nonattainment area meet the applicable requirements of
part D of the CAA. Part D relates to nonattainment areas.
EPA has determined that section 110(a)(2)(I) is not applicable to
the infrastructure SIP process. Instead, EPA takes action on part D
attainment plans through separate processes.
J. Section 110(a)(2)(J)--Consultation With Government Officials; Public
Notification; PSD; Visibility Protection
The evaluation of the submissions from Michigan with respect to the
requirements of section 110(a)(2)(J) is described below.
1. Consultation With Government Officials
States must provide a process for consultation with local
governments and Federal Land Managers (FLMs) carrying out NAAQS
implementation requirements.
Michigan actively participates in the regional planning efforts
that include business, community groups, state rule developers,
representatives from the FLMs, and other affected stakeholders.
Michigan Administrative Code Rule 336.2816 requires that FLMs are
provided with notification of permit applications that may impact class
I areas. Additionally, Michigan is an active member of the Lake
Michigan Air Directors Consortium, which consists of collaboration with
the States of Illinois, Wisconsin, Indiana, Minnesota, and Ohio. EPA
proposes that Michigan has met the infrastructure SIP requirements of
this portion of section 110(a)(2)(J) with respect to the 2015 ozone
NAAQS.
2. Public Notification
Section 110(a)(2)(J) also requires states to notify the public if
NAAQS are exceeded in an area and to enhance public awareness of
measures that can be taken to prevent exceedances.
EGLE notifies the public if there are NAAQS exceedances and of any
public health hazards associated with those exceedances through
CleanAirAction!,\8\ AirNow,\9\, and EnviroFlash \10\ as well as posting
on its website.\11\ EGLE published an annual air quality report
comparing Michigan monitors to the NAAQS. EPA proposes that Michigan
has met the infrastructure SIP requirements of this portion of section
110(a)(2)(J) with respect to the 2015 ozone NAAQS.
---------------------------------------------------------------------------
\8\ https://www.wmcac.org/todays-forecast.
\9\ https://www.airnow.gov/.
\10\ https://www.michigan.gov/egle/0,9429,7-135-3310_70316_4195-
101321-
,00.html#:~:text=EnviroFlash%20is%20a%20free%20service,match%20expect
ed%20air%20quality%20conditions.
\11\ https://www.michigan.gov/egle/0,9429,7-135-3310-,00.html.
---------------------------------------------------------------------------
3. PSD
States must meet applicable requirements of section 110(a)(2)(C)
related to PSD. EGLE's PSD program in the context of infrastructure
SIPs has already been discussed in the paragraphs addressing section
110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes that the proposed
actions for those sections are consistent with the proposed actions for
this portion of section 110(a)(2)(J). Therefore, EPA proposes that
Michigan has met all of the infrastructure SIP requirements for
[[Page 35253]]
PSD associated with section 110(a)(2)(D)(J) for the 2015 ozone NAAQS.
4. Visibility Protection
States are subject to visibility and regional haze program
requirements under part C of the CAA (which includes sections 169A and
169B). In the event of the establishment of a new NAAQS, however, the
visibility and regional haze program requirements under part C do not
change. Thus, we find that there is no new visibility obligation
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes
effective. In other words, the visibility protection requirements of
section 110(a)(2)(J) are not germane to infrastructure SIPs for the
2015 ozone NAAQS.
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
SIPs must provide for performing air quality modeling for
predicting effects on air quality of emissions of any NAAQS pollutant
and submission of such data to EPA upon request.
EGLE continues to review the potential impact of major, and some
minor, new and modified sources using computer models. Effective
February 16, 2017, EPA updated the modeling appendix at 40 CFR part 51,
appendix W (82 FR 5182). This action included enhancements to the
formulation and application of the EPA's preferred near-field
dispersion modeling system, AERMOD (American Meteorological Society
(AMS)/EPA Regulatory Model), and the incorporation of a tiered
demonstration approach to address the secondary chemical formation of
ozone and PM2.5 associated with precursor emissions from
single sources. EPA proposed approval of Michigan's Part 9 Rule Update
on March 24, 2021 (86 FR 15837) incorporating the CFR update. The
finalization of the rule update will dictate finalization of this
element. Modeling data are available to EPA or other interested parties
upon request. EPA proposes that Michigan has met the infrastructure SIP
requirements of section 110(a)(2)(K) with respect to the 2015 ozone
NAAQS.
L. Section 110(a)(2)(L)--Permitting Fees
EGLE implements and operates the title V permit program, which EPA
approved on December 4, 2001 (66 FR 62969) EPA approved revisions to
the program on February 28, 2006 (71 FR 9934). EGLE's authority to levy
and collect an annual air quality fee from fee-subject facilities is
found in section 324.5522 of Act 451. EPA proposes that Michigan has
met the infrastructure SIP requirements of section 110(a)(2)(L) with
respect to the 2015 ozone NAAQS.
M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local
Entities
States must consult with and allow participation from local
political subdivisions affected by the SIP.
EGLE regularly works with local political subdivisions for
attainment planning purposes and actively participates in regional
planning organizations. Rulemaking is subject to notice, comment, and
hearing requirements under the Michigan Administrative Procedures Act,
1969 PA 306 and is authorized in MCL 324.5512. EPA proposes that
Michigan has met the infrastructure SIP requirements of section
110(a)(2)(M) with respect to the 2015 ozone NAAQS.
III. What action is EPA taking?
EPA is proposing to approve most elements and disapprove one
element of a submission from EGLE certifying that its current SIP is
sufficient to meet the required infrastructure elements under sections
110(a)(1) and (2) for the 2015 ozone NAAQS. The disapproved prong 4
does not begin a new FIP clock, as FIPs are already in place in
response to those deficiencies.
EPA's proposed actions for the state's satisfaction of
infrastructure SIP requirements, by element of section 110(a)(2) are
contained in the table below.
------------------------------------------------------------------------
Element 2015 Ozone
------------------------------------------------------------------------
(A)--Emission limits and other control measures......... A
(B)--Ambient air quality monitoring/data system......... A
(C)1--Program for enforcement of control measures....... A
(C)2--Minor NSR......................................... A
(C)3--PSD............................................... A
(D)1--I Prong 1: Interstate transport--significant A
contribution to nonattainment..........................
(D)2--I Prong 2: Interstate transport--interference with A
maintenance............................................
(D)3--II Prong 3: Interstate transport--interference A
with PSD...............................................
(D)4--II Prong 4: Interstate transport--interference D
with visibility protection.............................
(D)5--Interstate and international pollution abatement.. A
(E)1--Adequate resources................................ A
(E)2--State board requirements.......................... NA
(F)--Stationary source monitoring system................ A
(G)--Emergency powers................................... A
(H)--Future SIP revisions............................... A
(I)--Nonattainment planning requirements of part D...... (*)
(J)1--Consultation with government officials............ A
(J)2--Public notification............................... A
(J)3--PSD............................................... A
(J)4--Visibility protection............................. (*)
(K)--Air quality modeling/data.......................... A
(L)--Permitting fees.................................... A
(M)--Consultation/participation by affected local A
entities...............................................
------------------------------------------------------------------------
In the above table, the key is as follows:
A............................... Approve.
D............................... Disapprove.
NA.............................. No Action/Separate Rulemaking.
*............................... Not germane to infrastructure SIPs.
IV. 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
[[Page 35254]]
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).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: June 28, 2021.
Cheryl Newton,
Acting Regional Administrator, Region 5.
[FR Doc. 2021-14152 Filed 7-1-21; 8:45 am]
BILLING CODE 6560-50-P