[Federal Register Volume 88, Number 97 (Friday, May 19, 2023)]
[Rules and Regulations]
[Pages 32584-32594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10562]



[[Page 32583]]

Vol. 88

Friday,

No. 97

May 19, 2023

Part IV





Environmental Protection Agency





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40 CFR Parts 52 and 81





Air Plan Approval; Michigan; Clean Data Determination for the Detroit 
Area for the 2015 Ozone Standard and Redesignation of the Detroit, MI 
Area to Attainment of the 2015 Ozone Standards; Final Rules

  Federal Register / Vol. 88, No. 97 / Friday, May 19, 2023 / Rules and 
Regulations  

[[Page 32584]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2023-0058; FRL-10634-02-R5]


Air Plan Approval; Michigan; Clean Data Determination for the 
Detroit Area for the 2015 Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is determining under 
the Clean Air Act (CAA) that the Detroit, Michigan nonattainment area 
(hereafter also referred to, respectively, as the ``Detroit area'' or 
``area'') has attained the 2015 ozone National Ambient Air Quality 
Standards (NAAQS or standard). This determination is based upon 
complete, quality-assured, and certified ambient air monitoring data 
for the 2020-2022 design period showing that the area achieved 
attainment of the 2015 ozone NAAQS, based on the exclusion of certain 
exceedances of the 2015 ozone NAAQS that were due to exceptional 
events. EPA is taking final agency action on an exceptional events 
request submitted by the Michigan Department of Environment, Great 
Lakes, and Energy (EGLE) on January 26, 2023. As a result of the clean 
data determination, based on exclusion of event-influenced data, EPA is 
suspending the requirements for the area to submit attainment 
demonstrations and associated Reasonably Available Control Measures 
(RACM), Reasonable Further Progress (RFP) plans, contingency measures 
for failure to attain or make reasonable progress, and other planning 
SIPs related to attainment of the 2015 ozone NAAQS, for as long as the 
area continues to attain the 2015 ozone NAAQS. This action does not 
constitute a redesignation of the area to attainment of the 2015 ozone 
NAAQS.

DATES: This final rule is effective on May 19, 2023.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2023-0058. 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, 
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 and facility 
closures due to COVID-19. We recommend that you telephone Eric Svingen, 
Environmental Engineer, at (312) 353-4489 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Eric Svingen, Attainment Planning and 
Maintenance Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 353-4489, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

I. Background

    EPA has determined that ground-level ozone is detrimental to human 
health. On October 1, 2015, EPA promulgated a revised 8-hour ozone 
NAAQS of 0.070 parts per million (ppm). See 80 FR 65292 (October 26, 
2015). Under EPA's regulations at 40 CFR part 50, the 2015 ozone NAAQS 
is attained in an area when the 3-year average of the annual fourth 
highest daily maximum 8-hour average concentration is equal to or less 
than 0.070 ppm, when truncated after the thousandth decimal place, at 
all of the ozone monitoring sites in the area. See 40 CFR 50.19 and 
appendix U to 40 CFR part 50.
    Upon promulgation of a new or revised NAAQS, section 107(d)(1)(B) 
of the CAA requires EPA to designate as nonattainment any areas that 
are violating the NAAQS, based on the most recent three years of 
quality assured ozone monitoring data. On August 3, 2018, EPA 
designated the Detroit area, consisting of Livingston, Macomb, Monroe, 
Oakland, St. Clair, Washtenaw, and Wayne Counties, as a Marginal 
nonattainment area for the 2015 ozone NAAQS (83 FR 25776). On February 
1, 2023, EPA determined based on 2018-2020 monitoring data that the 
Detroit area had failed to attain by its Marginal attainment date of 
August 3, 2021, and reclassified the area to Moderate (88 FR 6633).\1\
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    \1\ EPA previously proposed to approve a January 3, 2022, 
request by EGLE to redesignate the Detroit area to attainment of the 
2015 ozone NAAQS based on 2019-2021 monitoring data showing 
attainment of the 2015 ozone NAAQS (87 FR 14210). EPA's proposed 
approval was published on March 14, 2022, and the comment period 
closed on April 27, 2022. In this final action, EPA is not taking 
further action to finalize the proposed redesignation. EPA is 
responding to comments received during the comment period for the 
proposed redesignation on EPA's separate final action on EGLE's 
January 3, 2022, request.
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    On February 3, 2023, EPA proposed to determine that the Detroit 
area attained the 2015 ozone NAAQS, based upon complete, quality-
assured, and certified ambient air monitoring data for the 2020-2022 
design period (88 FR 7382). Such a determination, based upon EPA's 
Clean Data Policy, is known informally as a clean data determination.
    EPA's proposed clean data determination relied upon EPA's 
concurrence on an exceptional events demonstration submitted by EGLE on 
January 26, 2023, which requested exclusion of ozone concentrations 
recorded at the Wayne County monitor at East 7 Mile with Site ID 26-
163-0019 on June 24 and 25, 2022. EGLE posted the demonstration for 
public comment on December 19, 2022, after substantial engagement with 
EPA staff who provided guidance on analytical methods and data that is 
used to support exceptional events demonstrations under EPA's 
exceptional events rule. EGLE's January 26, 2023, submittal was 
substantially similar to the version posted for State public comment on 
December 19, 2022, allowing EPA to expeditiously review the comments 
EGLE received on the demonstration, and to concur on EGLE's 
demonstration on January 30, 2023.
    In the February 3, 2023, proposed clean data determination, EPA 
proposed to take final agency action on the exceptional events 
concurrence, which removed the event-influenced data from the design 
value, and opened an opportunity for public comment on EPA's 
concurrence.

II. Response to Comments

    Upon publication of the February 3, 2023, proposed clean data 
determination, EPA opened a 31-day comment period, ending March 6, 
2023. During the comment period EPA received 32 comments. One comment 
recommended that EPA finalize the proposed actions, and the remaining 
comments were adverse or raised issues that are not relevant to EPA's 
proposed actions. The most detailed set of adverse comments was 
submitted by the Great Lakes Environmental Law Center (GLELC) together 
with Sierra Club, and several other comments referenced the GLELC 
comment or raise similar issues. Summaries of the adverse comments

[[Page 32585]]

and EPA's responses are provided below.

