Rule2022-10671
Air Plan Approval; Michigan; Partial Approval and Partial Disapproval for Infrastructure SIP Requirements for the 2015 Ozone NAAQS; Correction
Primary source
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Published
May 19, 2022
Effective
May 19, 2022
Issuing agencies
Environmental Protection Agency
Abstract
This action corrects an omission of timely comment and response in the September 28, 2021, Environmental Protection Agency (EPA) partial approval/partial disapproval of elements of a State Implementation Plan (SIP) submission from Michigan to address the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2015 ozone National Ambient Air Quality Standards (NAAQS). Accordingly, this action amends the effective date of the final approval to reflect EPA's current response to the previously omitted comment.
Full Text
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<title>Federal Register, Volume 87 Issue 97 (Thursday, May 19, 2022)</title>
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[Federal Register Volume 87, Number 97 (Thursday, May 19, 2022)]
[Rules and Regulations]
[Pages 30420-30423]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-10671]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2019-0215; FRL-8999-03-R5]
Air Plan Approval; Michigan; Partial Approval and Partial
Disapproval for Infrastructure SIP Requirements for the 2015 Ozone
NAAQS; Correction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; correction.
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SUMMARY: This action corrects an omission of timely comment and
response in the September 28, 2021, Environmental Protection Agency
(EPA) partial approval/partial disapproval of elements of a State
Implementation Plan (SIP) submission from Michigan to address the
infrastructure requirements of section 110 of the Clean Air Act (CAA)
for the 2015 ozone National Ambient Air Quality Standards (NAAQS).
Accordingly, this action amends the effective date of the final
approval to reflect EPA's current response to the previously omitted
comment.
DATES: This final rule is effective on May 19, 2022.
[[Page 30421]]
FOR FURTHER INFORMATION CONTACT: Olivia Davidson, Environmental
Scientist, Attainment Planning and Maintenance Section, Air Programs
Branch (AR18J), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-0266,
<a href="/cdn-cgi/l/email-protection#543035223d30273b3a7a3b383d223d35143124357a333b22"><span class="__cf_email__" data-cfemail="771316011e1304181959181b1e011e163712071659101801">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On July 2, 2021 (86 FR 35247), EPA proposed
to approve most elements and disapprove an element of a SIP submission
from the Michigan Department of Environment, Great Lakes, and Energy
(EGLE) to address the required infrastructure elements of sections
110(a)(1) and (2), as applicable, for the 2015 ozone NAAQS. EPA
provided an explanation of the CAA requirements, a detailed analysis of
the submission, and EPA's reasons for proposing approval, in the notice
of proposed rulemaking (NPRM) and will not be restated here. The public
comment period for this proposed rule ended on August 2, 2021. In the
final rule published in the Federal Register on September 28, 2021 (86
FR 53550), EPA mistakenly omitted comments submitted by Sierra Club in
our response to comments. EPA received the comment letter on August 2,
2021 shortly before the end of the comment period. This comment letter
submitted by Sierra Club is summarized below along with EPA's
responses.
Comment: Sierra Club commented that EPA should examine whether
Michigan has met the requirement of CAA sections 110(a)(2)(A) and
110(a)(2)(E)(i), 42 U.S.C. 7410(a)(2)(A) and 7410(a)(2)(E)(i), in light
of a 2017 Michigan Court of Claims opinion, United States Steel Corp.
v. Dept. of Environmental Quality, No. 16-000202-MZ, 2017 WL 5974195
(Mich. Ct. Cl. Oct. 4, 2017), that invalidated Michigan Administrative
Code (MAC) 336.1430 (``Rule 430''). The commenter noted that Michigan
promulgated Rule 430 in an effort to bring the Detroit area into
attainment with the 2010 1-hour primary sulfur dioxide (SO<INF>2</INF>)
NAAQS, by placing SO<INF>2</INF> emission limits on a single facility.
The commenter further noted that the Court invalidated Rule 430 because
the limits applied to a single facility, thus failing the ``general
applicability'' requirement of Michigan's Administrative Procedures
Act, MCL 24.201 et seq. The implication of this comment is that
Michigan lacks legal authority to regulate sources as necessary to
implement the 2015 Ozone NAAQS, as required by CAA sections
110(a)(2)(A) and 110(a)(2)(E)(i).
Response: EPA disagrees with the commenter's concern that the
Michigan Court of Claims decision in United States Steel Corp. v. Dept.
of Environmental Quality, indicates that Michigan lacks legal authority
to regulate sources as required by CAA sections 110(a)(2)(A) and
110(a)(2)(E)(i). As an initial matter, EPA notes that the state court
decision at issue pertained to implementation of the 2010 1-hour
primary SO<INF>2</INF> NAAQS, not the 2015 Ozone NAAQS. For most
purposes, EPA normally evaluates infrastructure SIP submissions for
purposes of the specific NAAQS that is at issue. In this instance,
however, the implications of the state court decision could potentially
affect the state's ability to implement control measures with respect
to other NAAQS as well.
