[Federal Register Volume 83, Number 106 (Friday, June 1, 2018)]
[Rules and Regulations]
[Pages 25375-25378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11566]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2016-0058; FRL-9978-61--Region 5]


Air Plan Approval; Michigan; Regional Haze Progress Report

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the 
regional haze progress report under the Clean Air Act (CAA) as a 
revision to the Michigan state implementation plan (SIP). Michigan has 
satisfied the progress report requirements of the Regional Haze Rule. 
Michigan has also provided a determination of the adequacy of its 
regional haze plan with the progress report.

DATES: This final rule is effective on July 2, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2016-0058. All documents in the docket are listed on 
the www.regulations.gov website. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
through www.regulations.gov or at the Environmental Protection Agency,

[[Page 25376]]

Region 5, Air and Radiation Division, 77 West Jackson Boulevard, 
Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding Federal holidays. We recommend 
that you telephone Gilberto Alvarez, Environmental Scientist, at (312) 
886-6143 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Gilberto Alvarez, Environmental 
Scientist, Attainment Planning and Maintenance Section, Air Programs 
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6143, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION 
section is arranged as follows:

I. Background
II. What is EPA's response to the comments?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I Background

    States are required to submit a progress report every five years 
that evaluates progress towards the Reasonable Progress Goals (RPGs) 
for each mandatory Class I Federal area within the State and in each 
mandatory Class I Federal area outside the State which may be affected 
by emissions from within the State. See 40 CFR 51.308(g). States are 
also required to submit, at the same time as the progress report, a 
determination of the adequacy of their existing regional haze SIP. See 
40 CFR 51.308(h). The first progress report is due five years after the 
submittal of the initial regional haze SIP.
    Michigan submitted its regional haze plan on November 5, 2010. EPA 
partially approved Michigan's regional haze plan into its SIP on 
December 3, 2012 (77 FR 71533).
    As part of this action, EPA found that the State's submittal 
appropriately addressed the best available retrofit technology (BART) 
requirements for some sources but failed to satisfy BART for two 
sources, namely St. Marys Cement (SMC) and Escanaba Paper Company. EPA 
promulgated a Federal Implementation Plan (FIP) that included nitrogen 
oxide emission (NOx) limits for these two sources and sulfur dioxide 
emission limits for SMC to satisfy these requirements on December 3, 
2012 (77 FR 71533).
    In order to satisfy the requirements for BART for certain taconite 
ore processing facilities in Minnesota and Michigan, EPA promulgated a 
taconite FIP on February 6, 2013 (78 FR 8706), and revised the taconite 
FIP on April 9, 2015 (81 FR 21672). In Michigan, the taconite facility 
impacted by this FIP is the Tilden Mining Company.
    Michigan submitted its five-year progress report on January 12, 
2016. The State submitted its determination of adequacy with the 
progress report.
    The emission reductions from several Federal programs are 
contributing to visibility improvement in Michigan. In its regional 
haze plan, Michigan considered the emission reductions from the Tier 2 
Gasoline, Heavy-duty Highway Diesel, Non-road Diesel, and a variety of 
Maximum Achievable Control Technology programs. Michigan also relied, 
in part, on the Clean Air Interstate Rule (CAIR) to meet certain 
regional haze requirements. EPA issued a limited disapproval of 
Michigan's regional haze SIP based on its reliance on CAIR and issued a 
FIP on June 11, 2012 replacing reliance on CAIR with reliance on the 
Cross State Air Pollution Rule (CSAPR) (77 FR 33642).
    EPA published a direct final rule (DFR) on October 18, 2017 (82 FR 
48435), approving the Michigan regional haze progress report as a 
revision to the Michigan SIP, along with a proposed rule (82 FR 48473), 
that provided a 30-day public comment period.
    The DFR states that if EPA received adverse comments, EPA would 
publish a timely withdrawal of the DFR in the Federal Register 
informing the public that the rule will not take effect. EPA received 
adverse comments during the comment period, and the October 18, 2017 
DFR approving the Michigan regional haze progress report was withdrawn 
on December 8, 2017 (82 FR 57836). The adverse comments received are 
addressed below.
    EPA evaluated the Michigan submittal assessing the state's progress 
in implementing its regional haze plan during the first half of the 
first implementation period, as well as the statutory and regulatory 
background for Michigan's regional haze plan. The DFR also provided a 
description of the regional haze requirements addressed in the Michigan 
progress report.