A. Environmental Justice Considerations

    Comment: Several commenters raised concerns regarding asthma 
disparities in Detroit and other respiratory diseases affecting 
residents of the area. In these comments, commenters referenced asthma 
rates in Detroit that are higher than the State average, as well as 
relatively high asthma hospitalization rates in specific Wayne County 
zip codes, which are near the East 7 Mile monitor. GLELC referenced 
statistics indicating that asthma rates for Detroit adults increased 
over the time period from 2016 to 2021. In her comment letter, U.S. 
Representative Rashida Tlaib referenced a report identifying several 
disparities in asthma rates, including statistics that Black residents 
in Detroit were more than three times more likely to be hospitalized 
than white Detroit residents. Several commenters also referenced 
longstanding environmental justice concerns affecting the Detroit area, 
especially regarding poverty rates and vulnerable populations. Several 
commenters noted that EPA's mission is to protect human health and the 
environment, and questioned whether EPA's action is contrary to that 
mission.
    Response: EPA is committed to the meaningful involvement and fair 
treatment of vulnerable populations disproportionately affected by 
pollution.
    Without agreeing or disagreeing with commenters' impact analysis, 
EPA acknowledges that communities in Detroit face environmental 
conditions that have adverse human health or environmental effects on 
people of color, and/or low-income populations. This action, however, 
is not likely to change existing disproportionate and adverse effects 
on people of color, low-income populations and/or Indigenous peoples 
because it reflects air quality measurements for ground level ozone 
that have improved significantly over time due to the implementation of 
pollution reduction programs in the area and nationally to levels that 
now meet health-based air quality standards.
    Additionally, the Agency expects ozone values to improve further in 
the future as recently promulgated pollution reduction requirements are 
implemented.
    In order to identify environmental burdens and susceptible 
populations in communities in the Detroit area, EPA performed a 
screening-level analysis using the latest version of EPA's EJ screening 
and mapping tool (``EJSCREEN'').\2\ EPA utilized the EJSCREEN tool to 
evaluate environmental and demographic indicators at the county level 
for each county within the Detroit nonattainment area (Livingston, 
Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne Counties).
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    \2\ See documentation on EPA's Environmental Justice Screening 
and Mapping Tool at https://www.epa.gov/ejscreen.
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    EJSCREEN provides environmental indicators for 12 pollutants or 
sources, which include fine particulate matter (PM2.5), 
ozone, air toxics cancer risk, traffic proximity, lead paint, Superfund 
site proximity, underground storage tanks, and wastewater discharge. Of 
the seven counties in the Detroit area, all but St. Clair County scored 
at or above the 80th percentile nationally for at least one indicator: 
Livingston County for Superfund site proximity and wastewater; Macomb 
County for PM2.5, traffic proximity, Superfund site 
proximity, and underground storage tanks; Monroe County for ozone; 
Oakland County for traffic proximity, underground storage tanks, and 
wastewater; Washtenaw County for underground storage tanks; and Wayne 
County for PM2.5, air toxics cancer risk, traffic proximity, 
lead paint, underground storage tanks, and wastewater discharge.
    EPA's screening-level analysis indicates that, of the seven 
counties in the Detroit area, only Wayne County scored above the 
national average for the EJSCREEN ``Demographic Index,'' which is the 
average of an area's percent minority and percent low-income 
populations. As discussed in EPA's EJ technical guidance, people of 
color and low-income populations often experience greater exposure and 
disease burdens than the general population, which can increase their 
susceptibility to adverse health effects from environmental 
stressors.\3\ As a function in part due to its relatively high 
demographic index, Wayne County is the only county in the Detroit area 
scoring at or above the 80th percentile in at least one EJ Index, which 
is derived by combining a single environmental factor with the 
demographic indicator. Specifically, Wayne County has EJ Indexes above 
the 80th percentile in PM2.5, ozone, traffic proximity, lead 
paint, and underground storage tanks. EPA has provided that if any of 
the EJ indexes for the areas under consideration are at or above the 
80th percentile nationally, then further review may be appropriate.\4\
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    \3\ EPA, ``Technical Guidance for Assessing Environmental 
Justice in Regulatory Analysis,'' section 4 (June 2016).
    \4\ EPA, ``EJSCREEN Technical Documentation,'' appendix H 
(September 2019).
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    EPA is aware of and sensitive to commenters' concerns about 
elevated asthma rates and other respiratory diseases in the Detroit 
area. GLELC references statistics showing that asthma rates for adults 
in Detroit increased from 15.5% in 2016 to 16.2% in 2021. Asthma can be 
a debilitating illness made worse by poor air quality, including high 
ozone concentrations, among other stressors.
    As an initial matter, EPA notes that the October 26, 2015, 
rulemaking strengthening the ozone NAAQS to the level of 0.070 ppm 
provided a detailed rationale for the Administrator's determination 
that the 2015 ozone NAAQS would be protective of public health (80 FR 
65292). This rationale included explicit consideration of protection 
for people, including children, with asthma. As we explain in the 
October 26, 2015, rulemaking, asthma is a multi-etiologic disease, and 
air pollutants, including ozone, represent only one potential factor 
that may trigger an asthma exacerbation. The design value for ozone in 
the Detroit area has decreased from 0.073 ppm, when the area was 
initially designated nonattainment for the 2015 ozone NAAQS (83 FR 
25776) to the current 0.070 ppm (87 FR 14210).
    EPA reviewed current and upcoming emission reduction measures that 
are anticipated to further mitigate pollution issues in the Detroit 
area. Existing Federal mobile source and point source emission 
reduction programs will result in ongoing NOX and VOC 
emissions reductions in the Detroit area. For example, NOX 
cap and trade programs such as the Cross-State Air Pollution Rule 
continue to achieve emissions reductions that are protective of human 
health regardless of whether EPA makes a clean data determination or 
redesignates downwind areas for any NAAQS. In addition, the Federal 
Good Neighbor Plan for the 2015 ozone NAAQS, as promulgated, is 
projected to achieve emissions reductions that will provide health 
benefits to populations living in proximity to covered facilities 
beginning in the 2023 ozone season.\5\
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    \5\ See Regulatory Impact Analysis available at https://www.epa.gov/csapr/good-neighbor-plan-2015-ozone-naaqs.
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    Comment: A comment by GLELC noted that EPA has discretion to delay 
action on a concurrence of an exceptional events demonstration and 
clean data determination, or to not act at all. The commenter stated, 
``[a]t a

[[Page 32586]]

minimum, EPA has the discretion to wait for this summer's ozone season 
to see if the area will continue to attain the standards.'' The 
commenter raised Executive Order 12898, and noted specifically its 
direction that Federal agencies address environmental justice ``to the 
greatest extent practicable and permitted by law.'' The commenter also 
suggested that, in areas where EPA has discretion, EPA should consider 
environmental justice concerns to the greatest extent practicable when 
exercising that discretion.
    Response: EPA recognizes that it has discretion in issuing a clean 
data determination. We have considered the information raised by the 
commenters and information submitted by the State, as well as air 
quality trends in the area and control measures that would address 
ozone pollution. We acknowledge the environmental justice 
considerations for this area (see discussion above). We note that there 
are many Federal measures, both for point sources and mobile sources, 
that will continue to require reductions in ozone precursor pollutants. 
All monitors in the nonattainment area must have a design value i.e., 
3-year average of the 4th high maximum daily 8-hour average, at or 
below the NAAQS to show attainment. We have also assessed critical 
concentration values for the Detroit area that the Detroit area would 
need to record in the 2023 ozone season in order for the area to have a 
violating design value for the 2021-2023 period. The critical value for 
Allen Park is 0.073 ppm, and all other monitoring sites have critical 
values of 0.075 ppm or higher. By comparison, three monitors in the 
Detroit area had critical values of 0.071 ppm for the 2022 ozone season 
for the 2020-2022 period. We therefore exercise our discretion to issue 
the clean data determination.
    Comment: Several commenters raised concerns with the Stellantis 
Mack Avenue Auto Assembly Plant located in Wayne County. GLELC 
referenced a complaint filed under title VI of the Civil Rights Act 
regarding permits issued by EGLE for this facility.
    Response: This determination is based upon complete, quality-
assured, and certified ambient air monitoring data for the 2020-2022 
design period showing that the area achieved attainment of the 2015 
ozone NAAQS, based on the exclusion of certain exceedances of the 2015 
ozone NAAQS that were due to exceptional events. EPA acknowledges 
comments regarding a pending title VI complaint and notes that the 
title VI complaint process is a separate legal process from this clean 
data determination.
    Commenters have raised concerns regarding VOC emissions from the 
Stellantis facility. EPA's concern in this action is whether ambient 
ozone data support a determination that the Detroit area has attained 
the 2015 ozone NAAQS. This determination does not take emissions 
allowed under any individual permit, like that of the Stellantis-Mack 
Ave. Assembly Plant, into consideration, but instead evaluates 
aggregate area-level ozone concentrations. Pursuant to that evaluation, 
the area continues to attain the 2015 ozone NAAQs.
    As noted by commenters, EPA is actively engaged in negotiations 
toward resolution of a claim of discrimination regarding the Stellantis 
facility, which was filed by GLELC under title VI of the Civil Rights 
Act. EPA believes it would be inappropriate to discuss the confidential 
matters in the case investigation here.