In this light, EPA has evaluated whether the Michigan Court of
Claims decision in question precludes the state from regulating
specific sources as needed for purposes of meeting nonattainment plan
requirements to result in attainment and maintenance of the NAAQS.
Based on this review, EPA concludes that the court only decided that
the state had improperly sought to impose emissions controls on the
sources at issue through a rule that did not meet state law
requirements for a ``rule of general applicability'' in violation of
relevant state administrative procedures act requirements. By naming
the specific affected source by name, rather than drafting the
requirements in a form that would apply to all similar sources in the
state, the court reasoned that the state law could not pass muster as a
rule of general applicability.
Instead, the court reasoned that the objective the state sought to
achieve ``sounds more in the nature of that which is ordinarily only
allowed after a contested case hearing or in the permit process.''
Moreover, the court noted that it was ``not unmindful of the facts that
led to the promulgation of Rule 430 or situation that DEQ sought to
address.'' Although the court expressly declined to advise how the
state could properly impose emission limits on the source at issue via
other means, elsewhere in the decision the court noted that the state
and other sources ``agreed to revise pertinent DEQ permits.''
EPA interprets these statements by the court to indicate that the
state does have authority under Michigan law to impose necessary
emission limitations on sources, as required to meet CAA requirements,
via other legal mechanisms such as permits. EPA notes that in order to
meet CAA SIP requirements, such as nonattainment plan requirements, the
state would need to submit the emission limitations and other related
permit terms (e.g., monitoring, reporting, and record keeping
requirements) to EPA for approval into the federally enforceable SIP
for Michigan.
In addition, to the extent that the state prefers to proceed via
generally applicable state regulations rather than permits, EPA expects
that Michigan will draft future rules to avoid the concerns raised by
the court which resulted in invalid SO<INF>2</INF> limits and make
necessary efforts to implement the 2015 Ozone NAAQS via other means
consistent with state law and meeting CAA requirements for SIP
provisions. Although the commenters expressed concern that the decision
of the court in United States Steel Corp. v. Dept. of Environmental
Quality indicated that the state lacks requisite authority to implement
its SIP consistent with CAA requirements, EPA does not interpret the
decision so broadly.
Additionally, EPA also disagrees with the commenter that Michigan's
SIP does not include ``enforceable emission limitations and other
control measures . . . as may be necessary or appropriate to meet the
applicable requirements'' CAA section 110(a)(2)(A) with respect to the
2015 ozone NAAQS more broadly. As stated in the July 2, 2021 proposed
rule (86 FR 35247), under Part 55 of the Natural Resources Protection
Act, (PA 451) promulgated in 1994, Michigan Compiled Laws (MCL)
Sections 324.5503 and 324.5512 authorize the EGLE director to regulate
the discharge of air pollutants, to create rules and to establish
standards regarding air quality and emissions. Specifically, MCL
Section 324.5503 states ``The department may . . . Promulgate rules to
establish standards for ambient air quality and for emissions . . .
Issue permits . . . subject to enforceable emission limitations and
standards and other conditions reasonably necessary to assure
compliance with all applicable requirements of this part, rules
promulgated under this part, and the clean air act.'' and MCL Section
324.5512 states ``(1) . . . department shall promulgate rules for
purposes of doing all of the following: (a) Controlling or prohibiting
air pollution. (b) Complying with the clean air act . . .''
Michigan also imposes emission limits for ozone precursors in MAC
Rules 336.1101 through 336.2908. Specifically, MAC Rules 336.1601
through 336.1661 apply to existing sources of volatile organic
compounds (VOC), Rules 336.1701 through 336.1710 apply to new sources
of VOCs, and Rules 336.1801 through 1834 apply to oxides of nitrogen
(NO<INF>X</INF>) from stationary sources. Methods of control
[[Page 30422]]
and compliance are contained within these rules and incorporate EPA's
New Source Performance Review standards and NO<INF>X</INF> budget
trading program. Further, sources in Michigan that install equipment
that will emit ozone precursors are subject to permit-to-install
regulations under MAC Rules 336.1201 through 336.1209 and include
consideration of VOCs and NO<INF>X</INF>. Prevention of Significant
Deterioration (PSD) program regulations (MAC Rules 336.2801 through
Rule 336.2823) require any new major or modified source to undergo PSD
review.\1\ EPA believes the emission limits for ozone and its
precursors contained in these rules, in conjunction with the
authorization to promulgate rules to assure compliance with the CAA in
MCL Sections 324.5503 and 324.5512, satisfy the requirements of CAA
section 110(a)(2)(A) with respect to infrastructure SIP requirements
for purposes of the 2015 ozone NAAQS.
