[Federal Register Volume 88, Number 97 (Friday, May 19, 2023)]
[Rules and Regulations]
[Pages 32584-32594]
[FR Doc No: 2023-10562]

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

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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<PHONE_NUMBER> 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,<PHONE_NUMBER>, [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

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

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

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,

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

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

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

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

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

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,

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


[Federal Register Volume 76, Number 100 (Tuesday, May 24, 2011)]
[Rules and Regulations]
[Page 30014]
[FR Doc No: 2011-12674]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2011-0378]

Drawbridge Operation Regulation; New Jersey Intracoastal Waterway
(NJICW), Inside Thorofare, Atlantic City, NJ

AGENCY: Coast Guard, DHS.

ACTION: Notice of temporary deviation from regulations.

-----------------------------------------------------------------------

SUMMARY: The Commander, Fifth Coast Guard District, has issued a
temporary deviation from the regulations governing the operation of the
US40-322 (Albany Avenue) Bridge, at NJICW mile 70.0, across Inside
Thorofare in Atlantic City, NJ. The deviation restricts the operation
of the draw span in order to facilitate the free movement of vehicles
over the bridge during the Dave Matthews Band three-day series of
concerts and fireworks display.

DATES:  This deviation is effective from 7 a.m. on June 24, 2011 until
2 a.m. on June 27, 2011.

ADDRESSES: Documents mentioned in this preamble as being available in
the docket are part of docket USCG-2011-0378 and are available online
by going to http://www.regulations.gov, inserting USCG-2011-0378 in the
``Keyword'' box and then clicking ``Search''. They are also available
for inspection or copying at the Docket Management Facility (M-30),
U.S. Department of Transportation, West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or e-mail Terrance Knowles, Environmental Protection Specialist,
Fifth Coast Guard District; telephone<PHONE_NUMBER>, e-mail
<EMAIL_ADDRESS>If you have questions on viewing the
docket, call Renee V. Wright, Program Manager, Docket Operations,
telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The New Jersey Department of Transportation
owns and operates this bascule drawbridge and has requested a temporary
deviation from the current operating regulations set out in 33 CFR
117.733(f) to facilitate the free movement of 70,000 fans and vehicles
during the three-day concert and fireworks display.
    The US40-322 (Albany Avenue) Bridge, at NJICW mile 70.0 across
Inside Thorofare in Atlantic City, NJ has a vertical clearance in the
closed position to vessels of 10 feet above mean high water.
    Under normal operating conditions the draw would open on signal,
except that:
    (1)Year-round, from 11 p.m. to 7 a.m. and from November 1 through
March 31 from 3 p.m. to 11 p.m. the draw need only open if at least
four hours notice is given; and
    (2)From June 1 through September 30:
    (i) from 9 a.m. to 4 p.m. and from 6 p.m. to 9 p.m., the draw need
only open on the hour and half hour; and (ii) from 4 p.m. to 6 p.m.,
the draw need not open.
    Under this temporary deviation, beginning at 8 a.m. on Friday June
24, 2011 and ending at 2 a.m. on Monday June 27, 2011, the Albany
Avenue Bridge will open according to the following schedule: The
drawbridge will only open on signal at 8 a.m., 10 a.m., 12 noon, 2
p.m., 4 p.m., 6 p.m., 8 p.m., and the bridge will open between 2 a.m.
and 7 a.m. with four hours advance notice provided. The drawbridge will
not open on signal, except as provided in this paragraph.
    The drawbridge will be able to open in the event of an emergency.
Vessels that can pass under the bridge without a bridge opening may do
so at all times. Vessels with heights greater than 10 feet could use an
alternate route. One alternate route is by way of the Atlantic Ocean.
    The Coast Guard will inform the users of the waterway through our
Local and Broadcast Notices to Mariners of the closure periods for the
bridge so that vessels can arrange their transits to minimize any
impact caused by the temporary deviation.
    In accordance with 33 CFR 117.35(e), the drawbridge must return to
its regular operating schedule immediately at the end of the designated
time period. This deviation from the operating regulations is
authorized under 33 CFR 117.35.

    Dated: May 12, 2011.
Waverly W. Gregory, Jr.,
Bridge Program Manager, By direction of the Commander, Fifth Coast
Guard District.
[FR Doc. 2011-12674 Filed 5-23-11; 8:45 am]
BILLING CODE 9110-04-P