B. Exceptional Events Demonstration

    Comment: The commentors stated, ``Regarding the Ozone Exceptional 
Event Demonstration, the Commenters believe that EGLE has not met its 
high evidentiary burden by failing to adequately demonstrate that 
wildfire smoke from Northern Canada traveled to the East 7 Mile monitor 
on June 24 and 25, 2022 . . .''
    Response: EPA's technical support document for the review of EGLE's 
exceptional events demonstration describes EPA's finding that EGLE 
adequately demonstrated that wildfire smoke from Northern Canada 
traveled to the East 7-Mile monitor on June 24 and 25, 2022. Further 
responses to comments provide additional detail about how the ozone 
exceedances at East 7-Mile were due to wildfire smoke, as indicated by 
measurements of Brown Carbon (BrC), which is a by-product of incomplete 
combustion and thus an indicator of wildfire smoke. Smoke from 
wildfires in Saskatchewan and Manitoba Provinces, Canada was 
transported into the Detroit area throughout the week of June 20, 2022. 
By June 23, 2022, smoke from these fires had reached southern Ontario 
at the Michigan border. Northerly winds on June 23, 2022 transported 
the smoke to Detroit, and a cold front moved through the Detroit area 
on June 23, 2022, bringing air and wildfire emissions from Canada 
behind it. The air behind the cold front subsided, which allowed the 
air containing wildfire emissions aloft to sink to the surface. The 
presence of smoke from the Canadian wildfire behind this cold front 
resulted in atypical air quality for such a frontal passage. Although 
meteorological conditions were stagnant on June 24-25, 2022, under a 
surface high pressure, the Canadian wildfire emissions had already been 
transported to the area prior and contributed to elevated ozone 
concentrations.
    After the passage of the cold front on June 23, 2022, a spike in 
BrC, which is a by-product of incomplete combustion and thus an 
indicator of wildfire smoke, was measured at the Dearborn monitoring 
site. The spikes in the BrC data leading up to and including June 24 
and June 25, 2022, show there were elevated levels of woodsmoke in the 
air mass in the Detroit area. HYSPLIT forward trajectory analyses from 
the Saskatchewan and Manitoba fires depict smoke from these fires 
reaching southern Ontario at the Michigan border on June 23, 2022. 
HYSPLIT back trajectory analyses from the East 7-mile monitor depict 
smoke-filled air from this region reaching the Great Lakes region and 
impacting the surface in southern Michigan and Detroit at the time of 
the exceedances. The timing of the HYSPLIT trajectory endpoints, both 
the forward and backward trajectories, align with the timing of the 
smoke movement in the National Oceanic and Atmospheric Administration 
(NOAA) Hazard Mapping System (HMS) maps and with the meteorological 
features in the National Weather Service surface and 850 mb maps, to 
depict movement and retention of smoke from the Canadian fires to the 
East 7-Mile monitor on the exceedance days. The EGLE demonstration, 
prepared with early engagement and feedback from EPA as it was being 
developed, includes technical analysis generated by the State of 
Michigan which EPA considered, using a weight of evidence approach, in 
evaluating whether to reach a decision to concur with the 
demonstration. As discussed in more detail in EPA's response to comment 
about the matching day analysis, the meteorological conditions on the 
exceedance days examined in conjunction with local and background 
emissions do not present the conditions conducive to producing elevated 
ozone concentrations. EPA ultimately concluded that the exceedances at 
issue were due to wildfire smoke, rather than local pollution. Further 
comments will discuss our analysis in more detail.
    Comment: The commentors stated, ``(EGLE) has failed to establish a 
clear causal relationship between the wildfire smoke from Northern 
Canada and the exceedance of the ozone NAAQS at the East 7-Mile monitor 
on the days in question.''
    Response: EPA has carefully analyzed the information submitted by 
EGLE to

[[Page 32587]]

establish a clear causal relationship between the wildfire smoke from 
Northern Canada and the exceedance of the ozone NAAQS at the East 7-
Mile monitor on the days in question. Using a weight of evidence 
approach supported by the previously discussed back trajectory 
analyses, along with local and regional meteorological evidence, a 
matching day analysis, and the presence of surface level BrC 
concentrations, EPA has concluded that a clear causal relationship 
exists between the event and monitored exceedances.
    This conclusion is supported by local and regional meteorological 
evidence, and by a matching day analysis.
    Ozone formation and transport are highly dependent upon 
meteorology. Therefore, a comparison between ozone on similar 
meteorological days with and without fire impacts could support a clear 
causal relationship between the wildfire event and the monitored 
concentration. Significant differences in ozone concentrations among 
days with similar meteorology may indicate influences from non-typical 
sources such as a wildfire. ``EPA Guidance on the Preparation of 
Exceptional Events Demonstrations for Wildfire Events that May 
Influence Ozone Concentrations,'' identifies a matching day analysis as 
an acceptable method to support the demonstration of a clear causal 
relationship between the wildfire event's emissions and the monitored 
ground-level ozone concentrations.
    EGLE submitted a matching day analysis, and, after careful 
consideration, EPA concluded that it was an appropriate factor to 
consider in the weight-of-evidence approach.
    In ``EPA Guidance on the Preparation of Exceptional Events 
Demonstrations for Wildfire Events that May Influence Ozone 
Concentrations,'' we explained that meteorological variables to include 
in a matching day analysis should be based on the parameters that are 
known to strongly affect ozone concentrations in the vicinity of the 
monitor location. EPA's guidance states that these variables may 
include: daily high temperature, hourly temperature, surface wind speed 
and direction, upper air temperature and pressure, relative or absolute 
humidity, atmospheric stability, cloud cover, solar irradiance, and 
others as appropriate. A matching day analysis of this type, when 
combined with a comparison of the qualitative description of the 
synoptic scale weather pattern (e.g., cold front location, high 
pressure system location), can show that the fire contributed to 
elevated ozone concentrations.
    EPA evaluated EGLE's approach to identify meteorologically similar 
days and concluded their analysis was consistent with EPA guidance. 
Furthermore, EPA agreed with ELGE's conclusion, based on 
meteorologically similar days, that there would not have been an ozone 
exceedance under similar meteorological conditions without the presence 
of wildfire smoke.
    EPA determined that EGLE correctly applied the approach outlined in 
EPA's guidance, by identifying similar days through assessment of 
synoptic and local meteorological conditions. EGLE appropriately 
identified daily meteorological parameters such as maximum temperature, 
average temperature, average relative humidity, average wind speed and 
direction, average mean sea level pressure, 850 mb temperature, 850 mb 
wind speed and direction, 500 mb wind speed and direction, mixing level 
ratio (MLR), lifted condensation level (LCL), convective available 
potential energy (CAPE), 1,000 to 500 mb thickness, and total daily 
global horizontal irradiance (GHI). Further, EGLE appropriately 
determined thresholds for maximum temperature, average temperature, 
average relative humidity, average wind speed, and average wind 
direction. EGLE removed from its analysis days that fell outside of the 
set thresholds because the meteorology was not considered similar. Once 
the remaining matching days were left, EGLE analyzed upper air 
meteorology conditions, smoke influence, HYSPLIT, and precipitation to 
establish the final days for the matching day analysis.
    EPA agrees with EGLE's finding that meteorological parameters that 
strongly affect ozone concentrations in southeast Michigan consist of 
maximum temperature, average temperature, surface wind speed, surface 
wind direction, upper-level (850 mb) temperature, and upper-level wind 
flow (850 mb and 500 mb), and EPA therefore determined that EGLE's 
selection of these parameters for the matching day analysis was 
appropriate.
    Typical meteorological conditions for high ozone days in the 
Detroit area consist of southerly winds at the surface and aloft, along 
with a multiday buildup of pollutants. Table 6 in EGLE's demonstration 
depicts the exceptional event days and matching days meteorological 
parameters, as well as the MDA8 ozone concentrations on those days, 
which were 61 ppb or less on the days with matching meteorological 
conditions.
    EGLE's matching day analysis establishes that, absent some atypical 
circumstances, local ozone formation in southeast Michigan is not 
likely to occur under the meteorological conditions present, as it was 
on June 24 and June 25, 2022. Although conditions that day were 
stagnant and temperatures were warm (conditions often conducive for 
local ozone production), these factors were offset by a northerly 
component to the wind at 850 mb. Typically, winds from this direction 
would prevent the southerly air flow that can lead to increased ozone 
concentrations, and would provide clean air to southeast Michigan 
resulting in lower ozone concentrations than values observed on June 
24, 2022, and June 25, 2022. Nevertheless, on June 24, 2022, the first 
ozone exceedance day of this episode occurred under these atypical 
meteorological conditions for high ozone days such as the 850 mb 
northerly wind.
    EGLE's matching day analysis identified several matching days with 
northerly flow at 850 mb. All the matching days had MDA8 ozone 
concentrations below 70 ppb, with one of the days having a MDA8 of just 
41 ppb. The similar weather patterns and supplementary meteorological 
parameters between the exceptional event days and matching days depict 
that, on similar meteorological days, ozone concentrations would be 
well below the standard, providing additional evidence that a non-
typical source aided in ozone concentrations exceeding the standard. 
This data strongly suggests that the exceedances occurring on June 24, 
2022, and June 25, 2022, were caused by an exceptional event, in this 
case wildfire smoke from Canada.
    EPA's conclusion is further supported by the presence of BrC.
    Local ground-based measurements of BrC, a by-product of incomplete 
combustion, is an indicator of wildfire smoke. The clear causal 
relationship between the wildfire smoke from Northern Canada and the 
exceedance of the ozone NAAQS at the East 7-Mile monitor on the days is 
further established by the presence of BrC in the Detroit area on the 
days leading up to and including June 24, 2022, and June 25, 2022. 
Typically with the passage of a cold front, pollutant concentrations 
are expected to decrease, but after the passage of the cold front on 
June 23, 2022, a spike in BrC was measured at the Dearborn monitoring 
site at the ground level. The cold front brought air and wildfire 
emissions from Canada behind it and blocked transport from the fires 
south of Michigan that were previously impacting southeast Michigan. 
The spikes in the BrC data leading up to and including June 24,

