[Federal Register Volume 85, Number 182 (Friday, September 18, 2020)]
[Proposed Rules]
[Pages 58315-58319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20612]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2016-0321; FRL-10014-55-Region 5]


Air Plan Approval; Michigan; Partial Approval and Partial 
Disapproval of the Detroit SO2 Nonattainment Area Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
partially approve and partially disapprove a revision to the Michigan 
State Implementation Plan (SIP) for attaining the 2010 1-hour primary 
sulfur dioxide (SO2) national ambient air quality standard 
(NAAQS or ``standard'') for the Detroit SO2 nonattainment 
area (NAA). This SIP revision (hereinafter called the ``Detroit 
SO2 plan'' or ``plan'') includes Michigan's attainment 
demonstration and other elements required under the Clean Air Act 
(CAA). EPA is proposing to approve the base year emissions inventory, 
and to affirm that the nonattainment new source review (NNSR) 
requirements for the area have been met. EPA is proposing to disapprove 
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. Finally, EPA is 
proposing to disapprove the plan's control measures for two facilities 
as not demonstrating attainment, and is proposing to approve the 
enforceable control measures for two facilities as SIP strengthening.

DATES: Comments must be received on or before October 19, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2016-0321 at http://www.regulations.gov, or via email to 
Aburano.Douglas@epa.gov. 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 http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sarah Arra, 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) 886-9401, Arra.Sarah@epa.gov. 
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. Why was Michigan required to submit a plan for the Detroit SO2 
nonattainment area?

    On June 22, 2010, EPA promulgated a new 1-hour primary 
SO2 NAAQS of 75 parts per billion (ppb). This standard is 
met at an ambient air quality monitoring site when the 3-year average 
of the annual 99th percentile of daily maximum 1-hour average 
concentrations does not exceed 75 ppb, as determined in accordance with 
appendix T of 40 CFR part 50.\1\ On August 5, 2013, EPA designated a 
first set of 29 areas of the country as nonattainment for the 2010 
SO2 NAAQS, including the Detroit SO2 NAA within 
Michigan.\2\ These area designations became effective on October 4, 
2013. Section 191(a) of the CAA directs states to submit SIPs for areas 
designated as nonattainment for the SO2 NAAQS (hereinafter 
called ``plans'' or ``nonattainment plans'') to EPA within 18 months of 
the effective date of the designation, i.e., by no later than April 4, 
2015 in this case. Under CAA section 192(a), these plans are required 
to have measures that will provide for attainment of the NAAQS as 
expeditiously as practicable, but no later than five years from the 
effective date of designation, i.e., October 4, 2018, for the Detroit 
SO2 NAA.
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    \1\ 75 FR 35520, codified at 40 CFR 50.17(a)-(b).
    \2\ 78 FR 47191, codified at 40 CFR part 81, subpart C.
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    In response to the requirement for SO2 nonattainment 
plan submittals, Michigan submitted the Detroit SO2 plan on 
May 31, 2016 and submitted associated final enforceable measures on 
June 30, 2016.
    For a number of NAAs, including the Detroit area, EPA published an 
action on March 18, 2016, effective April 18, 2016, finding that 
Michigan and other pertinent states had failed to submit the required 
SO2 nonattainment plan by the submittal deadline. See 81 FR 
14736. This finding initiated a deadline under CAA section 179(a) for 
the potential imposition of new source review offset and highway 
funding sanctions. Additionally, under CAA section 110(c), the finding 
triggered a requirement that the EPA promulgate a Federal 
Implementation Plan (FIP) within two years of the finding unless, by 
that time (a) the state had made the necessary complete submittal and 
(b) EPA had approved the submittal as meeting applicable requirements. 
Michigan's May 31, 2016 submittal was deemed administratively complete 
six months after its submission to EPA, which stopped the sanctions 
clock per EPA's sanctions regulations at 40 CFR 52.31 but did not stop 
the FIP clock.
    For reasons described in the following sections, EPA is proposing 
to disapprove portions of the Detroit attainment plan. Finalization of 
this action will start a new sanctions clock which can be stopped only 
if the conditions of EPA's regulations at 40 CFR 52.31 are met. Only a 
full SIP approval or EPA's promulgation of a FIP can stop FIP clocks, 
so this action does not have any effect on the FIP clock that started 
April 18, 2016.
    The remainder of this preamble describes the requirements that 
nonattainment plans must meet in order to obtain EPA approval, provides 
a review of the Detroit SO2 plan with respect to these 
requirements, and describes EPA's proposed action on the plan.

