[Federal Register Volume 87, Number 97 (Thursday, May 19, 2022)]
[Rules and Regulations]
[Pages 30420-30423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10671]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2019-0215; FRL-8999-03-R5]


Air Plan Approval; Michigan; Partial Approval and Partial 
Disapproval for Infrastructure SIP Requirements for the 2015 Ozone 
NAAQS; Correction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; correction.

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SUMMARY: This action corrects an omission of timely comment and 
response in the September 28, 2021, Environmental Protection Agency 
(EPA) partial approval/partial disapproval of elements of a State 
Implementation Plan (SIP) submission from Michigan to address the 
infrastructure requirements of section 110 of the Clean Air Act (CAA) 
for the 2015 ozone National Ambient Air Quality Standards (NAAQS). 
Accordingly, this action amends the effective date of the final 
approval to reflect EPA's current response to the previously omitted 
comment.

DATES: This final rule is effective on May 19, 2022.

[[Page 30421]]


FOR FURTHER INFORMATION CONTACT: Olivia Davidson, Environmental 
Scientist, Attainment Planning and Maintenance Section, Air Programs 
Branch (AR18J), Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-0266, 
[email protected].

SUPPLEMENTARY INFORMATION: On July 2, 2021 (86 FR 35247), EPA proposed 
to approve most elements and disapprove an element of a SIP submission 
from the Michigan Department of Environment, Great Lakes, and Energy 
(EGLE) to address the required infrastructure elements of sections 
110(a)(1) and (2), as applicable, for the 2015 ozone NAAQS. EPA 
provided an explanation of the CAA requirements, a detailed analysis of 
the submission, and EPA's reasons for proposing approval, in the notice 
of proposed rulemaking (NPRM) and will not be restated here. The public 
comment period for this proposed rule ended on August 2, 2021. In the 
final rule published in the Federal Register on September 28, 2021 (86 
FR 53550), EPA mistakenly omitted comments submitted by Sierra Club in 
our response to comments. EPA received the comment letter on August 2, 
2021 shortly before the end of the comment period. This comment letter 
submitted by Sierra Club is summarized below along with EPA's 
responses.
    Comment: Sierra Club commented that EPA should examine whether 
Michigan has met the requirement of CAA sections 110(a)(2)(A) and 
110(a)(2)(E)(i), 42 U.S.C. 7410(a)(2)(A) and 7410(a)(2)(E)(i), in light 
of a 2017 Michigan Court of Claims opinion, United States Steel Corp. 
v. Dept. of Environmental Quality, No. 16-000202-MZ, 2017 WL 5974195 
(Mich. Ct. Cl. Oct. 4, 2017), that invalidated Michigan Administrative 
Code (MAC) 336.1430 (``Rule 430''). The commenter noted that Michigan 
promulgated Rule 430 in an effort to bring the Detroit area into 
attainment with the 2010 1-hour primary sulfur dioxide (SO2) 
NAAQS, by placing SO2 emission limits on a single facility. 
The commenter further noted that the Court invalidated Rule 430 because 
the limits applied to a single facility, thus failing the ``general 
applicability'' requirement of Michigan's Administrative Procedures 
Act, MCL 24.201 et seq. The implication of this comment is that 
Michigan lacks legal authority to regulate sources as necessary to 
implement the 2015 Ozone NAAQS, as required by CAA sections 
110(a)(2)(A) and 110(a)(2)(E)(i).
    Response: EPA disagrees with the commenter's concern that the 
Michigan Court of Claims decision in United States Steel Corp. v. Dept. 
of Environmental Quality, indicates that Michigan lacks legal authority 
to regulate sources as required by CAA sections 110(a)(2)(A) and 
110(a)(2)(E)(i). As an initial matter, EPA notes that the state court 
decision at issue pertained to implementation of the 2010 1-hour 
primary SO2 NAAQS, not the 2015 Ozone NAAQS. For most 
purposes, EPA normally evaluates infrastructure SIP submissions for 
purposes of the specific NAAQS that is at issue. In this instance, 
however, the implications of the state court decision could potentially 
affect the state's ability to implement control measures with respect 
to other NAAQS as well.
    In this light, EPA has evaluated whether the Michigan Court of 
Claims decision in question precludes the state from regulating 
specific sources as needed for purposes of meeting nonattainment plan 
requirements to result in attainment and maintenance of the NAAQS. 
Based on this review, EPA concludes that the court only decided that 
the state had improperly sought to impose emissions controls on the 
sources at issue through a rule that did not meet state law 
requirements for a ``rule of general applicability'' in violation of 
relevant state administrative procedures act requirements. By naming 
the specific affected source by name, rather than drafting the 
requirements in a form that would apply to all similar sources in the 
state, the court reasoned that the state law could not pass muster as a 
rule of general applicability.
    Instead, the court reasoned that the objective the state sought to 
achieve ``sounds more in the nature of that which is ordinarily only 
allowed after a contested case hearing or in the permit process.'' 
Moreover, the court noted that it was ``not unmindful of the facts that 
led to the promulgation of Rule 430 or situation that DEQ sought to 
address.'' Although the court expressly declined to advise how the 
state could properly impose emission limits on the source at issue via 
other means, elsewhere in the decision the court noted that the state 
and other sources ``agreed to revise pertinent DEQ permits.''
    EPA interprets these statements by the court to indicate that the 
state does have authority under Michigan law to impose necessary 
emission limitations on sources, as required to meet CAA requirements, 
via other legal mechanisms such as permits. EPA notes that in order to 
meet CAA SIP requirements, such as nonattainment plan requirements, the 
state would need to submit the emission limitations and other related 
permit terms (e.g., monitoring, reporting, and record keeping 
requirements) to EPA for approval into the federally enforceable SIP 
for Michigan.
    In addition, to the extent that the state prefers to proceed via 
generally applicable state regulations rather than permits, EPA expects 
that Michigan will draft future rules to avoid the concerns raised by 
the court which resulted in invalid SO2 limits and make 
necessary efforts to implement the 2015 Ozone NAAQS via other means 
consistent with state law and meeting CAA requirements for SIP 
provisions. Although the commenters expressed concern that the decision 
of the court in United States Steel Corp. v. Dept. of Environmental 
Quality indicated that the state lacks requisite authority to implement 
its SIP consistent with CAA requirements, EPA does not interpret the 
decision so broadly.
    Additionally, EPA also disagrees with the commenter that Michigan's 
SIP does not include ``enforceable emission limitations and other 
control measures . . . as may be necessary or appropriate to meet the 
applicable requirements'' CAA section 110(a)(2)(A) with respect to the 
2015 ozone NAAQS more broadly. As stated in the July 2, 2021 proposed 
rule (86 FR 35247), 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. Specifically, MCL 
Section 324.5503 states ``The department may . . . Promulgate rules to 
establish standards for ambient air quality and for emissions . . . 
Issue permits . . . subject to enforceable emission limitations and 
standards and other conditions reasonably necessary to assure 
compliance with all applicable requirements of this part, rules 
promulgated under this part, and the clean air act.'' and MCL Section 
324.5512 states ``(1) . . . department shall promulgate rules for 
purposes of doing all of the following: (a) Controlling or prohibiting 
air pollution. (b) Complying with the clean air act . . .''
    Michigan also imposes emission limits for ozone precursors in 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