[[Page 32588]]

2022, and June 25, 2022, show there were elevated levels of woodsmoke 
in the air mass in the Detroit area and are an indicator of surface 
level smoke. Although smoke from fires south of Michigan likely 
affected the area from June 20 to June 21, 2022, the source of smoke 
for June 23 to June 25, 2022 are the Canadian wildfires according to 
the HYSPLIT back trajectories and the placement of the cold front that 
advanced through the area. Ozone concentrations violated the standard 
after the winds shifted from a southerly flow to a northerly component 
at 850 mb after the passage of the cold front providing further 
evidence of Canadian wildfire smoke impacts on southeast Michigan.
    Comment: The commenters stated that EPA's approach for states to 
submit a demonstration and for EPA to evaluate the submittal using a 
weight of evidence approach, is biased. The commenters noted, ``The 
state or local air agency that submits a demonstration is a proponent 
of the demonstration, and therefore has incentive to either ignore or 
downplay evidence that is unfavorable to the demonstration. [internal 
footnote deleted] EPA's limitation of other evidence to that 'otherwise 
known to the agency' abdicates EPA's duty to environmental justice 
communities. Such communities may not have the technical expertise to 
make relevant, unfavorable evidence `known to the agency.' Thus, EPA's 
approach is inherently biased in favor of granting exceptional event 
exclusions.''
    Response: EPA's requirements for exceptional events submittals 
require the State to provide notice and opportunity for public comment 
at the State level prior to submitting an exceptional event 
demonstration to EPA. As part of this process, additional supportive or 
non-supportive evidence can be provided. In the 2016 Revisions to the 
Exceptional Events Rule: Update to Frequently Asked Questions, EPA 
recommends air agencies consult with their EPA regional office to 
identify which types of analyses may be most useful in supporting the 
weight of evidence for a clear causal relationship, and to rule out 
analyses that may be unnecessary. The EGLE public comment period began 
on December 19, 2022, and concluded on January 18, 2023. EPA's 
evaluation of the exceptional event, using the weight of evidence 
approach, considers the demonstration submitted by the State as well as 
the comments received during the State's public comment period.
    EPA's responsibility is to use its technical expertise to evaluate 
the State demonstration and public comments to inform a decision 
regarding concurrence or nonconcurrence of the exceptional event. We 
can also defer an exceptional event decision if we determine that the 
demonstration does not have regulatory significance. With regard to the 
commenters' concern about the ability of communities with environmental 
justice (EJ) concerns to effectively make relevant, unfavorable 
evidence known to the agency, EPA is committed to the meaningful 
involvement and fair treatment of communities with EJ concerns in the 
context of the regulatory action. If EPA's independent technical 
analysis of a State's exceptional event demonstration leads us to 
conclude that the demonstration is deficient in its evidence or 
analysis and EPA requires additional information, EPA will request that 
the State provide the information, if available. If such information 
cannot be provided and EPA is unable to access such information 
independently, that may lead to a nonconcurrence decision. In the event 
that EPA has evidence that supports a decision on an exceptional event 
demonstration contrary to what a State has attempted to establish, EPA 
will consider such evidence.
    Comment: The commenters stated, ``EPA's rush to carry out a clean 
data determination is particularly problematic here, because EPA 
dragged its heels in designating the area nonattainment in the first 
place and later reclassifying the area to Moderate, and only did so in 
each instance as the result of a citizens' suit. By itself, this is 
arbitrary and capricious behavior. At a minimum, EPA has the discretion 
to wait for this summer's ozone season to see if the area will continue 
to attain the standards.''
    Response: As described in the preamble to EPA's October 3, 2016, 
Final Exceptional Events Rule (81 FR 68216, 68267-68268), EPA is 
committed to work collaboratively with air agencies as they prepare 
exceptional event demonstrations. This collaboration, communication, 
and engagement between EPA and the State is expected to occur 
throughout the duration of the exceptional events process beginning 
with the initial notification of the potential exceptional event, and 
continue through the State's public comment period and formal submittal 
of the demonstration to EPA. It also describes how EPA will generally 
give priority to exceptional events determinations that may affect 
near-term regulatory decisions, such as EPA's action on SIP submittals, 
NAAQS designations and clean data determinations, and states EPA's 
intent to make decisions regarding event status expeditiously following 
submittal of a complete demonstration if required by a near-term 
regulatory action.
    For the Southeast Michigan exceptional event demonstration 
submitted to EPA on January 26, 2023, EPA had provided EGLE feedback 
prior to its public comment period, which began on December 19, 2022. 
Due to the pending final action on EGLE's redesignation request for the 
Detroit area, proposed in April 2022 but not finalized pending the 
evaluation of the area 2022 ozone season data, EPA recognized the high 
priority of evaluating EGLE's demonstration. EGLE's public comment 
period on its exceptional events demonstration concluded on January 18, 
2023, and EGLE submitted the demonstration and response to comments to 
EPA on January 26, 2023. EPA began reviewing and drafting its 
concurrence TSD while EGLE's demonstration was open for public comment 
and during the period that EGLE prepared its response to public 
comments. Because EGLE's demonstration submittal to EPA on January 26, 
2023, was substantially similar to the version of the demonstration 
that had been available during the State public comment period, EPA was 
able to expeditiously review the comments EGLE received on the 
demonstration and concur on EGLE's demonstration on January 30, 2023.
    Comment: The commenters stated, ``In simple terms, EGLE only relies 
on data from the handful of days with the worst ozone pollution to 
determine whether or not an area is attaining the ozone NAAQS. By their 
very nature, most if not all of the MDA8 ozone concentrations that EGLE 
may want to exclude from their design value will be among the worst at 
that given monitor in any given year.''
    Response: The exceptional events rule was written to apply to any 
criteria pollutant NAAQS per 40 CR 50.14(a)(1)(ii). Under 40 CFR part 
50 appendix U(4)(a), the 2015 ozone NAAQS are met at an ambient air 
quality monitoring site when the 3-year average of the annual fourth-
highest Maximum Daily 8-Hour Average (MDA8) ozone concentration (i.e., 
the form of the standard) is less than or equal to 0.070 ppm. Due to 
the form of the 2015 ozone NAAQS, for the data to be regulatory 
significant, the data will likely be in a high percentile of the 5-year 
distribution or one of the four highest within one year.
    An exceptional event demonstration must have regulatory 
significance, which means that it would affect a regulatory 
determination by the Administrator, as specified in 40 CFR