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\1\ Effective February 16, 2017 (82 FR 5182), EPA updated the
modeling appendix at 40 CFR part 51, appendix W. EPA proposed
approval of Michigan Part 9 rules on March 24, 2021 (86 FR 15837),
incorporating the CFR update. The finalization of the rule update
will dictate finalization of this element.
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Lastly, EPA reiterates that Michigan has provided necessary
assurances that it has ``adequate . . . authority under State . . . law
to carry out the implementation plan . . . and is not prohibited by any
Provision of Federal or State law, from carrying out such
implementation plan.'' As EPA noted in the July 2, 2021, proposed rule
(86 FR 35247), EGLE stated in the SIP submission that it has the legal
authority to carry out the Michigan SIP under Act 451 and the Executive
Reorganization Order 2011-1. In addition, EGLE indicated that MCL
324.5503 provides it with authority to enforce the Michigan SIP.
Specifically, MCL 324.5503(f) gives EGLE the power to enforce permits,
air quality fee requirements, and the requirements to obtain a permit,
while 324.5503(g) gives EGLE the authority to institute proceedings to
compel compliance. EGLE also provided a delegation letter in the
submission from the Governor to the EGLE director that delegates
authority to EGLE to ``. . . make any submittal, request, or
application under the federal CAA, including the ability to carry out
SIP requirements.'' This letter is included in the docket of this
ruling. Therefore, EPA believes that Michigan has met the
infrastructure SIP requirements of section 110(a)(2)(A) and
110(a)(2)(E)(i) with respect to the 2015 Ozone NAAQS.
This action amends the regulatory text to correct the effective
date of our final approval to reflect our response to these additional
comments, in addition to correcting the CFR citation to reflect that
EGLE's submission meets the requirements of Section 110(a)(2)(E)(i),
which was detailed in the July 2, 2021, proposed approval (86 FR
35247), but mistakenly omitted in the CFR table.
Section 553 of the Administrative Procedure Act, 5 U.S.C.
553(b)(B), provides that, when an agency for good cause finds that
notice and public procedure are impracticable, unnecessary or contrary
to the public interest, the agency may issue a rule without providing
notice and an opportunity for public comment. We have determined that
there is good cause for making this rule final without prior proposal
and opportunity for comment because we are merely correcting incorrect
element approval citations and incorrect effective date citations in
the related previous actions to address mistakenly omitted comments.
Statutory and Executive Order Reviews
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). This action does not impose an information collection burden
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Because the agency has made a ``good cause'' finding that this action
is not subject to notice-and-comment requirements under the
Administrative Procedures Act or any other statute as indicated in the
SUPPLEMENTARY INFORMATION section above, it is not subject to the
regulatory flexibility provisions of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded
Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). This action 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 governments,
as specified by E.O. 13132 (64 FR 43255, August 10, 1999). 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 E.O.
13175 (65 FR 67249, November 9, 2000). This action is not subject to
E.O. 13045 (62 FR 19885, April 23, 1997), because it is not
economically significant. This action is also not subject to E.O.
13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
technical correction action does not involve technical standards; thus
the requirements of section 12(d) of the National Technology Transfer
and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The
action also does not involve special consideration of environmental
justice related issues as required by E.O. 12898 (59 FR 7629, February
16, 1994).
This action is subject to the Congressional Review Act (CRA), and
EPA will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. Section 808 allows the
issuing agency to make a rule effective sooner than otherwise provided
by the CRA if the agency makes a good cause finding that notice and
public procedure is impracticable, unnecessary or contrary to the
public interest. This determination must be supported by a brief
statement. 5 U.S.C. 808(2). As stated previously, EPA had made such a
good cause finding, including the reasons therefore, and established an
effective date of May 19, 2022. This correction to 40 CFR part 52 for
Michigan is not a ``major rule'' as defined by 5 U.S.C. 804(2).
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: May 12, 2022.
Debra Shore,
Regional Administrator, Region 5.
For the reasons stated in the preamble, EPA amends 40 CFR part 52
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 revising
the entry for ``Section 110(a)(2) infrastructure requirements for the
2015 ozone NAAQS'' to read as follows:
[[Page 30423]]
Sec. 52.1170 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
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State
Name of nonregulatory SIP Applicable geographic or submittal EPA approval date Comments
provision nonattainment area date
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* * * * * * *
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Infrastructure
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Section 110(a)(2) Statewide................ 3/8/2019 5/19/2022, [INSERT Approved CAA
infrastructure requirements Federal Register elements:
for the 2015 ozone NAAQS. CITATION]. 110(a)(2)(A), (B),
(C), (D)(i)(II)
Prong 3, D(ii),
(E)(i), (F), (G),
(H), (J), (K), (L),
and (M). Disapproved
CAA element
110(a)(2)(D)(i)(II)
Prong 4. No action
on CAA element
110(a)(2)(D)(i)(I)
and
110(1)(2)(E)(ii).
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[FR Doc. 2022-10671 Filed 5-18-22; 8:45 am]
BILLING CODE 6560-50-P
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