[Federal Register Volume 88, Number 23 (Friday, February 3, 2023)]
[Proposed Rules]
[Pages 7382-7384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02284]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2023-0058; FRL-10634-01-R5]


Air Plan Approval; Michigan; Clean Data Determination for the 
Detroit Area for the 2015 Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
determine under the Clean Air Act (CAA) that the Detroit, Michigan 
nonattainment area (hereafter also referred to, respectively, as the 
``Detroit area'' or ``area'') has attained the 2015 ozone National 
Ambient Air Quality Standards (NAAQS or standard). This determination 
is based upon complete, quality-assured, and certified ambient air 
monitoring data for the 2020-2022 design period showing that the area 
achieved attainment of the 2015 ozone NAAQS. EPA also proposes to take 
final agency action on an exceptional events request submitted by the 
Michigan Department of Environment, Great Lakes, and Energy (EGLE) on 
January 26, 2023, and concurred on by EPA on January 30, 2023. As a 
result of these determinations, EPA is proposing to suspend the 
requirements for the area to submit attainment demonstrations and 
associated Reasonably Available Control Measures (RACM), Reasonable 
Further Progress (RFP) plans, contingency measures for failure to 
attain or make reasonable progress, and other planning State 
Implementation Plans (SIPs) related to attainment of the 2015 ozone 
NAAQS, for as long as the area continues to attain the 2015 ozone 
NAAQS. This action does not constitute a redesignation of the area to 
attainment of the 2015 ozone NAAQS, and the area remains designated 
nonattainment until such time as EPA determines that the area meets the 
CAA requirements for redesignation to attainment and takes action to 
redesignate the area.

DATES: Comments must be received on or before March 6, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2023-0058 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/dockets/commenting-epa-dockets.

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]. The EPA Region 5 office 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.

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

I. Background

    EPA has determined that ground-level ozone is detrimental to human 
health. On October 1, 2015, EPA promulgated a revised 8-hour ozone 
NAAQS of 0.070 parts per million (ppm). See 80 FR 65292 (October 26, 
2015). Under EPA's regulations at 40 CFR part 50, the 2015 ozone NAAQS 
is attained in an area when the 3-year average of the annual fourth 
highest daily maximum 8-hour average concentration is equal to or less 
than 0.070 ppm, when truncated after the thousandth decimal place, at 
all of the ozone monitoring sites in the area. See 40 CFR 50.19 and 
appendix U to 40 CFR part 50.
    Upon promulgation of a new or revised NAAQS, section 107(d)(1)(B) 
of the CAA requires EPA to designate as nonattainment any areas that 
are violating the NAAQS, based on the most recent three years of 
quality-assured ozone monitoring data. 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 January 
26, 2023, the Regional Administrator of EPA Region 5 signed a final 
rulemaking determining, based on 2018-2020 monitoring data, that the 
Detroit area had failed to attain by its Marginal attainment date of 
August 3, 2021, and reclassifying the area to Moderate.\1\
---------------------------------------------------------------------------

    \1\ EPA previously proposed to approve a January 3, 2022, 
request by EGLE to redesignate the Detroit area to attainment of the 
2015 ozone NAAQS based on 2019-2021 monitoring data showing 
attainment of the 2015 ozone NAAQS (87 FR 14210). EPA's proposed 
approval was published on March 14, 2022, and the comment period 
closed on April 27, 2022. In this proposed action, EPA is not taking 
further action to finalize the proposed redesignation. EPA will 
respond to comments received during the comment period for the 
proposed redesignation should EPA take final action on EGLE's 
January 3, 2022, request.
---------------------------------------------------------------------------

II. Exceptional Events Demonstration

    Congress has recognized that it may not be appropriate for EPA to 
use certain monitoring data collected by the ambient air quality 
monitoring network and maintained in EPA's Air Quality System (AQS) 
database in certain regulatory determinations. Thus, in 2005, Congress 
provided the statutory authority for the exclusion of data influenced 
by ``exceptional events'' meeting specific criteria by adding section 
319(b) to the CAA.\2\
---------------------------------------------------------------------------

    \2\ Under CAA section 319(b), an exceptional event means an 
event that (i) affects air quality; (ii) is not reasonably 
controllable or preventable; (iii) is an event caused by human 
activity that is unlikely to recur at a particular location or a 
natural event; and (iv) is determined by EPA under the process 
established in regulations promulgated by EPA in accordance with 
section 319(b)(2) to be an exceptional event. For the purposes of 
section 319(b), an exceptional event does not include (i) stagnation 
of air masses or meteorological inversions; (ii) a meteorological 
event involving high temperatures or lack of precipitation; or (iii) 
air pollution relating to source noncompliance.
---------------------------------------------------------------------------