[[Page 32589]]

50.14(a)(1)(i). The determination of whether the demonstration has 
regulatory significance is a separate evaluation from whether the 
demonstration has established a clear causal relationship between the 
event and the monitored exceedance or violation.
    Comment: The commenters stated, ``EGLE also suggests that an 
increase in the MDA8 of 30 parts per billion from June 23 to June 24, 
2022, is exceptional. However, EGLE also provides that this increase is 
far from unprecedented as it has happened at least three other times in 
the past five years. [internal footnote deleted]''
    Response: The East 7-Mile monitoring station has seen an increase 
of 30 ppb or more from one day to the next on five occasions in the 
last five years. Only three out of the five occasions led to 
concentrations above 70 ppb, with one of these instances being June 24, 
2022, the exceptional event day. Michigan's ozone season begins March 1 
and ends October 31 each year, 246 days per year. This suggests that 
this 30 ppb increase from one day to the next, occurring just 3 out of 
1,231 monitoring days, is a rare circumstance. However, whether such an 
increase is termed ``exceptional'', ``unprecedented'', or not, other 
information included in EGLE's demonstration--the evidence supporting 
the clear causal relationship between the wildfires and the 
exceedances, the evidence of the uniqueness of the concentrations 
compared to those for the past five years, and the conclusions of the 
matching day analysis of similar meteorological days, support EPA's 
concurrence without consideration of the significance of the 30 ppb 
increase.
    Comment: The commenters stated, ``During none of the previous five 
years has EGLE sought to exclude ozone data from the East 7-Mile 
monitor because it was impacted by wildfire smoke. Additionally, there 
have been eight instances in recent years when ozone concentrations at 
the East 7-Mile monitor have increased between 25 and 29 ppb from one 
day to the next. [internal footnote deleted] This illustrates that 
significant increases in the MDA8 up to 30 ppb is not a rare occurrence 
and has happened numerous times in the absence of any exceptional 
event.''
    Response: EGLE's decision to seek or not seek to exclude other 
ozone data from consideration by EPA is irrelevant to EPA's exceptional 
event decision here. Wildfire smoke can impact air quality or ozone 
concentrations on days that do not have regulatory significance. As 
stated in a previous response, whether an increase greater than 25 ppb 
is termed ``exceptional'', ``unprecedented'', or not, other information 
included in EGLE's demonstration is sufficient for EPA to determine 
concurrence without consideration of the significance of the increase.
    Comment: The commenters stated, ``It is well established that 
PM2.5 is a more relevant pollutant to utilize for the multi-
pollutant corroboration analysis than PM10. [internal 
footnotes deleted] This is noted by the EPA in its recently updated 
Frequently Asked Questions regarding the Exceptional Events Rule which 
states `elevated PM2.5 . . . may be an indicator of smoke, 
and therefore may provide supporting evidence that elevated ozone in 
the same area was at least partially attributable to a wildfire event.' 
[internal footnotes deleted] The EPA also cautions against relying on 
PM10 concentrations as an indicator of smoke because 
`PM10 generally tends to `fall' to ground level relatively 
quickly in the vicinity of the event and, in our experience, is not 
usually subject to long range transport.' [internal footnotes deleted] 
Despite this clear EPA guidance stating that Michigan should rely on 
PM2.5 data rather than PM10 data to support 
exceptional event demonstrations related to wildfires, the Ozone 
Exceptional Event Demonstration relies primarily on PM10.''
    Response: According to EPA's ``Guidance on the Preparation of 
Exceptional Events Demonstrations for Wildfire Events that May 
Influence Ozone Concentrations,'' air agencies can use example evidence 
such as concentrations of supporting ground level measurements 
including particulate matter (mass or speciation) to demonstrate that 
wildfire emissions were present at the altitude of the monitor. The 
Guidance also suggests including ``Plots of co-located or nearby CO, 
PM2.5, PM10, or O3 and 
PM2.5 precursor concentrations . . .'' EGLE evaluated their 
PM10 concentrations but did not rely solely on 
PM10 concentrations for their multi-pollutant corroboration. 
To expand commenter's quote from the recently updated Frequently Asked 
Questions document regarding PM10 and smoke: 
``PM10 generally tends to ``fall'' to ground level 
relatively quickly in the vicinity of the event and, in our experience, 
is not usually subject to long-range transport. However, all 
demonstrations are evaluated case-by-case based on the weight of 
evidence''. EPA's evaluation of EGLE's demonstration considered the BrC 
data measured for determining surface-level smoke in the days leading 
up to the event, as well as the event days. EPA recognizes that long-
range transport of wildfire smoke would not typically have an impact on 
nearby PM10.
    Comment: The commenters stated, ``EGLE's LADCO [Lake Michigan Air 
Directors Consortium] screening analysis does not support a finding 
that wildfire smoke was present in the Detroit area during on June 24 
or 25, 2022.''
    Response: EPA evaluated and considered all the information provided 
in EGLE's demonstration and EPA's Technical Support Document (TSD) 
describes which analyses EGLE provided that EPA found to be persuasive. 
EPA did not rely on all evidence provided in EGLE's demonstration. EPA 
reviews exceptional events demonstrations on a case-by-case basis using 
a weight of evidence approach considering the specifics of the 
individual event. EGLE's LADCO screening analysis is one piece of 
evidence to identify the potential for smoke influences on surface air 
quality conditions using the variability of ozone and PM2.5 
data with input from smoke maps. PM2.5 concentrations can be 
comprised of many components, including sulfates, nitrates, metals, 
organic and elemental carbon, as well as many other species. The LADCO 
analysis does not show a high peak (representing high 24-hr 
PM2.5 concentrations) for PM2.5 during this time 
period, however, EGLE's demonstration includes analysis of hourly BrC 
data from their air monitoring network for this period of time. BrC 
particles are released by the combustion of organic matter and are an 
indicator of the presence of wildfire smoke. The HMS maps, HYSPLIT back 
trajectories, upper-level and surface weather maps, and BrC data 
provide evidence that wildfire smoke was present in the Detroit area, 
as well as at the ground level where measurements are made.
    Comment: The commenters stated, ``First, EGLE has unjustifiably 
limited its matching day analysis to identifying days with similar 
meteorological conditions in the past four years (2022-2019) rather 
than the past five years (2022-2018).''
    Response: According to EPA's ``Guidance on the Preparation of 
Exceptional Events Demonstrations for Wildfire Events that May 
Influence Ozone Concentrations,'' since high ozone days may be 
relatively rare, air agencies should examine several years of data for 
similar meteorology versus restricting the analysis to high ozone days 
only. EGLE searched for similar meteorological days over a 3-year