[[Page 30422]]

and compliance are contained within these rules and incorporate EPA's 
New Source Performance Review standards and NOX budget 
trading program. Further, 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. Prevention of Significant 
Deterioration (PSD) program regulations (MAC Rules 336.2801 through 
Rule 336.2823) require any new major or modified source to undergo PSD 
review.\1\ EPA believes the emission limits for ozone and its 
precursors contained in these rules, in conjunction with the 
authorization to promulgate rules to assure compliance with the CAA in 
MCL Sections 324.5503 and 324.5512, satisfy the requirements of CAA 
section 110(a)(2)(A) with respect to infrastructure SIP requirements 
for purposes of the 2015 ozone NAAQS.
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    \1\ Effective February 16, 2017 (82 FR 5182), EPA updated the 
modeling appendix at 40 CFR part 51, appendix W. EPA proposed 
approval of Michigan Part 9 rules on March 24, 2021 (86 FR 15837), 
incorporating the CFR update. The finalization of the rule update 
will dictate finalization of this element.
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    Lastly, EPA reiterates that Michigan has provided necessary 
assurances that it has ``adequate . . . authority under State . . . law 
to carry out the implementation plan . . . and is not prohibited by any 
Provision of Federal or State law, from carrying out such 
implementation plan.'' As EPA noted in the July 2, 2021, proposed rule 
(86 FR 35247), EGLE stated in the SIP submission that it has the legal 
authority to carry out the Michigan SIP under Act 451 and the Executive 
Reorganization Order 2011-1. In addition, EGLE indicated that MCL 
324.5503 provides it with authority to enforce the Michigan SIP. 
Specifically, MCL 324.5503(f) gives EGLE the power to enforce permits, 
air quality fee requirements, and the requirements to obtain a permit, 
while 324.5503(g) gives EGLE the authority to institute proceedings to 
compel compliance. EGLE also provided a delegation letter in the 
submission from the Governor to the EGLE director that delegates 
authority to EGLE to ``. . . make any submittal, request, or 
application under the federal CAA, including the ability to carry out 
SIP requirements.'' This letter is included in the docket of this 
ruling. Therefore, EPA believes that Michigan has met the 
infrastructure SIP requirements of section 110(a)(2)(A) and 
110(a)(2)(E)(i) with respect to the 2015 Ozone NAAQS.
    This action amends the regulatory text to correct the effective 
date of our final approval to reflect our response to these additional 
comments, in addition to correcting the CFR citation to reflect that 
EGLE's submission meets the requirements of Section 110(a)(2)(E)(i), 
which was detailed in the July 2, 2021, proposed approval (86 FR 
35247), but mistakenly omitted in the CFR table.
    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. We have determined that 
there is good cause for making this rule final without prior proposal 
and opportunity for comment because we are merely correcting incorrect 
element approval citations and incorrect effective date citations in 
the related previous actions to address mistakenly omitted comments.

