[Federal Register Volume 88, Number 56 (Thursday, March 23, 2023)]
[Rules and Regulations]
[Pages 17376-17379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05820]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2022-0976; FRL-10788-03-R5]


Air Plan Approval; Michigan; Interim Final Determination To Stay 
and Defer Sanctions in the Detroit Sulfur Dioxide Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: In the Proposed Rules section of this Federal Register, EPA is 
proposing conditional approval of Michigan's State Implementation Plan 
(SIP), as revised on December 20, 2022, for attaining the 2010 1-hour 
primary sulfur dioxide (SO2) national ambient air quality 
standard (NAAQS). Based on that proposed conditional approval, EPA is 
making an interim final determination (IFD) by this action. Although 
this action is effective upon publication, EPA will take comment on 
this interim final determination.

DATES: This interim final determination is effective on March 23, 2023. 
However, comments will be accepted until April 24, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2022-0976 at https://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

[[Page 17377]]

https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Abigail Teener, 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) 353-7314, 
[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:

I. Background

    On March 19, 2021, EPA partially approved and partially disapproved 
Michigan's SO2 plan for the Detroit area as submitted in 
2016 (86 FR 14827). EPA approved the base-year emissions inventory and 
affirmed that the new source review (NSR) requirements for the area had 
previously been met on December 16, 2013 (78 FR 76064). EPA also 
approved the enforceable control measures for two facilities as SIP 
strengthening. EPA disapproved the attainment demonstration, as well as 
the requirements for meeting reasonable further progress (RFP) toward 
attainment of the NAAQS, reasonably available control measures and 
reasonably available control technology (RACM/RACT), and contingency 
measures. Additionally, EPA disapproved the plan's control measures for 
two facilities as not demonstrating attainment. EPA's March 19, 2021, 
rulemaking triggered the sanctions clock as outlined in section 179 of 
the Clean Air Act (CAA) and 40 CFR 52.31(d). The two-to-one new source 
offset sanction took effect on October 19, 2022 (18 months following 
the effective date of March 19, 2021 rulemaking that triggered the 
sanctions clock), and the highway funding sanction was scheduled to 
take effect on April 19, 2023 (6 months after the date of the offset 
sanctions), in the Detroit nonattainment area as the result of the 
March 19, 2021, partial disapproval.
    On October 12, 2022, EPA promulgated a Federal Implementation Plan 
(FIP) for the Detroit SO2 nonattainment area (87 FR 61514), 
which satisfied EPA's duty to promulgate a FIP for the area under CAA 
section 110(c) that resulted from the previous finding of failure to 
submit. However, it did not affect the sanctions clock started under 
CAA section 179 resulting from EPA's partial disapproval of the prior 
SIP, which would be permanently stopped only by meeting the conditions 
of EPA's regulations at 40 CFR 52.31(d)(5). On December 20, 2022, 
Michigan submitted a revised attainment plan for the Detroit 
SO2 nonattainment area mirroring EPA's FIP in order to 
remedy Michigan's 2016 plan deficiencies, as specified in EPA's March 
19, 2021 rulemaking. Michigan's December 20, 2022, plan depends, in 
part, on permits that have not yet been issued but will include 
SO2 limits and associated requirements for the U.S. Steel 
and Dearborn Industrial Generation (DIG) facilities that are no less 
stringent than those set forth in EPA's FIP for the Detroit 
nonattainment area.
    Under section 110(k)(4) of the CAA, EPA may conditionally approve a 
plan based on a commitment from the State to adopt specific enforceable 
measures within one year from the date of approval, accompanied by a 
schedule for adoption of those measures. EPA's October 28, 1992, 
memorandum, entitled ``State Implementation Plan (SIP) Actions 
Submitted in Response to Clean Air Act (Act) Deadlines,'' states that 
such commitments should include a formal request that EPA approve the 
commitment, be subject to public hearing pursuant of 40 CFR 51.102, and 
include a schedule for the adoption of the required measures. 
Therefore, Michigan included in its December 20, 2022, submittal, which 
was subject to public hearing, a request that EPA conditionally approve 
its revised plan for the Detroit area, conditional upon the issuance 
and submission for incorporation into the SIP of the NSR permits for 
the U.S. Steel and DIG facilities, as well as a commitment to submit 
the permits to EPA within one year of a conditional approval. On 
February 21, 2023, Michigan submitted a letter clarifying the schedule 
for the conditional approval, including Michigan's commitment to submit 
the necessary permits by April 30, 2024, and the schedule Michigan 
expects to follow to meet that commitment. Michigan's expected schedule 
includes ensuring all necessary permit applications are submitted by 
March 31, 2023, beginning the 240-day permit review process by April 1, 
2023, issuing permits by December 1, 2023, and submitting permits to 
EPA by December 31, 2023. Michigan's expected date of submittal 
provides some additional time to accommodate unexpected delays to 
ensure the State is able to meet its commitment to submit the permits 
by April 30, 2024, and EPA finds that Michigan's schedule is 
reasonable.
    In the Proposed Rules section of this Federal Register, EPA has 
proposed to conditionally approve Michigan's December 20, 2022, plan, 
pending the timely submittal of the specified permits by April 30, 
2024. Regardless, the limits and associated requirements needed to 
provide for attainment of the SO2 NAAQS in the Detroit area 
are federally enforceable via EPA's FIP, codified at 40 CFR 52.1189.