[[Page 32590]]

period, consistent with the most recent design value period. During 
EGLE's search for similar meteorological days, EGLE initially analyzed 
years 2020-2022 but due to unusual circumstances of matching days and 
smoke influence, EGLE expanded its analysis to include 2019. Adding the 
additional year provided enough similar meteorological days for a 
matching day analysis.
    Comment: The commenters stated, ``Second, EGLE states that even 
within the unjustifiably limited 4 year period it used for its matching 
day analysis, it utilized HYSPLIT trajectories and smoke maps to 
determine whether `smoke existed over the region' on certain days and 
excluded those days from its matching day analysis. [internal footnote 
deleted] EGLE has not submitted any other exceptional event 
demonstration in the past 5 years to justify excluding any other ozone 
data collected by the East 7-Mile monitor from regulatory use.''
    Response: EPA's ``Guidance on the Preparation of Exceptional Events 
Demonstrations for Wildfire Events that May Influence Ozone 
Concentrations'' notes a comparison between ozone on meteorologically 
similar days with and without fire impacts could support a clear causal 
relationship between the fire and the monitored concentration. 
Supporting documentation used in a matching day analysis to demonstrate 
a day has potential smoke influence is not subject to the same level of 
rigor and evaluation as described in the exceptional event rule for 
exceptional events. Furthermore, wildfire smoke can impact air quality 
or ozone concentrations on days that do not have regulatory 
significance, and days without regulatory significance would not 
qualify for consideration under the exceptional events rule, so not all 
days with smoke are identified or pursued for evaluation according to 
the exceptional events rule. To identify and omit matching days from 
the matching day analysis that may have had smoke influence, EGLE 
evaluated smoke maps and HYSPLIT back trajectories. If their evaluation 
depicted any potential smoke influence on the matching day 
concentrations, the day was excluded from the matching day analysis.
    Comment: ``The Commenters disagree with EGLE's assertion that it is 
not required to assess local emissions sources and their impacts on 
ozone pollution at the East 7-Mile monitor on June 24 and 25, 2022. 
[internal footnote deleted]'' The commenters also stated, ``However, 
many monitors throughout the Detroit area showed increases in 
NOX concentrations from June 23rd to the 24th. [internal 
footnote deleted]''
    Response: Air pollution concentrations can increase due to 
increased emissions, or decreased dispersion of local emissions. EPA 
recognizes meteorological conditions were stagnant on June 24-25, 2022, 
which could be an explanation for increases in NOX 
concentrations. However, wildfire emissions had residual NOX 
which had already been transported to the area and contributed to the 
ozone precursor emissions that resulted in increased ozone production. 
Some typical meteorological conditions for high ozone days in Detroit 
were present on the matching day analysis and the exceptional event 
days but the northerly wind component aloft is atypical for such days. 
The northerly wind aloft usually brings in cleaner air to Detroit but 
for this exceptional event, that was not the case. EPA's review of the 
demonstration concluded that wildfire smoke affected air quality at the 
monitoring site; however, it did not suggest that local sources of 
pollution were not also contributing precursor emissions that 
potentially contributed to the higher ozone concentrations observed at 
the East 7-Mile monitoring site on June 24-25, 2022.
    Comment: The commenters stated, ``Given the limitations of EGLE's 
exceptional event demonstration regarding the matching day analysis and 
multi-pollutant corroboration analysis and the complicating factors 
discussed in the paragraph above, it is necessary for EGLE to conduct 
both a statistical regression modeling analysis and a photochemical 
modeling analysis.''
    Response: Neither the exceptional event rule nor the guidance 
requires all analyses identified in the guidance, such as a statistical 
regression modeling analysis and a photochemical modeling analysis, as 
necessary for a successful demonstration to illustrate the clear causal 
connection between the wildfire and the monitored concentration. EPA's 
``Guidance on the Preparation of Exceptional Events Demonstrations for 
Wildfire Events that May Influence Ozone Concentration'' states ``The 
EPA does not expect an air agency to prepare all identified analyses 
but only those that add to their weight of evidence supporting the 
clear causal relationship. As with all exceptional events 
demonstrations, the submitting air agency and the EPA Regional office 
should discuss the appropriate level of evidence during the Initial 
Notification process.'' In this instance, EGLE provided the appropriate 
level of evidence, and EPA's analysis believes the evidence put forth 
by EGLE is sufficient to demonstrate a clear causal relationship 
between the fire and the monitored ozone exceedances June 24-25, 2022.
    Comment: The commenters stated, ``EGLE has failed to comply with 
public notification requirements for the exceptional event.''
    Response: EGLE's demonstration met the public notification 
requirement for this event. EGLE's air quality forecasts and real-time 
continuous data provided the public notice of Unhealthy for Sensitive 
Groups (USG) Air Quality Index (AQI) ozone concentrations on June 24 
and June 25, 2022, after ambient concentrations of ozone rose quickly 
due to the distant Canadian fires. Data from the air monitors are 
provided, in near-real time, to EPA's AIRNOW website as well as 
Michigan EGLE's website (http://www.deqmiair.org/). Furthermore, a 
Clean Air Action Day was issued for southeast Michigan for June 25, 
2022. Such days are publicly announced the day before ozone 
concentrations are forecasted to reach the USG AQI category.
    Comment: The commenters stated, ``Additionally, EGLE claims it's 
not required to submit a mitigation plan but also claims that the East 
7-Mile monitor has been impacted by wildfire smoke several times over 
the past four years. [internal footnotes deleted] EGLE cannot have it 
both ways--it cannot exclude data from its matching day analysis by 
claiming it was impacted by wildfire smoke without submitting an 
exceptional event demonstration while also claiming it's not required 
to submit a mitigation plan to the EPA because it hasn't had recurring 
issues regarding wildfire smoke at the East 7-Mile monitor.''
    Response: See response above regarding exceptional event 
demonstrations and regulatory significance. Per 40 CFR part 
51(b)(1)(i), generally areas subject to the mitigation requirements 
have experienced three events or three seasons of events of the same 
type and pollutant in a 3-year period and have submitted a 
demonstration or an initial notification of a potential exceptional 
event. Per EPA's Mitigation Plan action on May 12, 2022 (87 FR 29045), 
EPA did not identify Michigan as an area subject to mitigation plan 
requirements.

C. Clean Data Policy

    Comment: The commenters asserted that EPA's original Clean Data 
Policy, as set forth in the May 10, 1995, memorandum from John Seitz, 
stated that EPA would annually review monitoring data and revoke the 
clean data determination if the area

[[Page 32591]]

subsequently violated the standard.\6\ The commenters also noted that 
under the memorandum states were required to continue to operate an 
ambient air quality monitoring network in accordance with EPA rules for 
such networks. The commenters contend that EPA's rules do not create 
any regulatory requirement for EPA to annually review monitoring data 
to verify that it still qualifies for suspension of planning 
requirements and, consequently, EPA fails to create a mandatory 
deadline for such review. The commenters further contended that this 
lack of a mandatory deadline is inconsistent with other provisions in 
the CAA which establish mandatory deadlines for EPA to determine 
whether an area is attaining the NAAQS, specifically, the designation 
of nonattainment areas (two years from promulgation of a standard), 
determination of attainment by the attainment date (six months from the 
attainment date), and action on maintenance plans and redesignation 
requests (18 months from submittal). Finally, the commenters asserted 
that EPA has not codified the requirement for continued operation of 
the monitoring network.
---------------------------------------------------------------------------

    \6\ May 10, 1995, memorandum from John S. Seitz, Director, 
Office of Air Quality Planning and Standards, ``Reasonable Further 
Progress, Attainment Demonstration, and Related Requirements for 
Ozone Nonattainment Areas Meeting the Ozone National Ambient Air 
Quality Standard.''
---------------------------------------------------------------------------

    Response: As the commenters note, EPA initially issued the Clean 
Data Policy in a 1995 memorandum from John Seitz. The approach set 
forth in the memorandum was subsequently codified for the 1997, 2008, 
and 2015 ozone NAAQS.\7\ EPA's longstanding Clean Data Policy has been 
upheld by the D.C. Circuit and all other courts that have considered 
it.\8\
---------------------------------------------------------------------------