II. Requirements for Nonattainment Plans

    Nonattainment plans for SO2 must meet the applicable 
requirements of the CAA, specifically CAA sections 110,

[[Page 58316]]

172, 191, and 192. EPA's regulations governing nonattainment SIP 
submissions are set forth at 40 CFR part 51, with specific procedural 
requirements and control strategy requirements codified at subparts F 
and G, respectively. Soon after Congress enacted the 1990 Amendments to 
the CAA, EPA issued comprehensive guidance on SIP revisions in the 
``General Preamble for the Implementation of Title I of the Clean Air 
Act Amendments of 1990'' (``General Preamble'').\3\ Among other things, 
the General Preamble addressed SO2 SIP submissions and 
fundamental principles for SIP control strategies.\4\ On April 23, 
2014, EPA issued recommended guidance for meeting the statutory 
requirements in SO2 SIP submissions, in a document entitled, 
``Guidance for 1-Hour SO2 Nonattainment Area SIP 
Submissions'' (``2014 SO2 Guidance''). In the 2014 
SO2 Guidance, EPA described the statutory requirements of 
CAA section 172(c) for a complete nonattainment plan, including: An 
accurate emissions inventory of current emissions for all sources of 
SO2 within the NAA; an attainment demonstration; a 
demonstration of RFP; implementation of RACM (including RACT); new 
source review; enforceable emission limitations and control measures; 
and adequate contingency measures for the affected area.
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    \3\ 57 FR 13498 (April 16, 1992).
    \4\ Id. at 13548-13549, 13567-13568.
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    For EPA to fully approve a SIP revision as meeting the requirements 
of CAA sections 110, 172, 191, and 192, and EPA's regulations at 40 CFR 
part 51, the plan for an affected area must demonstrate to EPA's 
satisfaction that each of the aforementioned requirements has been met. 
Under CAA section 110(l), EPA may not approve a plan that would 
interfere with any applicable requirement concerning NAAQS attainment 
and RFP, or any other applicable requirement. Under CAA section 193, no 
requirement in effect (or required to be adopted by an order, 
settlement, agreement, or plan in effect before November 15, 1990) in 
any area that is nonattainment for any air pollutant may be modified in 
any manner unless it ensures equivalent or greater emission reductions 
of such air pollutant.
    Sections 172(c)(1) and 172(c)(6) of the CAA direct states with 
areas designated as nonattainment to demonstrate that the submitted 
plan and the emissions limitations and control measures in it provide 
for attainment of the NAAQS. 40 CFR part 51, subpart G further 
delineates the control strategy requirements that plans must meet, and 
EPA has long required that all SIPs and control strategies reflect four 
fundamental principles of quantification, enforceability, 
replicability, and accountability.\5\ SO2 nonattainment 
plans must consist of two components: (1) Emission limits and other 
control measures that ensure implementation of permanent, enforceable, 
and necessary emission controls, and (2) a modeling analysis that meets 
the requirements of 40 CFR part 51, appendix W and demonstrates that 
these emission limits and control measures provide for timely 
attainment of the primary SO2 NAAQS as expeditiously as 
practicable, but no later than the attainment date for the affected 
area. In cases where the necessary emission limits have not previously 
been made a part of the state's SIP or have not otherwise become 
federally enforceable, the plan needs to include the necessary 
enforceable limits in an adopted form suitable for incorporation into 
the SIP in order for the plan to be approved by EPA. In all cases, the 
emission limits and control measures must be accompanied by appropriate 
methods and conditions to determine compliance with the respective 
emission limits and control measures and must be quantifiable (i.e., a 
specific amount of emission reduction can be ascribed to the measures), 
fully enforceable (i.e., specifying clear, unambiguous and measurable 
requirements for which compliance can be practicably determined), 
replicable (i.e., the procedures for determining compliance are 
sufficiently specific and objective so that two independent entities 
applying the procedures would obtain the same result), and accountable 
(i.e., source specific limits must be permanent and must reflect the 
assumptions used in the SIP demonstrations).
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    \5\ Id. at 13567-13568.
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    EPA's 2014 SO2 Guidance recommends that the emission 
limits be expressed as short-term average limits not to exceed the 
averaging time for the applicable NAAQS that the limit is intended to 
help maintain (e.g., addressing emissions averaged over one or three 
hours), but it also describes the option to utilize emission limits 
with longer averaging times of up to 30 days as long as the state meets 
various suggested criteria.\6\ The 2014 SO2 Guidance 
recommends that, should states and sources utilize longer averaging 
times (such as 30 days), the longer-term average limit should be set at 
an adjusted level that reflects a stringency comparable to the 1-hour 
average limit at the critical emission value shown to provide for 
attainment. Additional discussion of EPA's rationale for approving 
longer term average limits in selected cases has been provided in 
several notices of proposed rulemaking, for example for the Pekin, 
Illinois area (see 82 FR 46434, Oct. 5, 2017), for the Steubenville, 
Ohio-West Virginia area (see 84 FR 29456, June 24, 2019), and for the 
Central New Hampshire area (see 82 FR 45242, Sep. 28, 2017)).
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    \6\ 2014 SO2 Guidance, 22-39.
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    Preferred air quality models for use in regulatory applications are 
described in appendix A of EPA's ``Guideline on Air Quality Models'' 
(40 CFR part 51, appendix W (``appendix W'')).\7\ In general, 
nonattainment SIP submissions must demonstrate the adequacy of the 
selected control strategy using the applicable air quality model 
designated in appendix W.\8\ However, where an air quality model 
specified in appendix W is inappropriate for the particular 
application, the model may be modified or another model substituted, if 
EPA approves the modification or substitution.\9\ In 2005, EPA 
promulgated the American Meteorological Society/Environmental 
Protection Agency Regulatory Model (AERMOD) as the Agency's preferred 
near-field dispersion model for a wide range of regulatory applications 
addressing stationary sources (e.g., in estimating SO2 
concentrations) in all types of terrain based on an extensive 
developmental and performance evaluation. Supplemental guidance on 
modeling for purposes of demonstrating attainment of the SO2 
standard is provided in appendix A of the 2014 SO2 Guidance. 
Appendix A provides extensive guidance on the modeling domain, the 
source inputs, assorted types of meteorological data, and background 
concentrations. Consistency with the recommendations in the 2014 
SO2 Guidance is generally necessary for the attainment 
demonstration to offer adequately reliable assurance that the plan 
provides for attainment.
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    \7\ EPA published revisions to appendix W on January 17, 2017, 
82 FR 5182.
    \8\ 40 CFR 51.112(a)(1).
    \9\ 40 CFR 51.112(a)(2); appendix W, section 3.2.
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    As stated previously, attainment demonstrations for the 2010 1-hour 
primary SO2 NAAQS must demonstrate future attainment and 
maintenance of the NAAQS in the entire area designated as nonattainment 
(i.e., not just at the violating monitor) by using air quality 
dispersion modeling (see appendix W) to show that the mix of sources 
and enforceable control