II. What is EPA's response to the comments?

    EPA received four comments on the DFR (82 FR 48435). In the first 
comment, New Jersey expressed concern over sources in Michigan 
impacting Class I areas in the northeast. The second and third comments 
were anonymous and dealt with Federal Implementation Plans (FIPs) and 
regional trading programs, respectively. A fourth comment was not 
relevant to the rulemaking. We will address the comments here.
    Comment #1--EPA received a comment from the New Jersey Department 
of Environmental Protection (NJDEP) stating that EPA cannot approve the 
Michigan regional haze 5-year progress report because it is unclear how 
the State has addressed the request from the Mid-Atlantic Northeast 
Visibility Union (MANE-VU) states to reduce emissions from several 
electric generating units in Michigan. NJDEP noted that two of the 
facilities in Michigan identified by MANE-VU--Trenton Channel (Unit 9A) 
and Saint Clair (Unit 7)--have not reduced sulfur dioxide emissions and 
thus remain large uncontrolled sources of sulfur dioxide that adversely 
impact visibility in the MANE-VU region.
    EPA's Response--Michigan is a member of the Midwest Regional 
Planning Organization (Midwest RPO), a collaborative effort of state 
governments and federal agencies to coordinate activities associated 
with the management of regional haze, visibility, and other air quality 
issues in the Midwest. During the first planning period of the regional 
haze program, the Midwest RPO and other regional planning organizations 
facilitated consultations between states to help in the determination 
of appropriate control strategies for regional haze. The adequacy of 
Michigan's consultation with other states and its responses to other 
states' requests for specific emissions reductions were reviewed in 
EPA's assessment of its regional haze SIP submitted in 2010. EPA 
approved Michigan's decision to not require source-specific controls at 
Trenton Channel (Unit 9A) and Saint Clair (Unit 7) at that time. Given 
this, NJDEP's comments regarding Michigan's response to the request 
from MANE-VU fall outside the scope of this rulemaking.
    We do note, however, that the two sources specifically mentioned in 
NJDEP's comment, Trenton Channel Unit 9A and Saint Clair Unit 7, owned 
by DTE Energy, are tentatively scheduled to be shut down \1\ in 2023.
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    \1\ According to testimony by DTE before the Michigan Public 
Service Commission, DTE ``tentatively plans'' to retire Trenton 
Channel Unit 9 and St Clair Unit 7. ``Qualifications and Direct 
Testimony of Franklin D. Warren; DTE Electric Company's Application 
Proposed Notice of Hearing, Direct Testimony and Exhibits before the 
Michigan Public Service Commission'' (April 17, 2017). The company 
has subsequently indicated that the coal fired power plant units 
will be replaced with a natural gas facility.

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[[Page 25377]]

    EPA concludes that Michigan has adequately addressed the provisions 
under 40 CFR 51.308(h).
    Comment #2--EPA received an anonymous comment that argued that EPA 
cannot approve the Michigan regional haze 5-year progress report 
because Michigan relies on FIPs which cannot be enforced by the public.
    EPA's Response--We do not agree with the comment that measures 
contained in FIPs are not federally enforceable. Emission standards or 
limitations in a FIP are potentially subject to enforcement through 
action by citizens in the district courts of the United States. 42 
U.S.C. 7604.
    Comment #3--EPA received an anonymous comment that argued that EPA 
cannot approve the Michigan regional haze 5-year progress report 
because EPA should not be allowed to use regional trading programs to 
achieve BART reductions.
    EPA's Response--The regulations governing progress reports do not 
include a requirement for states (or EPA) to ensure that all applicable 
regional haze requirements for the first planning period have been met 
by the existing plan. As such, this comment raises issues outside the 
scope of this rulemaking. We do note, however, that EPA's determination 
that states may rely on CSAPR, a regional trading program, to meet the 
BART requirements has been upheld by the Court of Appeals for the 
District of Columbia Circuit. Utility Air Regulatory Group v. EPA, 885 
F.3d 714 (D.C. Cir. 2018).
    In summary, EPA disagrees that the points raised by the commenters 
prevent approval of the progress report. EPA finds that Michigan's 
progress report satisfies 40 CFR 51.308.

III. What action is EPA taking?

    EPA is approving the Michigan regional haze progress report under 
the CAA as a revision to the Michigan SIP. EPA finds that Michigan has 
satisfied the progress report requirements of the Regional Haze Rule. 
EPA also finds that Michigan has met the requirements for a 
determination of the adequacy of its regional haze plan with its 
negative declaration submitted with the progress report.

IV. 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 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 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. 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 July 31, 2018. 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. 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, Sulfur 
oxides, Volatile organic compounds.

    Dated: May 16, 2018.
Cathy Stepp,
Regional Administrator, Region 5.

    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 
the entry ``Regional Haze Progress Report'' to follow the entry titled 
``Regional Haze Plan'' to read as follows:


Sec.  52.1170  Identification of plan.

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    (e) * * *

[[Page 25378]]



                      EPA--Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
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   Name of nonregulatory SIP     Applicable geographic       State
           provision             or nonattainment area  submittal date  EPA approval date         Comments
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                                                  * * * * * * *
Regional Haze Progress Report.  Statewide.............       1/12/2016  6/1/2018, [insert  .....................
                                                                         Federal Register
                                                                         citation].
 
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[FR Doc. 2018-11566 Filed 5-31-18; 8:45 am]
 BILLING CODE 6560-50-P


