[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.
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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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