II. What action is EPA taking?

    Under 40 CFR 52.31(d)(2)(ii), if the State has submitted a revised 
plan to correct the deficiency, and EPA proposes to conditionally 
approve the plan and issues an IFD that the revised plan corrects the 
deficiency, application of the new source offset sanction shall be 
stayed and application of the highway sanction shall be deferred. In 
the Detroit area, the offset sanction was imposed on October 19, 2022, 
and the highway sanction, if not deferred, would be imposed on April 
19, 2022.
    Based on the proposed conditional approval of Michigan's 
SO2 plan for the Detroit nonattainment area set forth in 
this Federal Register, EPA believes that it is more likely than not 
that Michigan has met the requirement to submit a plan that provides 
for attainment of the 1-hour SO2 NAAQS for the Detroit 
SO2 nonattainment area under sections 110, 172, 191, and 192 
of the CAA. Therefore, EPA is making this IFD finding that the State 
has corrected the deficiency of failing to submit a plan that provides 
for attainment of the SO2 NAAQS in the Detroit nonattainment 
area, contingent on the adoption and timely submittal of permits 
containing SO2 limits and associated requirements for the 
U.S. Steel and DIG units in the area that are no less stringent than 
those limits and requirements set forth in EPA's FIP for the Detroit 
area, codified at 40 CFR 52.1189. These limits and requirements will 
remain federally enforceable via EPA's FIP, codified at 40 CFR 52.1189, 
unless EPA fully approves Michigan's plan and incorporates the 
appropriate permits into Michigan's SIP and takes further action to 
rescind the FIP.
    EPA also believes that this approach is consistent with the 
requirements of section 553 of the Administrative Procedure Act (APA) 
(5 U.S.C. 553(b)(3)).\1\ Generally, under the APA, agency rulemaking 
affecting the rights of individuals must comply with certain minimum 
procedural requirements, including publishing a notice of proposed 
rulemaking in the Federal

[[Page 17378]]