[[Page 58317]]

measures and emission rates in an identified area will not lead to a 
violation of the SO2 NAAQS. For the short-term (i.e., 1-
hour) standard, EPA believes that dispersion modeling, using allowable 
emissions and addressing stationary sources in the affected area (and 
in some cases those sources located outside the NAA that may affect 
attainment in the area) is technically appropriate. This approach is 
also efficient and effective in demonstrating attainment in NAAs 
because it takes into consideration combinations of meteorological and 
source operating conditions that may contribute to peak ground-level 
concentrations of SO2.
    The meteorological data used in the analysis should generally be 
processed with the most recent version of AERMET, which is the 
meteorological data preprocessor for AERMOD. Estimated concentrations 
should include ambient background concentrations, follow the form of 
the standard, and be calculated as described in EPA's August 23, 2010 
clarification memorandum.\10\
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    \10\ ``Applicability of Appendix W Modeling Guidance for the 1-
hr SO2 National Ambient Air Quality Standard'' (August 
23, 2010).
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III. Review of Modeled Attainment Demonstration

    The majority of Michigan's submittal is a robust modeling 
demonstration that includes an assessment of the air quality impacts 
Michigan expected to result from emissions limitations governing the 
following sources: U.S. Steel Ecorse, U.S. Steel Zug Island, EES Coke, 
DTE Energy (DTE) River Rouge, DTE Trenton Channel, Carmeuse Lime, DTE 
Monroe, Severstal Steel, Dearborn Industrial Generation (DIG), and 
Marathon Refinery. From the base case modeling scenario, Michigan 
determined that Carmeuse Lime was causing an isolated violation in the 
model, and that U.S. Steel, DTE River Rouge, and DTE Trenton Channel 
were all contributing to overlapping violations in locations separate 
from the Carmeuse Lime violation. No other modeled sources were found 
to be significantly contributing to the modeled violations. EPA found 
the modeling to generally follow the modeling guidance and adhere to 
the requirements in appendix W.
    Michigan ran a variety of control scenarios to determine a 
reduction strategy for the area and submitted emission limitations for 
Carmeuse Lime, DTE Trenton Channel, DTE River Rouge, and U.S. Steel. 
Michigan submitted revised construction permits for Charmeuse Lime, DTE 
Trenton Channel, and DTE River Rouge, each of which had been agreed to 
by the source.

