[Federal Register Volume 88, Number 21 (Wednesday, February 1, 2023)]
[Rules and Regulations]
[Pages 6633-6636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01936]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-HQ-OAR-2021-0742; FRL-10611-01-R5]


Finding of Failure To Attain and Reclassification of the Detroit 
Area as Moderate for the 2015 Ozone National Ambient Air Quality 
Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is determining that 
the Detroit area failed to attain the 2015 ozone National Ambient Air 
Quality Standards (NAAQS) by the applicable attainment date. The effect 
of failing to attain by the applicable attainment date is that the 
Detroit area will be reclassified by operation of law to ``Moderate'' 
nonattainment for the 2015 ozone NAAQS on March 1, 2023, the effective 
date of this final rule. Accordingly, the Michigan Department of 
Environment, Great Lakes, and Energy (EGLE) must submit State 
Implementation Plan (SIP) revisions and implement controls to satisfy 
the statutory and regulatory requirements for Moderate areas for the 
2015 ozone NAAQS according to the deadlines established in this final 
rule.

DATES: This final rule is effective on March 1, 2023.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2021-0742. 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

[[Page 6634]]

(CBI) or other information whose disclosure is restricted by statute. 
Certain other material, such as copyrighted material, is not placed on 
the internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either through 
www.regulations.gov or at the Environmental Protection Agency, Region 
5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, 
Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding Federal holidays and facility closures 
due to COVID-19. We recommend that you telephone Eric Svingen, 
Environmental Engineer, at (312) 353-4489 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Eric Svingen, Environmental Engineer, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 353-4489, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

I. Background Information

    Clean Air Act (CAA) section 181(b)(2) requires EPA to determine, 
based on the design value of an ozone nonattainment area as of the 
area's attainment deadline, whether the area has attained the ozone 
standard by that date.\1\ On August 3, 2018, EPA designated the Detroit 
area, consisting of Livingston, Macomb, Monroe, Oakland, St. Clair, 
Washtenaw, and Wayne Counties, as a Marginal nonattainment area for the 
2015 ozone NAAQS (83 FR 25776). On April 13, 2022, EPA proposed to 
determine that the Detroit area failed to attain the 2015 ozone NAAQS 
by August 3, 2021, the applicable attainment date for Marginal areas, 
and did not qualify for a 1-year attainment date extension (87 FR 
21842). The proposed determination was based upon complete, quality-
assured and certified ozone air quality monitoring data that showed 
that the design value for the area exceeded 0.070 parts per million 
(ppm) for the 2018-2020 period. EPA proposed that the Detroit area 
would be reclassified as a Moderate nonattainment area by operation of 
law on the effective date of a final action finding that the area 
failed to attain the 2015 ozone NAAQS by the applicable attainment date 
for Marginal areas. Once reclassified as Moderate, the Detroit area 
would be required to attain the 2015 ozone NAAQS ``as expeditiously as 
practicable'' but no later than 6 years after the initial designation 
as nonattainment, which in this case would be no later than August 3, 
2024.
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    \1\ An area's design value for the 2105 ozone NAAQS is the 
highest three-year average of the annual fourth-highest daily 
maximum eight-hour average concentrations of all monitors in the 
area. To determine whether an area has attained the ozone NAAQS 
prior to the attainment date, EPA considers the monitor-specific 
ozone design values in the area for the most recent three years with 
complete, quality-assured monitored data prior to the attainment 
deadline.
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    In the April 13, 2022, proposal, EPA solicited comment on adjusting 
the due dates, in accordance with CAA section 182(i), for submission 
and implementation deadlines for all SIP requirements that apply to 
Moderate areas. On October 7, 2022, EPA finalized its proposed action 
for 22 Marginal areas that failed to attain by the applicable 
attainment date (87 FR 60897). In the October 7, 2022, rulemaking, EPA 
provided a response to comments relevant to all areas subject to 
reclassification.