    To implement this 2005 CAA amendment, on March 22, 2007, EPA 
promulgated the 2007 Exceptional Events Rule (72 FR 13560). The 2007 
Exceptional Events Rule created a regulatory process codified at 40 CFR 
parts 50 and 51 (Sec. Sec.  50.1, 50.14, and 51.930). These regulatory 
sections, which superseded EPA's previous guidance on handling data 
influenced by events, contain definitions, procedural requirements, 
requirements for air agency demonstrations, criteria for EPA's approval 
of the exclusion of

[[Page 7383]]

event-affected air quality data from the data set used for regulatory 
decisions, and requirements for air agencies to take appropriate and 
reasonable actions to protect public health from exceedances or 
violations of the NAAQS. On October 3, 2016, EPA promulgated a 
comprehensive revision to the 2007 Exceptional Events Rule (81 FR 
68216). The 2016 Exceptional Events Rule revision included the 
requirement that, if a state demonstrates that emissions from a 
wildfire smoke event caused a specific air pollution concentration in 
excess of the NAAQS at a particular air quality monitoring location and 
otherwise satisfies the requirements of 40 CFR 50.14, EPA must exclude 
that data from use in determinations of exceedances and violations.\3\
---------------------------------------------------------------------------

    \3\ 40 CFR 50.14(b)(4).
---------------------------------------------------------------------------

    The CAA provides for the exclusion of air quality monitoring data 
from design value calculations when there are NAAQS exceedances caused 
by events, such as wildfires, that meet the criteria for an exceptional 
event identified in EPA's Exceptional Events Rule at 40 CFR 50.1, 
50.14, and 51.930. For the purposes of this proposed action, on January 
26, 2023, EGLE submitted an exceptional events demonstration to show 
that ozone concentrations recorded at the Wayne County monitor at East 
7 Mile with Site ID 26-163-0019 on June 24 and 25, 2022, were 
influenced by wildfires. EPA concurred on this request on January 30, 
2023.
    EPA found that Michigan's demonstration met the Exceptional Events 
Rule criteria and determined that these wildfire events had regulatory 
significance for purposes of calculating the area's most recent design 
value to demonstrate the area is attaining the standard in order to 
make a clean data determination for the 2015 ozone NAAQS. As such, EPA 
proposes to take final regulatory action on the concurred dates, as 
detailed in the docket, as exceptional events to be removed from the 
data set used for regulatory purposes. For this proposed action, EPA 
will rely on the calculated values that exclude the event-influenced 
data for the purpose of demonstrating attainment of the 2015 ozone 
NAAQS. Further details on Michigan's analyses and EPA's concurrence can 
be found in the docket for this regulatory action.
    While EPA has concurred with Michigan's request to exclude event-
influenced air quality monitoring data from regulatory decisions, these 
regulatory actions require EPA to provide an opportunity for public 
comment on the claimed exceptional events and all supporting data prior 
to EPA taking final agency action. This proposed action provides the 
public with an opportunity to comment on the claimed exceptional 
events, all supporting documents and EPA's concurrence with Michigan's 
request.

III. Clean Data Determination

    Following enactment of the CAA Amendments of 1990, EPA discussed 
its interpretation of the requirements for implementing the NAAQS in 
the General Preamble for the Implementation of title I of the CAA 
Amendments of 1990 (General Preamble), 57 FR 13498, 13564 (April 16, 
1992). On November 29, 1995, EPA set forth what has become known as its 
``Clean Data Policy'' for the 1-hour ozone NAAQS (70 FR 71612). Under 
the Clean Data Policy, for a nonattainment area that can demonstrate 
attainment of the standard before implementing CAA nonattainment 
measures, EPA interprets the requirements of the CAA that are 
specifically designed to help an area achieve attainment, such as the 
requirements for such area to submit attainment demonstrations and 
associated RACM, RFP plans, contingency measures for failure to attain 
or make reasonable progress, and other planning SIPs related to 
attainment of the ozone NAAQS, to be suspended for as long as air 
quality continues to meet the standard. Such a determination of 
attainment under the Clean Data Policy is known informally as a clean 
data determination. On December 6, 2018, in the final rule updating 
implementing regulations for the 2015 ozone NAAQS, EPA codified this 
policy at 40 CFR 51.1318 (83 FR 62998).
    An area is attaining the 2015 ozone NAAQS if it meets the 2015 
ozone NAAQS based on three complete, consecutive calendar years of 
quality-assured air quality data for all monitoring sites in the area. 
To attain the 2015 ozone NAAQS, the 3-year average of the annual 
fourth-highest daily maximum 8-hour average ozone concentrations (ozone 
design values) at each monitor must not exceed 0.070 ppm. The air 
quality data must be collected and quality-assured in accordance with 
40 CFR part 58 and recorded in AQS. Ambient air quality monitoring data 
for the 3-year period must also meet data completeness requirements. An 
ozone design value is valid if daily maximum 8-hour average 
concentrations are available for at least 90% of the days within the 
ozone monitoring seasons,\4\ on average, for the 3-year period, with a 
minimum data completeness of 75% during the ozone monitoring season of 
any year during the 3-year period. See section 4 of appendix U to 40 
CFR part 50.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    EPA has reviewed the available ozone monitoring data from EGLE's 
monitoring sites in the Detroit area for the 2020-2022 period. These 
data have been quality assured, are recorded in the AQS, and were 
certified in advance of EPA's publication of this proposal. These data 
demonstrate that the Detroit area is attaining the 2015 ozone NAAQS. 
The annual fourth-highest 8-hour ozone concentrations and the 3-year 
average of these concentrations (monitoring site ozone design values) 
for all monitoring sites are summarized in Table 1.