Statutory and Executive Order Reviews

    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). This action does not impose an information collection burden 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 
Because the agency has made a ``good cause'' finding that this action 
is not subject to notice-and-comment requirements under the 
Administrative Procedures Act or any other statute as indicated in the 
SUPPLEMENTARY INFORMATION section above, it is not subject to the 
regulatory flexibility provisions of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded 
Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). This action will 
not have substantial direct effects on the States, on the relationship 
between the National Government and the States, or on the distribution 
of power and responsibilities among the various levels of governments, 
as specified by E.O. 13132 (64 FR 43255, August 10, 1999). 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 E.O. 
13175 (65 FR 67249, November 9, 2000). This action is not subject to 
E.O. 13045 (62 FR 19885, April 23, 1997), because it is not 
economically significant. This action is also not subject to E.O. 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
technical correction action does not involve technical standards; thus 
the requirements of section 12(d) of the National Technology Transfer 
and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The 
action also does not involve special consideration of environmental 
justice related issues as required by E.O. 12898 (59 FR 7629, February 
16, 1994).
    This action is subject to the Congressional Review Act (CRA), and 
EPA will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. Section 808 allows the 
issuing agency to make a rule effective sooner than otherwise provided 
by the CRA if the agency makes a good cause finding that notice and 
public procedure is impracticable, unnecessary or contrary to the 
public interest. This determination must be supported by a brief 
statement. 5 U.S.C. 808(2). As stated previously, EPA had made such a 
good cause finding, including the reasons therefore, and established an 
effective date of May 19, 2022. This correction to 40 CFR part 52 for 
Michigan is not a ``major rule'' as defined by 5 U.S.C. 804(2).

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: May 12, 2022.
Debra Shore,
Regional Administrator, Region 5.

    For the reasons stated in the preamble, EPA amends 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. In Sec.  52.1170, the table in paragraph (e) is amended by revising 
the entry for ``Section 110(a)(2) infrastructure requirements for the 
2015 ozone NAAQS'' to read as follows:

[[Page 30423]]

Sec.  52.1170  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
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                                                              State
   Name of nonregulatory SIP      Applicable geographic or  submittal   EPA approval date         Comments
           provision                 nonattainment area        date
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                                                  * * * * * * *
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                                                 Infrastructure
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                                                  * * * * * * *
Section 110(a)(2)                Statewide................   3/8/2019  5/19/2022, [INSERT  Approved CAA
 infrastructure requirements                                            Federal Register    elements:
 for the 2015 ozone NAAQS.                                              CITATION].          110(a)(2)(A), (B),
                                                                                            (C), (D)(i)(II)
                                                                                            Prong 3, D(ii),
                                                                                            (E)(i), (F), (G),
                                                                                            (H), (J), (K), (L),
                                                                                            and (M). Disapproved
                                                                                            CAA element
                                                                                            110(a)(2)(D)(i)(II)
                                                                                            Prong 4. No action
                                                                                            on CAA element
                                                                                            110(a)(2)(D)(i)(I)
                                                                                            and
                                                                                            110(1)(2)(E)(ii).
 
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[FR Doc. 2022-10671 Filed 5-18-22; 8:45 am]
BILLING CODE 6560-50-P