A. U.S. Steel Emission Limits

    Michigan was unsuccessful, however, in its efforts to implement 
more stringent SO2 emission limits through a construction 
permit with U.S. Steel. Ultimately, Michigan imposed the emission 
limits it had concluded were necessary at U.S. Steel to bring the 
Detroit area into attainment by passing Michigan Administrative Code 
(MAC) 336.1430 (``Rule 430''). Michigan submitted Rule 430 to EPA as an 
enforceable limitation element of its SO2 plan.
    Subsequently, U.S. Steel challenged the legality of Rule 430 in the 
Michigan Court of Claims, which invalidated Rule 430 on October 4, 
2017. United States Steel Corp. v. Dept. of Environmental Quality, No. 
16-000202-MZ, 2017 WL 5974195 (Mich. Ct. Cl. Oct. 4, 2017).
    To date, Michigan has not submitted a substitute enforceable 
emission limitation for the U.S. Steel facility. Because the State's 
attainment demonstration relies on such a limitation, EPA must 
disapprove the Detroit SO2 plan.

B. SIP Strengthening Additional Emission Limits

    As noted above, Michigan submitted revised permits with more 
stringent emission limitations for three other facilities. Although EPA 
is not able to approve any of these limitations as part of the state's 
Detroit SO2 plan, EPA is proposing to approve two of these 
three permits as SIP strengthening, which is appropriate for limits 
that improve air quality but do not meet a specific CAA requirement.
    For Carmeuse Lime, on March 18, 2016, the State issued Permit to 
Install 193-14A, which requires the construction of and venting of 
emissions through a new stack. The permit also establishes a more 
stringent, permanent, and enforceable SO2 limit. The State's 
modeling indicates that the violation caused by Carmeuse is resolved by 
this modification, which is well within EPA's regulatory definition of 
``good engineering practice (GEP)'' per 40 CFR 51.100(ii)(1). Because 
this enforceable emissions limitation will lessen ground-level impacts, 
EPA is proposing to approve it as SIP strengthening.
    Similarly, EPA is proposing to approve as SIP strengthening the DTE 
Trenton Channel permit (Permit to Install 125-11C).\11\ EPA modeling 
demonstrates that attainment at violating receptors can be achieved 
when the emission limits in the DTE Trenton Channel Permit are analyzed 
together with those contained in a recently issued permit for the DTE 
River Rouge facility (Permit to Install 40-08I).
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    \11\ Issued April 29, 2016.
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    With regard to the DTE River Rouge permit, Michigan submitted an 
earlier version of that permit as part of its Detroit SO2 
Plan.\12\ After EPA found an error in the long-term averaging 
calculation for this permit, DTE corrected the error and, as noted 
above, was issued a new permit. The 2020 permit has not been submitted 
as part of the Detroit SO2 Plan, however, and is not before 
EPA for consideration.
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    \12\ Permit to Install 40-08H, issued on May 3, 2016.
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    Therefore, for the reasons explained above, EPA is proposing to 
disapprove the attainment demonstration in the Detroit SO2 
Plan pursuant to 172(c) and 192(a), specifically those elements of the 
demonstration that rely on the invalidated Rule 430 and the superseded 
2016 DTE River Rouge permit. EPA is proposing to approve the Carmeuse 
Lime and DTE Trenton Channel construction permits as SIP strengthening.