    \7\ See 40 CFR 51.918, 40 CFR 51.1118, and 40 CFR 51.1318, 
respectively.
    \8\ The Court of Appeals for the District of Columbia Circuit 
(D.C. Circuit) upheld EPA's rule embodying the Clean Data Policy for 
the 1997 8-hour ozone standard. NRDC v. EPA, 571 F.3d 1245 (D.C. 
Cir. 2009). Other courts have reviewed and considered rulemakings 
applying EPA's Clean Data Policy and have consistently upheld them. 
Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996); Sierra Club v. 
EPA, 375 F. 3d 537 (7th Cir. 2004); Our Children's Earth Foundation 
v. EPA, No. 04-73032 (9th Cir. June 28, 2005 (Memorandum Opinion)), 
Latino Issues Forum v. EPA, Nos. 06-75831 and 08-71238 (9th Cir. 
March 2, 2009 (Memorandum Opinion)).
---------------------------------------------------------------------------

    In this rule, EPA is determining that the Detroit area has attained 
the 2015 ozone NAAQS and is suspending the requirements for the area to 
submit attainment demonstrations and associated Reasonably Available 
Control Measures (RACM), Reasonable Further Progress (RFP) plans, 
contingency measures for failure to attain or make reasonable progress, 
and other planning State Implementation Plans (SIPs) related to 
attainment of the 2015 ozone NAAQS, for as long as the area continues 
to attain the 2015 ozone NAAQS, in accordance with provisions set forth 
at 40 CFR 51.1318. The commenters raise structural and statutory 
objections to the Clean Data Policy provisions of 40 CFR 51.1318. These 
comments are not relevant to EPA's determination of attainment with 
respect to the Detroit area and should more properly have been raised 
in the context of the 2015 Ozone NAAQS Implementation Rule,\9\ which 
contained that provision.
---------------------------------------------------------------------------

    \9\ 83 FR 62998, December 6, 2018.
---------------------------------------------------------------------------

    The 2015 Ozone NAAQS Implementation Rule was promulgated through 
notice and comment rulemaking and subject to the judicial review 
provisions of section 307(b) of the CAA. CAA section 307(b)(1) allows 
petitioners to challenge any of EPA's final actions in the appropriate 
U.S. Court of Appeals, and states that ``[a]ny petition for review 
under this subsection shall be filed within sixty days from the date 
notice of such promulgation, approval, or action appears in the Federal 
Register.'' Further, any such judicial review is limited to only those 
objections that were raised with reasonable specificity in timely 
comments.\10\ In the case of the Implementation Rule for the 2015 ozone 
NAAQS, petitions for judicial review were required to be filed in the 
United States Court of Appeals for the District of Columbia Circuit by 
February 4, 2019. There is an exception to the 60-day time limit, but 
it only applies ``if such petition is based solely on grounds arising 
after such sixtieth day,'' and ``then any petition for review under 
this subsection shall be filed within sixty days after such grounds 
arise.''
---------------------------------------------------------------------------

    \10\ CAA section 307(d)(7)(B).
---------------------------------------------------------------------------

    The commenters did not submit comments regarding the provisions of 
40 CFR 51.1318 during the comment period for the 2015 Ozone NAAQS 
Implementation Rule. The deadline for filing a petition for review on 
the 2015 Ozone NAAQS Implementation Rule has passed. Further, the 
comments raised by the commenters cannot be characterized as ``grounds 
arising after'' the deadline for filing a petition, as they relate to 
structural concerns with EPA's administration of the Clean Data Policy 
and existed at the time EPA promulgated the Implementation Rule.
    While the comments fall outside the scope of this rulemaking, EPA 
would like to note that the Seitz memorandum does not specifically set 
forth an annual deadline for review of monitoring data and revocation 
of the suspension if the area is violating the standard, but rather 
explains that the clean data determination and suspension of the 
obligation to submit certain attainment-related planning requirements, 
``would be contingent on the existence of monitoring data for the areas 
that continue to demonstrate attainment'' and goes on to state that 
``If EPA subsequently determines that an area has violated the 
standard, the basis for the determination that the area need not make 
the pertinent SIP revisions would no longer exist.'' Similarly, the 
clean data provisions codified at 40 CFR 51.1318 for the 2015 ozone 
NAAQS state that the planning SIPs related to attainment of the ozone 
NAAQS for which the determination has been made shall be suspended 
until such time as, ``the EPA determines that the area has violated 
that NAAQS, at which time the area is again required to submit such 
plans.'' States must continue to operate approved air quality 
monitoring networks and report air quality monitoring data to EPA in 
accordance with 40 CFR part 58. Per 40 CFR 58.15, states, or where 
appropriate local, agencies shall submit to EPA an annual monitoring 
data certification letter to certify data collected by FRM, FEM, and 
ARM monitors at SLAMS and SPM sites meet criteria in appendix A to this 
part from January 1 to December 31 of the previous year. The annual 
data certification letter is due by May 1 of each year. The certified 
data can be used to determine whether areas continue to attain the 
NAAQS.

D. Other Issues in the Area

    Comment: The commenters stated, ``EPA has not codified the process 
for annual review of the qualification of an area's status and 
revocation of the suspension if the area is violating the standards. 
Nor has EPA codified the requirements for continued operation of the 
monitoring network. Thus, EPA's rulemakings have left these details 
unaddressed.''
    Response: With regard to the comment regarding EPA's codification 
of the process for annual review of the area's status and revocation of 
the suspension if the area is violating the standards, please see EPA's 
Response to Comments regarding the Clean Data Policy. With regard to 
the comment regarding requirements for continued operation of the 
monitoring network, as described below, the State's monitoring network 
must operate according to the design criteria in 40 CFR appendix D, and 
modification of the air monitoring

[[Page 32592]]

