[Federal Register Volume 88, Number 111 (Friday, June 9, 2023)]
[Rules and Regulations]
[Pages 37766-37769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12304]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2023-0049; FRL-10920-02-R5]


Air Plan Approval; Michigan; Michigan Nonattainment New Source 
Review Certification for the 2015 Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving, as a 
revision to the Michigan State Implementation Plan (SIP), Michigan's 
certification that its SIP satisfies the nonattainment new source 
review (NNSR) requirements of the Clean Air Act (CAA) for the 2015 
ozone National Ambient Air Quality Standard (NAAQS).

DATES: This direct final rule will be effective August 8, 2023, unless 
EPA receives adverse comments by July 10, 2023. If adverse comments are 
received, EPA will publish a timely withdrawal of the direct final rule 
in the Federal Register informing the public that the rule will not 
take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2023-0049 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 https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Andrew Lee, Attainment Planning and 
Maintenance Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312)-353-7645, [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

    On October 26, 2015, EPA promulgated a revised 8-hour ozone NAAQS 
of 0.070 parts per million (ppm). See 80 FR 65292. Upon promulgation of 
a new or revised NAAQS, the CAA requires EPA to designate as 
nonattainment any area that is violating the NAAQS based on the three 
most recent years of ambient air quality data. This action relates to 
nonattainment areas in Michigan that were designated nonattainment for 
the 2015 8-hour ozone NAAQS on June 4, 2018.
    On December 6, 2018, EPA issued a final rule entitled, 
``Implementation of the 2015 National Ambient Air Quality Standards for 
Ozone: Nonattainment Area State Implementation Plan Requirements,'' 
which established the requirements and deadlines that state, tribal, 
and local air quality management agencies must meet as they develop 
implementation plans for areas where ozone concentrations exceed the 
2015 8-hour ozone NAAQS. Based on its initial nonattainment designation 
for the 2015 8-hour ozone standards, Michigan was required to make a 
SIP revision addressing NNSR program requirements. This requirement may 
be met by submitting a SIP revision consisting of a new or revised NNSR 
permit program, or an analysis demonstrating that the existing SIP-
approved NNSR permit program meets the applicable 2015 ozone 
requirements and a letter certifying the analysis.

II. Michigan's Submittal

    On January 24, 2023, Michigan submitted a SIP revision requesting 
that EPA approve Michigan's certification that its existing SIP-
approved NNSR regulations fully satisfy the NNSR requirements set forth 
in 40 CFR 51.165 for all areas not attaining the 2015 ozone NAAQS. 
Michigan has certified that specific sections of its NNSR rules in Part 
19, New Source Review for Major Sources Impacting Nonattainment Areas, 
continue to meet the NNSR requirements for ozone nonattainment areas 
under the 2015 ozone NAAQS. Table 1 below provides the sections of 
Michigan's NNSR rule corresponding to the relevant requirements at 40 
CFR 51.165. The Michigan rules were previously approved on May 12, 2021 
(86 FR 25954). Each requirement identified in Michigan's certification 
has not been revised since EPA last approved it. Table 1 lists the 
specific

[[Page 37767]]

provisions of Michigan's NNSR rules that address the required elements 
of the Federal NNSR rules:

                   Table 1--NNSR SIP Rules Comparison
------------------------------------------------------------------------
              Federal rule                        Michigan rule
------------------------------------------------------------------------
40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv)..  R 336.2901(u)(i)(A), R
                                          336.2901(u)(i)(A)(1), (2),
                                          (3), and (4).
40 CFR 51.165(a)(1)(iv)(A)(2)(i)-(vi)..  R 336.2901(u)(i)(B), R
                                          336.2901(u)(i)(B)(1), (2),
                                          (3), (4), (5), and (6).
40 CFR 51.165(a)(1)(iv)(A)(3)..........  R 336.2901(u)(i)(C).
40 CFR 51.165 (a)(1)(iv)(B)............  R 336.2901(u)(i)(C)(ii).
40 CFR 51.165(a)(1)(v)(B)..............  R 336.2901(t)(ii).
40 CFR 51.165 (a)(1)(v)(E).............  R 336.2901(t)(v).
40 CFR 51.165(a)(1)(v)(F)..............  R 336.2901(t)(vi).
40 CFR 51.165(a)(1)(x)(A)..............  R 336.2901(hh)(i) and R
                                          336.2901(hh)(i)(D).
40 CFR 51.165(a)(1)(x)(B)..............  R 336.2901(hh)(ii).
40 CFR 51.165(a)(1)(x)(C)..............  R 336.2901(hh)(iii).
40 CFR 51.165(a)(1)(x)(E)..............  R 336.2901(hh)(v).
40 CFR 51.165 (a)(1)(xxxvii)(C)(1).....  R 336.2901(ff).
40 CFR 51.165(a)(3)(ii)(C)(1)..........  R 336.2908(5)(c)(i), R
                                          336.2908(5)(c)(i)(A) and (B).
40 CFR 51.165(a)(3)(ii)(C)(2)..........  R 336.2908(5)(c)(ii), R
                                          336.2908(5)(c)(ii)(A) and (B).
40 CFR 51.165(a)(8)....................  R 336.2902(8).
40 CFR 51.165(a)(9)(ii)-(iv)...........  R 336.2908(6)(a)(i)-(v), and R
                                          336.2908(6)(b) and (c).
------------------------------------------------------------------------