   Table 1--Annual Fourth-Highest Daily Maximum 8-Hour Ozone Concentrations and 3-Year Average of the Fourth-
                     Highest Daily Maximum 8-Hour Ozone Concentrations for the Detroit Area
----------------------------------------------------------------------------------------------------------------
                                                  2020  4th high  2021  4th high  2022  4th high     2020-2022
             County                   Monitor          (ppm)           (ppm)           (ppm)      average  (ppm)
----------------------------------------------------------------------------------------------------------------
Macomb..........................     26-099-0009           0.074           0.068           0.066           0.069
                                     26-099-1003           0.070           0.067           0.068           0.068
Oakland.........................     26-125-0001           0.074           0.068           0.065           0.069
St. Clair.......................     26-147-0005           0.069           0.072           0.066           0.069
Washtenaw.......................     26-161-0008           0.072           0.066           0.067           0.068
                                     26-161-9991           0.067           0.063           0.066           0.065
Wayne...........................     26-163-0001           0.070           0.069           0.071           0.070

[[Page 7384]]

 
                                     26-163-0019           0.073           0.069           0.067           0.069
----------------------------------------------------------------------------------------------------------------

    The Detroit area's 3-year ozone design value for 2020-2022 is 0.070 
ppm,\5\ which meets the 2015 ozone NAAQS. Therefore, in this action, 
EPA proposes to find that the Detroit area is attaining the 2015 ozone 
NAAQS.
---------------------------------------------------------------------------

    \5\ The monitor ozone design value for the monitor with the 
highest 3-year averaged concentration.
---------------------------------------------------------------------------

    EPA will not take final action to determine that the Detroit area 
is attaining the NAAQS if the design value of a monitoring site in the 
area violates the NAAQS prior to final approval of the clean data 
determination.
    Should this action be finalized, the requirements for EGLE to 
submit attainment demonstrations and associated RACM, RFP plans, 
contingency measures for failure to attain or make reasonable progress, 
and other planning SIPs related to attainment of the 2015 ozone NAAQS 
for the proposed Detroit area, would be suspended for as long as the 
area continues to attain the 2015 ozone NAAQS. 40 CFR 51.1318. This 
action does not constitute a redesignation of the area to attainment of 
the 2015 ozone NAAQS under section 107(d)(3)(E) of the CAA, nor does it 
constitute approval of a maintenance plan for the area as required 
under section 175A of the CAA, nor does it find that the area has met 
all other requirements for redesignation. The Detroit area will remain 
designated nonattainment for the 2015 ozone NAAQS until such time as 
EPA determines that the area meets CAA requirements for redesignation 
to attainment and takes a separate action to redesignate the area.

IV. What action is EPA taking?

    EPA is proposing to approve a determination under the CAA that the 
Detroit area has attained the 2015 ozone NAAQS. This determination is 
based upon complete, quality-assured, and certified ambient air 
monitoring data for the 2020-2022 design period showing that the area 
achieved attainment of the 2015 ozone NAAQS. EPA is also proposing to 
take final agency action on an exceptional events request submitted by 
EGLE on January 26, 2023, and concurred on by EPA on January 30, 2023. 
As a result of these determinations, EPA is proposing to suspend the 
requirements for the area to submit attainment demonstrations and 
associated RACM, RFP plans, contingency measures for failure to attain 
or make reasonable progress, and other planning SIPs related to 
attainment of the 2015 ozone NAAQS, for as long as the area continues 
to attain the 2015 ozone NAAQS.

V. Statutory and Executive Order Reviews

    This action proposes to make a clean data determination for the 
Detroit area for the 2015 ozone NAAQS based on air quality data which 
would result in the suspension of certain Federal requirements and does 
not impose any additional requirements. 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: January 30, 2023.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2023-02284 Filed 2-2-23; 8:45 am]
BILLING CODE 6560-50-P