network must meet criteria in 40 CFR 58.14 (c)(1). Design values are 
computed and published annually by EPA's Office of Air Quality Planning 
and Standards (OAQPS) and reviewed in conjunction with the EPA Regional 
Offices.
    Comment: The commenters stated, ``Finally, EPA has left unaddressed 
the problem that a State might not maintain its ambient air quality 
monitoring network sufficiently for EPA to make its annual 
determination. If this occurs, EPA must revoke the suspension, and EPA 
must commit to this process by rule.''
    Response: EPA has specific design criteria for ozone monitoring 
networks described in 40 CFR part 58 appendix D. The minimum number of 
ozone monitors required to operate in a Metropolitan Statistical Area 
(MSA) is determined by the population size and the most recent 3-year 
design values per table D-2 of appendix D to part 58 in 40 CFR. 
Applying the minimum network design criteria to the Detroit 
metropolitan statistical area, EGLE operates three more ozone 
monitoring sites than the minimum required number. No ozone monitors 
are eligible for shutdown unless the monitor has shown attainment 
during the previous five years of monitoring and has a less than 10 
percent likelihood of exceeding 80 percent of any NAAQS over the next 
three years per 40 CFR 58.14(c)(1). Thus, monitors which are 
registering concentrations close to the NAAQS, including those showing 
attainment, are not eligible to be discontinued. Also under 40 CFR 
58.14 (c)(1), in a nonattainment or maintenance area, if the most 
recent attainment plan or maintenance plan adopted by the State and 
approved by EPA contains a contingency measure to be triggered by an 
air quality concentration and the monitor to be discontinued is the 
only State or Local Air Monitoring Stations (SLAMS) monitor operating 
in the nonattainment or maintenance area, the monitor may not be 
discontinued. The ozone monitoring network in the Detroit Nonattainment 
Area has historically monitored ozone at more than the minimum required 
number of monitoring sites, and according to EGLE's Annual Ambient Air 
Monitoring Network Review Plan for 2023, there are no changes expected 
to the ozone monitoring network in Detroit.
    Comment: GLELC referenced EPA's March 14, 2022, proposal to 
redesignate the Detroit area to attainment, based in part on air 
quality data from 2019-2021 showing attainment of the 2015 ozone NAAQS. 
The commenter claims that to redesignate the Detroit area in 2023, EPA 
``must use the three-year period 2021-2023 for the ozone design 
value.'' The commenter also asserts that, to redesignate an ozone 
nonattainment area with Moderate classification, provisions for RACT 
must be approved into the Michigan SIP.
    Response: As noted in EPA's February 3, 2023, proposal to determine 
that the Detroit area attained the 2015 ozone NAAQS, this final action 
is limited to a clean data determination. EPA is addressing final 
action on EGLE's January 3, 2022, redesignation request in a separate 
action, and EPA is responding to comments relevant to the 
redesignation, including issues raised by GLELC regarding recent 
monitoring data and the area's Moderate classification, in that 
separate action.
    Comment: Several commenters questioned EPA's method of data 
collection, or suggested that EPA review additional sources of 
information, including data showing local emission levels. One comment 
recommended that EPA consider impacts from the COVID-19 pandemic, as 
well as a chip shortage affecting auto manufacturing. Another comment 
suggested that Wayne County should have an additional monitoring site.
    Response: In the February 3, 2023, proposed rulemaking, EPA 
explained that under the Clean Data Policy, EPA may make a clean data 
determination if a nonattainment area meets the 2015 ozone NAAQS based 
on three complete, consecutive calendar years of quality-assured air 
quality data for all monitoring sites in the area. Data regarding local 
emission levels, or temporary drops in emission levels due to 
temporarily adverse economic conditions, may be relevant to other 
rulemakings including redesignations to attainment under CAA section 
107(d)(3)(E). However, these factors are beyond the scope of a clean 
data determination, which is an assessment of whether an area is 
factually attaining the NAAQS. As discussed above, the existing 
monitors in the Detroit area meet all requirements for an ozone 
monitoring network. Further, to the extent that local emissions 
information may be relevant to EGLE's exceptional events demonstration, 
the discussion above explains EPA's concurrence on EGLE's analysis 
establishing a clear causal relationship between wildfire smoke and 
high ozone levels at the East 7-Mile monitor.
    Comment: Several commenters raised concerns about local, State, or 
Federal Government. Some commenters criticized past actions by 
government agencies or government officials and noted distrust between 
Detroit residents and government bodies. Some commenters raised 
concerns regarding climate change.
    Response: These concerns are also beyond the scope of this action.

III. Final Actions

    EPA is making a determination that the Detroit area is attaining 
the 2015 ozone NAAQS, based upon complete, quality-assured, and 
certified ambient air monitoring data for the 2020-2022 design value 
period, after concurring on the exclusion of certain exceedances due to 
exceptional events. EPA is also taking final agency action on an 
exceptional events request submitted by EGLE on January 26, 2023, and 
concurred on by EPA on January 30, 2023, based on EPA's evaluation of 
the weight of evidence provided in EGLE's exceptional event 
demonstration. As a result of the clean data determination, EPA is 
suspending the requirements for the area to submit attainment 
demonstrations and associated RACM, RFP plans, contingency measures for 
failure to attain or make reasonable progress, and other planning SIPs 
related to attainment of the 2015 ozone NAAQS, for as long as the area 
continues to attain the 2015 ozone NAAQS.
    In accordance with 5 U.S.C. 553(d) of the Administrative Procedure 
Act (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 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. EPA has 
determined that this rule relieves a restriction because this rule 
suspends the requirements for the area to submit attainment 
demonstrations and associated RACM, RFP plans, contingency measures for 
failure to attain or make reasonable progress, and other planning SIPs 
related to attainment of the 2015 ozone NAAQS, for as long as the area 
continues to

[[Page 32593]]

attain the 2015 ozone NAAQS. For this reason, 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.

IV. Statutory and Executive Order Reviews

    This action makes a clean data determination for the Detroit area 
for the 2015 ozone NAAQS based on air quality data resulting in the 
suspension of certain Federal requirements and does not impose any 
additional requirements.

A. Executive Order 12866: Regulatory Planning and Review, Executive 
Order 13563: Improving Regulation and Regulatory Review 13563, and 
Executive Order 14094: Modernizing Regulatory Review

    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, 13563 (76 
FR 3821, January 21, 2011), and 14094 (88 FR 21879, April 11, 2023).

B. Paperwork Reduction Act

    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.).

C. Regulatory Flexibility Act

    This action merely approves State law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by State law. Accordingly, the Administrator certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by State law. Accordingly, no additional costs to 
State, local, or Tribal governments, or to the private sector, will 
result from this action.

E. Executive Order 13132: Federalism

    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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175 (65 FR 67249, November 9, 2000), requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by Tribal officials in the development of regulatory policies 
that have Tribal implications.'' This rule does not have Tribal 
implications, as specified in Executive Order 13175. It will not have 
substantial direct effects on Tribal governments. Thus, Executive Order 
13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive Order. Therefore, this action is not subject to Executive 
Order 13045 because it approves a State action implementing a Federal 
standard.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer Advancement Act

    This rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) directs 
Federal agencies, to the greatest extent practicable and permitted by 
law, to make environmental justice part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects of their programs, policies, and 
activities on minority populations (people of color and/or Indigenous 
peoples) and low-income populations.
    EPA believes that the human health or environmental conditions that 
exist prior to this action result in or have the potential to result in 
disproportionate and adverse human health or environmental effects on 
people of color, low-income populations and/or Indigenous peoples. 
Demographic data identifies that the Detroit area includes communities 
that are pollution-burdened and underserved. Further, EPA performed a 
screening-level analysis using EPA's EJSCREEN to identify environmental 
burdens and susceptible populations in communities in the Detroit area.
    EPA believes that this action is not likely to change existing 
disproportionate and adverse effects on people of color, low-income 
populations and/or Indigenous peoples. While EPA recognizes the 
importance of assessing impacts of our actions on potentially 
overburdened communities, this clean data determination for the 2015 
ozone NAAQS would not exacerbate existing pollution exposure or burdens 
for populations in the Detroit area.
    As discussed in the Response to Comments section of this preamble, 
there is no information to support a conclusion that EGLE's 
implementation of its 2015 ozone SIP would result in a disparate impact 
on minority populations (people of color and/or Indigenous peoples) and 
low-income populations.

K. Congressional Review Act

    This action is subject to the Congressional Review Act, and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

L. Judicial Review

    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 18, 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,

[[Page 32594]]

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, 
Volatile organic compounds.

    Dated: May 12, 2023.
Debra Shore,
Regional Administrator, Region 5.

    For the reasons stated in the preamble, title 40 CFR part 52 is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.


0
2. In Sec.  52.1170, the table in paragraph (e) is amended by adding an 
entry for ``2015 Ozone Clean Data Determination'' immediately after the 
entry for ``Determination of failure to attain the 2010 SO2 
standard'' to read as follows:


Sec.  52.1170  Identification of plan.

* * * * *
    (e) * * *

                      EPA--Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                     Applicable
   Name of  nonregulatory SIP       geographic or         State       EPA Approval date          Comments
           provision             nonattainment area  submittal date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
2015 Ozone Clean Data            Detroit area        ..............  5/19/2023, [INSERT  EPA's final
 Determination.                   (Livingston,                        FEDERAL REGISTER    determination suspends
                                  Macomb, Monroe,                     CITATION].          the requirements for
                                  Oakland, St.                                            EGLE to submit an
                                  Clair, Washtenaw,                                       attainment
                                  and Wayne                                               demonstration and
                                  Counties).                                              other associated
                                                                                          nonattainment planning
                                                                                          requirements for the
                                                                                          Detroit nonattainment
                                                                                          area for as long as
                                                                                          the area continues to
                                                                                          attain the 2015 ozone
                                                                                          NAAQS.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2023-10562 Filed 5-18-23; 8:45 am]
BILLING CODE 6560-50-P