Register and providing an opportunity for the public to submit written 
comments on the proposal, before the rulemaking can have final effect. 
EPA will not be providing an opportunity for public comment before 
those deferrals or stays are effective. Consequently, EPA's approach 
may appear to conflict with the requirements of the APA. However, EPA 
will provide an opportunity to comment on the proposed conditional 
approval that was the basis for the interim final determination and 
will provide an opportunity, after the fact, for the public to comment 
on the interim final determination. Thus, an opportunity for comment 
will be provided before any sanctions clock is permanently stopped or 
any already applied sanctions are permanently lifted. In the context of 
the conditional approval, and with respect to the interim final rule, 
the public would have an opportunity to comment on the appropriateness 
of EPA's interim determination that the State had corrected the 
deficiency and on whether the State should remain subject to sanctions, 
even though the deferral or stay is already effective.
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    \1\ See also further analyses described in EPA's August 4, 1994 
rulemaking on the Selection of Sequence of Mandatory Sanctions(59 FR 
39832, 39849-53), available at https://archives.federalregister.gov/issue_slice/1994/8/4/39826-39866.pdf#page=7.
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    The basis for allowing such an interim final action stems from 
section 553(b)(B) of the APA which provides that the notice and 
opportunity for comment requirements do not apply when the Agency finds 
that those procedures are ``impracticable, unnecessary, or contrary to 
the public interest.'' In the case of sanctions, EPA believes it would 
be both impracticable and contrary to the public interest to have to 
propose and provide an opportunity to comment before any relief is 
provided from the effect of sanctions. EPA believes it would be unfair 
to the State and its citizens, and thus not in the public interest, for 
sanctions to remain in effect following the proposed conditional 
approval, since EPA has completed a thorough evaluation of the State's 
SIP revision and publicly stated its belief that the submittal is 
approvable, conditional upon the submittal of the appropriate permits, 
and that the State has corrected the deficiency, but due to the State 
permitting procedural requirements the State has not yet been able to 
adopt the necessary permits. While EPA cannot incorporate permits 
containing emission limits and associated requirements for the U.S. 
Steel and DIG limits into Michigan's SIP at this time, these limits and 
associated requirements were previously established in EPA's FIP and 
will continue to remain federally enforceable as part of the regulatory 
text of EPA's FIP, codified at 40 CFR 52.1189. EPA believes sanctions 
coming into effect following the proposed conditional approval would 
unnecessarily risk potential dislocation in government programs and the 
marketplace. EPA also believes that the risk of an inappropriate 
deferral or stay would be comparatively small, given the limited scope 
and duration deferrals and stays would have and given the rule's 
mechanism for making sanctions effective upon reversal of its initial 
determination that the State had corrected the deficiency. 
Consequently, EPA believes that the ``good cause'' exception under the 
APA allows the Agency to dispense with notice and comment procedures 
before deferrals and stays of sanctions become effective.
    In accordance with 5 U.S.C. 553(d) of the APA, EPA finds there is 
good cause for this action to become effective immediately upon 
publication. The immediate effective date for this action is authorized 
under both 5 U.S.C. 553(d)(1).
    Section 553(d)(1) of the APA provides that final rules shall not 
become effective until 30 days after publication in the Federal 
Register ``except . . . a substantive rule which grants or recognizes 
an exemption or relieves a restriction.'' The purpose of this provision 
is to ``give affected parties a reasonable time to adjust their 
behavior before the final rule takes effect.'' Omnipoint Corp. v. Fed. 
Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United 
States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting 
legislative history). However, when the agency grants or recognizes an 
exemption or relieves a restriction, affected parties do not need a 
reasonable time to adjust because the effect is not adverse. Because 
this rule relieves a restriction, EPA finds good cause under 5 U.S.C. 
553(d)(1) for this action to become effective on the date of 
publication of this action.
    Under 40 CFR 52.31(d)(2)(ii), if the State does not meet its 
commitment and the plan is disapproved, the new source offset sanction 
shall reapply and the highway sanction shall apply on the date of 
proposed or final disapproval.

III. Statutory and Executive Order Reviews

    This action stays and defers Federal sanctions and imposes no 
additional requirements.
    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).
    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).
    This action 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.).
    This action 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).
    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, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
    This rule does not have tribal implications, as specified in 
Executive Order 13175 because it will not have substantial direct 
effects on tribal governments. Thus, Executive Order 13175 does not 
apply to this rule.
    This action is not subject to Executive Order 13045, ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not an economically significant 
regulatory action.
    This action is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a 
significant regulatory action under Executive Order 12866.
    This rulemaking does not involve technical standards. Therefore, 
the EPA is not considering the use of any voluntary consensus 
standards.
    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low-income populations, and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
    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. However, section 808 provides 
that any rule for which the issuing agency for good cause finds that 
notice and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest, shall take effect at such time as the 
agency promulgating the rule determines. 5 U.S.C. 808(2). EPA has made 
such a good cause finding, including the reasons thereof, and 
established an

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effective date of March 23, 2023. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).
    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 May 22, 2023. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements, Sulfur oxides.

    Dated: March 16, 2023.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2023-05820 Filed 3-22-23; 8:45 am]
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