II. Moderate Area SIP Due Dates

    Once a nonattainment area is reclassified as Moderate, the 
responsible state agency must subsequently submit a SIP revision that 
satisfies the air quality planning requirements for a Moderate area 
under CAA section 182(b). SIP requirements that apply to Moderate areas 
are cumulative of CAA requirements for the Marginal classification and 
include additional Moderate area requirements as interpreted and 
described in the final SIP Requirements Rule for the 2015 ozone NAAQS 
(see CAA sections 172(c)(1) and 182(a) and (b), and 40 CFR 51.1300 
through 51.1319). These requirements include reasonably available 
control measures and reasonably available control technology (RACM/
RACT) and vehicle inspection and maintenance (I/M).
    EPA's April 13, 2022, proposed rule discusses EPA's basis for 
establishing deadlines for Moderate area SIP revisions and 
implementation of RACM/RACT and Basic I/M programs (87 FR 21842, 
21852). With respect to SIP requirements for Moderate areas, we 
proposed that for any of the Moderate area controls to influence 
attainment by the Moderate area attainment date, they would need to be 
implemented by the beginning of the 2023 ozone season at the latest. 
With respect to implementation deadlines for RACM/RACT, we proposed 
that the modeling and attainment demonstration requirements for 2015 
ozone NAAQS nonattainment areas classified Moderate or higher require 
that a state must provide for implementation of all control measures 
needed for attainment no later than the beginning of the attainment 
year ozone season, notwithstanding any alternative deadline established 
per 40 CFR 51.1312.\2\ For reclassified areas, EPA's implementing 
regulations for the 2015 ozone NAAQS require that the state shall 
provide for implementation of RACT as expeditiously as practicable, but 
no later than the start of the attainment year ozone season associated 
with the area's new attainment deadline, or January 1 of the third year 
after the associated SIP submission deadline, whichever is earlier, or 
the deadline established by the Administrator in the final action 
issuing the area reclassification.\3\ With respect to I/M, EPA proposed 
to allow areas newly required to implement Basic I/M up to 4 years 
after the effective date of designation and classification to fully 
implement the I/M program for states that do not intend to rely upon 
emission reductions from their Basic I/M program in attainment or 
reasonable further progress (RFP) SIPs.
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    \2\ See 40 CFR 51.1308(d).
    \3\ See 40 CFR 51.1312(a)(3)(ii).
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    EPA also discussed CAA section 182(i), under which the 
Administrator may adjust applicable deadlines for reclassified areas 
``to the extent such adjustment is necessary or appropriate to assure 
consistency among the required submissions.'' In the April 13, 2022, 
rulemaking, which proposed reclassification for Detroit as well as 23 
other areas, EPA noted that the ozone season begins in either January 
or March for the various areas.\4\ To avoid inconsistencies between 
areas with various ozone season start dates, EPA proposed under CAA 
section 182(i) to set a deadline of January 1, 2023, for Moderate area 
SIP revisions and implementation of RACM/RACT for all areas.
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    \4\ The ozone season is defined by state in 40 CFR part 58, 
appendix D. The ozone season for Michigan is March-October. See 80 
FR 65292, 65466-67 (October 26, 2015).
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    To avoid the impractical outcome whereby EPA might finalize a 
January 1, 2023, due date that has already passed for the Detroit area, 
and because March is the start of the ozone season in Michigan, EPA is 
instead finalizing March 1, 2023, as the due date for SIP revisions 
addressing Moderate requirements for the Detroit area. RACM/RACT for 
the area must be implemented as expeditiously as practicable, but no 
later than the same date.

[[Page 6635]]

    Regarding the requirement for a Basic I/M program, EPA is 
finalizing an implementation deadline of no later than 4 years after 
the effective date of reclassification should EGLE not intend to rely 
upon emission reductions from their Basic I/M program in attainment or 
reasonable further progress (RFP) SIPs.
    If an area attains the 2015 ozone NAAQS, the relevant state may 
request redesignation to attainment, provided the state can demonstrate 
that the criteria under CAA section 107(d)(3)(E) are met.\5\ On March 
14, 2022, EPA proposed to approve a January 3, 2022, request from EGLE 
to redesignate the Detroit area to attainment based on 2019-2021 
monitoring data showing attainment of the 2015 ozone NAAQS (87 FR 
14210). The comment period on EPA's proposed action closed on April 13, 
2022, and EPA is currently reviewing all public comments to further 
assess whether Michigan adequately addressed all requirements 
applicable to redesignation that applied to Detroit on the date of 
EGLE's submittal.
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    \5\ More information about redesignation is available at https://www.epa.gov/ground-level-ozone-pollution/redesignation-and-clean-data-policy-cdp.
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III. What action is EPA Taking?

    EPA is finalizing its proposed determination that the Detroit area 
failed to attain the 2015 ozone NAAQS by the applicable attainment date 
of August 3, 2021. Therefore, upon the effective date of this final 
action, the Detroit area will be reclassified by operation of law as 
Moderate for the 2015 ozone NAAQS. Once reclassified as Moderate, the 
Detroit area will be required to attain the standard ``as expeditiously 
as practicable'' but no later than 6 years after the initial 
designation as nonattainment, which in this case would be no later than 
August 3, 2024. Pursuant to CAA section 182(i), EPA is requiring 
Michigan to submit SIP revisions to address Moderate area requirements 
by the beginning of the ozone season, or March 1, 2023.