III. Analysis of Nonattainment New Source Review Requirements

    NNSR is a preconstruction review permit program that applies to new 
major stationary sources or major modifications at existing sources 
within a nonattainment area and is required under CAA sections 
172(c)(5) and 173.
    As mentioned in Section I of this preamble, NNSR permit program 
requirements were adopted for the 2015 ozone NAAQS at 40 CFR 51.1314 as 
part of the 2015 SIP Requirements Rule. The minimum SIP requirements 
for NNSR permitting programs for the 2015 ozone NAAQS are contained in 
40 CFR 51.165. The SIP for each ozone nonattainment area must contain 
NNSR provisions that: (1) set major source thresholds for nitrogen 
oxides (NOX) and volatile organic compounds (VOC) pursuant to 40 CFR 
51.165(a)(1)(iv)(A)(1)(i) through (iv) and (a)(1)(iv)(A)(2); (2) 
classify physical changes as a major source if the change would 
constitute a major source by itself pursuant to 40 CFR 
51.165(a)(1)(iv)(A)(3); (3) consider any significant net emissions 
increase of NOX as a significant net emissions increase for ozone 
pursuant to 40 CFR 51.165(a)(1)(v)(E); (4) consider any increase of VOC 
emissions in Extreme ozone nonattainment areas as a significant net 
emissions increase and a major modification for ozone pursuant to 40 
CFR 51.165(a)(1)(v)(F); (5) set significant emissions rates for VOC and 
NOX as ozone precursors pursuant to 40 CFR 51.165(a)(1)(x)(A) through 
(C) and (E); (6) contain provisions for emissions reductions credits 
pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1) and (2); (7) provide that the 
requirements applicable to VOC also apply to NOX pursuant to 40 CFR 
51.165(a)(8); (8) set offset ratios for VOC and NOX pursuant to 40 CFR 
51.165(a)(9)(ii) through (iv); and (9) require public participation 
procedures compliant with 40 CFR 51.165(i).
    Michigan's SIP-approved NNSR program, established in Part 19, ``New 
Source Review for Major Sources Impacting Nonattainment Areas,'' of the 
state's Air Pollution and Control rules, applies to the construction 
and modification of stationary sources, including major stationary 
sources in nonattainment areas under its jurisdiction. Michigan's 
submitted SIP revision includes a compliance demonstration, consisting 
of a table listing each of the 2015 ozone NAAQS NNSR SIP requirements 
from 40 CFR 51.165 and a citation to the specific provision of the rule 
satisfying the requirement. The submittal also includes a certification 
by the state that the cited rules meet the Federal NNSR requirements 
for the applicable ozone nonattainment designation. EPA has reviewed 
the demonstration and cited program elements intended to meet the 
Federal NNSR requirements and is approving the state's submittal 
because the current SIP-approved NNSR program satisfies all the 2015 
ozone NAAQS SIP Requirements Rule NNSR program requirements applicable 
to the Michigan ozone nonattainment areas.

IV. What action is EPA taking?

    EPA is approving Michigan's January 24, 2023, SIP revision 
addressing the NNSR requirements of the 2015 ozone NAAQS. EPA has 
concluded that Michigan's submission fulfills the 40 CFR 51.1314 
revision requirement, meets the requirements of CAA sections 110 and 
172 and the minimum SIP requirements of 40 CFR 51.165. We are 
publishing this action without prior proposal because we view this as a 
noncontroversial amendment and anticipate no adverse comments. However, 
in the proposed rules section of this Federal Register publication, we 
are publishing a separate document that will serve as the proposal to 
approve the state plan if relevant adverse written comments are filed. 
This rule will be effective August 8, 2023 without further notice 
unless we receive relevant adverse written comments by July 10, 2023. 
If we receive such comments, we will withdraw this action before the 
effective date by publishing a subsequent document that will withdraw 
the final action. All public comments received will then be addressed 
in a subsequent final rule based on the proposed action. EPA will not 
institute a second comment period. Any parties interested in commenting 
on this action should do so at this time. Please note that if EPA 
receives adverse comment on an amendment, paragraph, or section of this 
rule and if that provision may be severed from the remainder of the 
rule, EPA may adopt as final those provisions of the rule that are not 
the subject of an adverse comment. If we do not receive any comments, 
this action will be effective August 8, 2023.

V. Statutory and Executive Order Reviews.

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of

[[Page 37768]]

the CAA. Accordingly, this action merely approves state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law. 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 14094 (88 FR 21879, April 11, 2023);
     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 subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     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.
    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).
    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    EGLE did not evaluate environmental justice considerations as part 
of its SIP submittal; the CAA and applicable implementing regulations 
neither prohibit nor require such an evaluation. EPA did not perform an 
EJ analysis and did not consider EJ in this action. Due to the nature 
of the action being taken here, this action is expected to have a 
neutral to positive impact on the air quality of the affected area. 
Consideration of EJ is not required as part of this action, and there 
is no information in the record inconsistent with the stated goal of 
E.O. 12898 of achieving environmental justice for people of color, low-
income populations, and Indigenous peoples.
    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).
    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 August 8, 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of this Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. 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, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: June 2, 2023.
Debra Shore,
Regional Administrator, Region 5.

    For the reasons stated in the preamble, title 40 CFR part 52 is 
amended 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 adding an 
entry for ``Ozone (8-hour, 2015) Nonattainment New Source Review 
Certification'' immediately following the entry for ``Determination of 
failure to attain the 2010 SO2 standard'' to read as 
follows:


Sec.  52.1170  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
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                                     Applicable
   Name of nonregulatory SIP        geographic or         State
           provision                nonattainment    submittal date       EPA approval date          Comments
                                        area
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Ozone (8-hour, 2015)             Statewide.........       1/24/2023  6/9/2023, [INSERT Federal
 Nonattainment New Source                                             Register CITATION].
 Review Certification.

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[FR Doc. 2023-12304 Filed 6-8-23; 8:45 am]
BILLING CODE 6560-50-P