Rule2023-05820
Air Plan Approval; Michigan; Interim Final Determination To Stay and Defer Sanctions in the Detroit Sulfur Dioxide Nonattainment Area
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 23, 2023
Effective
March 23, 2023
Issuing agencies
Environmental Protection Agency
Abstract
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 (SO<INF>2</INF>) 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.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 56 (Thursday, March 23, 2023)</title>
</head>
<body><pre>
[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-05820]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 (SO<INF>2</INF>) 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or via email to
<a href="/cdn-cgi/l/email-protection#c6a7b4b4a7e8b5a7b4a7ae86a3b6a7e8a1a9b0"><span class="__cf_email__" data-cfemail="c7a6b5b5a6e9b4a6b5a6af87a2b7a6e9a0a8b1">[email protected]</span></a>. For comments submitted at <a href="http://Regulations.gov">Regulations.gov</a>, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. 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]]
<a href="https://www2.epa.gov/dockets/commenting-epa-dockets">https://www2.epa.gov/dockets/commenting-epa-dockets</a>.
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,
<a href="/cdn-cgi/l/email-protection#ee9a8b8b808b9cc08f8c87898f8782ae8b9e8fc0898198"><span class="__cf_email__" data-cfemail="0e7a6b6b606b7c206f6c67696f67624e6b7e6f20696178">[email protected]</span></a>. 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 SO<INF>2</INF> 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 SO<INF>2</INF> 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
SO<INF>2</INF> 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
SO<INF>2</INF> 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 SO<INF>2</INF> 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
SO<INF>2</INF> 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 SO<INF>2</INF> NAAQS for the Detroit
SO<INF>2</INF> 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 SO<INF>2</INF> NAAQS in the Detroit nonattainment
area, contingent on the adoption and timely submittal of permits
containing SO<INF>2</INF> 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.
---------------------------------------------------------------------------
\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 <a href="https://archives.federalregister.gov/issue_slice/1994/8/4/39826-39866.pdf#page=7">https://archives.federalregister.gov/issue_slice/1994/8/4/39826-39866.pdf#page=7</a>.
---------------------------------------------------------------------------
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
[[Page 17379]]
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]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on March 23, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.