IV. Good Cause Exemption Under the Administrative Procedure Act (APA)

    EPA finds there is good cause for this action to become effective 
less than 30 days after publication. The March 1, 2023, effective date 
is authorized under 5 U.S.C. 553(d)(3) of the APA, which allows an 
effective date less than 30 days after publication as provided by the 
agency for good cause found and published with the rule. EPA believes 
that there is ``good cause'' to make this rule effective less than 30 
days after publication in the Federal Register to avoid any additional 
delay in development and implementation of the SIP requirements under 
182(b), given the closeness to the beginning of the 2023 ozone season 
and the proximity of EPA's final action to the submission and 
implementation deadlines described in this rule. The agency believes 
that establishing an effective date of this action simultaneous with 
due dates resulting from this action will reconcile the competing 
statutory interests by minimizing a potentially impractical outcome in 
which the area might otherwise be subject to Moderate nonattainment 
area statutory and regulatory due dates that would already have passed 
prior to the normal 30 days post-publication effective date. Further, 
although this action will become effective less than 30 days after 
publication, a state need not wait until EPA's finding of failure to 
attain and reclassification is made effective before beginning to 
develop an attainment plan for a higher classification of an air 
quality standard.

V. Statutory and Executive Order Reviews.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is exempt from review by the Office of Management and 
Budget (OMB) because it responds to the CAA requirement to determine 
whether areas designated nonattainment for an ozone NAAQS attained the 
standard by the applicable attainment date, and to take certain steps 
for areas that failed to attain.

B. Paperwork Reduction Act (PRA)

    This rule does not impose any new information collection burden 
under the PRA not already approved by the Office of Management and 
Budget. This action does not contain any information collection 
activities and serves only to make final: (1) determinations that the 
Detroit Marginal nonattainment area failed to attain the 2015 ozone 
standards by the August 3, 2021, attainment date where such areas will 
be reclassified as Moderate nonattainment for the 2015 ozone standards 
by operation of law upon the effective date of the final 
reclassification action; and (2) adjust any applicable implementation 
deadlines.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities. The 
determination of failure to attain the 2015 ozone standards (and 
resulting reclassifications), do not in and of themselves create any 
new requirements beyond what is mandated by the CAA. This final action 
would require the State to adopt and submit SIP revisions to satisfy 
CAA requirements and would not itself directly regulate any small 
entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local, or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the National Government and the states, or on the distribution of power 
and responsibilities among the various levels of government. The 
division of responsibility between the Federal Government and the 
states for purposes of implementing the NAAQS is established under the 
CAA.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action does not apply on any Indian 
reservation land, any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction, or non-reservation areas of 
Indian country. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 as applying to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. This action is not subject to Executive Order 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

[[Page 6636]]

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 establishes Federal executive policy on 
environmental justice. Its main provision directs Federal agencies, to 
the greatest extent practicable and permitted by law, to make 
environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. There is no information in the record indicating that 
this action would be inconsistent with the stated goals of Executive 
Order 12898 of achieving environmental justice for people of color, 
low-income populations, and indigenous peoples.

K. Congressional Review Act

    This action is subject to the Congressional Review Act, and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 3, 2023. 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 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: January 25, 2023.
Debra Shore,
Regional Administrator, Region 5.

    For the reasons stated in the preamble, 40 CFR part 81 is amended 
as follows:

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

0
1. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

0
2. Section 81.323 is amended in the table for ``Michigan--2015 8-Hour 
Ozone NAAQS [Primary and Secondary]'' by revising the entry for 
``Detroit, MI'' to read as follows:


Sec.  81.323  Michigan.

* * * * *

                                                            Michigan-2015 8-Hour Ozone NAAQS
                                                                 [Primary and secondary]
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                                                            Designation                                              Classification
        Designated area \1\         --------------------------------------------------------------------------------------------------------------------
                                               Date \2\                        Type                       Date \2\                       Type
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                                                                      * * * * * * *
Detroit, MI:.......................  ............................  Nonattainment..............  March 1, 2023..............  Moderate.
Livingston County..................
Macomb County......................
Monroe County......................
Oakland County.....................
St. Clair County...................
Washtenaw County...................
Wayne County.......................
 
                                                                      * * * * * * *
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\1\ Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the boundaries of any area of Indian country
  in this table, including any area of Indian country located in the larger designation area. The inclusion of any Indian country in the designation
  area is not a determination that the state has regulatory authority under the Clean Air Act for such Indian country.
\2\ This date is August 3, 2018, unless otherwise noted.

[FR Doc. 2023-01936 Filed 1-31-23; 8:45 am]
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