IV. Review of Other Plan Requirements

A. Emissions Inventory

    The emissions inventory and source emission rate data for an area 
serve as the foundation for air quality modeling and other analyses 
that enable states to estimate the degree to which different sources 
within a NAA contribute to violations within the affected area and 
assess the expected improvement in air quality within the NAA due to 
the adoption and implementation of control measures. The state must 
develop and submit to EPA a comprehensive, accurate, and current 
inventory of actual emissions from all sources of SO2 
emissions in each NAA, as well as any sources located outside the NAA 
that may affect attainment in the area.\13\
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    \13\ CAA section 172(c)(3).
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    The base year inventory establishes a baseline that is used to 
evaluate emission reductions achieved by the control strategy and to 
assess RFP requirements. Michigan used 2012 as the base year for 
emissions inventory preparation. At the time of preparation of the 
plan, 2012 reflected the most recent emissions data available to the 
state through its annual emissions reporting requirements during 
periods with air quality violations. The emissions inventory includes 
all sources over a 100 tons per year (tpy) of SO2 emission 
within the NAA, as well as a large source, DTE Monroe, outside the 
nonattainment area. Table 1 summarizes

[[Page 58318]]

2012 base year SO2 emissions inventory data for the NAA, 
categorized by emission source type (rounded to the nearest whole 
number).

  Table 1--Summary of Base Year (2012) SO2 Emissions Inventory for the
                             Detroit SO2 NAA
------------------------------------------------------------------------
                                                             Emissions
                         Source                                (tpy)
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River Rouge.............................................           8,203
Trenton Channel.........................................          22,426
Monroe..................................................          49,151
Carmeuse Lime...........................................             700
Severstal Steel.........................................             677
DIG.....................................................             598
Marathon................................................             137
U.S. Steel..............................................           2,874
EES Coke................................................           1,901
                                                         ---------------
    Total...............................................          86,666
------------------------------------------------------------------------

    EPA has evaluated Michigan's 2012 base year inventory and finds 
this inventory and the methodologies used for their development to be 
consistent with EPA guidance. As a result, EPA is proposing to 
determine that the Detroit SO2 plan meets the requirements 
of CAA section 172(c)(3) and (4) for the Detroit SO2 NAA.

B. RACM and RACT and Enforceable Emission Limitations and Control 
Measures

    CAA section 172(c)(1) states that nonattainment plans should 
``provide for the implementation of all reasonably available control 
measures as expeditiously as practicable (including such reductions in 
emissions from existing sources in the area as may be obtained through 
the adoption, at a minimum, of reasonably available control technology) 
and shall provide for attainment of the national primary ambient air 
quality standards.'' CAA section 172(c)(6) requires plans to ``include 
enforceable emissions limitations, and such other control measures [. . 
.] as may be necessary or appropriate to provide for attainment of [the 
NAAQS].'' Because the Detroit plan is missing enforceable measures for 
some major sources of SO2 and is therefore not able to 
demonstrate attainment, the area does not demonstrate RACM/RACT or meet 
the requirement for necessary emissions limitations or control 
measures. EPA is therefore proposing that the State has not satisfied 
the requirements in CAA sections 172(c)(1) and (6) to adopt and submit 
all RACM/RACT and emissions limitations or control measures as needed 
to attain the standard as expeditiously as practicable.

C. New Source Review

    Michigan has a fully approved NNSR Program. The program is set 
forth in Part 19 of the Michigan SIP (MAC R 336.2901 through R 
336.2908). This program was approved by EPA into the SIP on December 
16, 2013 (78 FR 76064) and addresses nonattainment permitting 
requirements for SO2 and other pollutants. Therefore, EPA is 
proposing to affirm that the new source review requirements for the 
area have been met.

D. Reasonable Further Progress

    EPA's policy, that RFP for SO2 may be satisfied by 
``adherence to an ambitious compliance schedule,'' is based on the fact 
that, ``for SO2 there is usually a single `step' between 
pre-control nonattainment and post-control attainment.'' \14\ In this 
instance, however, Michigan has not demonstrated that implementation of 
the control measures required under the plan is sufficient to provide 
for attainment of the NAAQS in the Detroit SO2 NAA. In the 
absence of a demonstration that the required controls will lead to 
attainment, a compliance schedule to implement these controls is not 
sufficient to provide for RFP. Therefore, we propose to conclude that 
the State has not satisfied the requirement in section 172(c)(2) to 
provide for RFP toward attainment in the Detroit SO2 NAA.
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    \14\ 2014 SO2 Guidance, 40.
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E. Contingency Measures

    In the Detroit SO2 plan, Michigan explained its 
rationale for concluding that the plan meets the requirement for 
contingency measures. Specifically, Michigan relied on the 2014 
SO2 Guidance, which notes the special circumstances that 
apply to SO2 and explains on that basis why the contingency 
requirement in CAA section 172(c)(9) is met for SO2 by 
having a comprehensive program to identify sources of violations of the 
SO2 NAAQS and to undertake an aggressive follow-up for 
compliance and enforcement of applicable emission limitations. Michigan 
stated that it has such an enforcement program pursuant to section 5526 
of part 55, Air Pollution Control, of the Natural Resources and 
Environmental Protection Act, 1994 PA 451, as amended, Michigan 
Compiled Laws 324.5526. Michigan also stated that its enforcement and 
compliance authority is furthered by the State's Title V program, which 
includes a compliance monitoring program, periodic inspections, review 
of company monitoring records, reporting, and issuance of violation 
notices for all violations shown from inspections or data. In addition, 
Michigan stated that it responds promptly to citizen complaints, 
reports all high priority violations to EPA, and puts all inspection 
reports and violation notices on Michigan's website. Michigan concluded 
that the plan satisfies contingency measure requirements under CAA 
section 172(c)(9).
    Although we agree that the Michigan SIP establishes a comprehensive 
enforcement program, allowing for the identification of sources of 
SO2 NAAQS violations and aggressive compliance and 
enforcement follow-up, EPA's policy that a comprehensive enforcement 
program can satisfy the contingency measures requirement is premised on 
the idea that full compliance with the controls required in the plan 
will assure attainment. In this case, as explained above, Michigan's 
plan lacks necessary enforceable measures at major sources of 
SO2 and therefore cannot demonstrate attainment with the 
NAAQS. Therefore, we propose that the State has not satisfied the 
requirement in section 172(c)(9) to provide for contingency measures to 
be undertaken if the area fails to make RFP or to attain NAAQS by the 
attainment date.

F. Conformity

    Generally, as set forth in section 176(c) of the CAA, conformity 
requires that actions by Federal agencies do not cause new air quality 
violations, worsen existing violations, or delay timely attainment of 
the relevant NAAQS. General conformity applies to Federal actions, 
other than certain highway and transportation projects, if the action 
takes place in a NAA or maintenance area (i.e., an area which submitted 
a maintenance plan that meets the requirements of section 175A of the 
CAA and has been redesignated to attainment) for ozone, particulate 
matter, nitrogen dioxide, carbon monoxide, lead, or SO2. 
EPA's General Conformity Rule establishes the criteria and procedures 
for determining if a Federal action conforms to the SIP.\15\ With 
respect to the 2010 SO2 NAAQS, Federal agencies are expected 
to continue to estimate emissions for conformity analyses in the same 
manner as they estimated emissions for conformity analyses under the 
previous NAAQS for SO2. EPA's General Conformity Rule 
includes the basic requirement that a Federal agency's general 
conformity analysis be based on the latest and most accurate emission

[[Page 58319]]

estimation techniques available.\16\ When updated and improved emission 
estimation techniques become available, EPA expects the Federal agency 
to use these techniques.
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    \15\ 40 CFR 93.150 to 93.165.
    \16\ 40 CFR 93.159(b).
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    Transportation conformity determinations are not required in 
SO2 nonattainment and maintenance areas. EPA concluded in 
its 1993 transportation conformity rule that highway and transit 
vehicles are not significant sources of SO2. Therefore, 
transportation plans, transportation improvement programs, and projects 
are presumed to conform to applicable implementation plans for 
SO2.\17\
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    \17\ 58 FR 3768, 3776 (January 11, 1993).
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V. What action is EPA taking?

    EPA is proposing to approve the base year inventory and to affirm 
that the new source review requirements for the area have been met. EPA 
is also proposing to approve the DTE Trenton Channel and Carmeuse Lime 
permits as SIP strengthening. EPA is proposing to disapprove the 
attainment demonstration, as well as the requirement for meeting RFP 
toward attainment of the NAAQS, RACM/RACT, contingency measures, the 
invalidated Rule 430 related to U.S. Steel, and the superseded 2016 
permit related to DTE River Rouge. Finalizing the proposed disapproval 
will start new sanctions clocks for this area under CAA section 179(a)-
(b).

VI. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference two permits, Permit to Install 193-14A issued March 18, 2016 
and Permit to Install 125-11C issued April 29, 2016. EPA has made, and 
will continue to make, these documents generally available through 
www.regulations.gov and at EPA Region 5 Office (please contact the 
person identified in the For Further Information Contact section of 
this preamble for more information).

VII. 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 it is not a significant regulatory 
action 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).

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: September 14, 2020.
Kurt Thiede,
Regional Administrator, Region 5.
[FR Doc. 2020-20612 Filed 9-17-20; 8:45 am]
BILLING CODE 6560-50-P


