Testimony: Moms Clean Air Force and Other Environmental Organizations, EPA’s Proposed Redesignation of the Detroit Area to Attainment of the 2015 Ozone Standards, April 27, 2022

Date: April 27, 2022

To: Eric Svingen, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, IL 60604

Re: Proposed Redesignation of the Detroit, MI Area to Attainment of the 2015 Ozone Standards, Docket No. EPA-R05-OAR-2020-0730

Dear Mr. Svingen,

On behalf of Sierra Club, Great Lakes Environmental Law Center and the nineteen other Detroit and Michigan-based groups listed above, we submit these comments on EPA’s proposal to redesignate the Detroit ozone nonattainment area to attainment and to approve Michigan’s maintenance plan for the area.¹ We urge EPA not to finalize its proposal at this time.

Redesignation would prematurely halt the state planning process for reductions of ozone precursors such as nitrogen oxides (NOx) and volatile organic compounds (VOCs) to ensure permanent improvements in air quality. EPA bases its proposal on monitored ozone concentrations from 2019-2021, but fails to show that ozone pollution will remain below the National Ambient Air Quality Standard (NAAQS) rather than being a temporary downward blip due to cooler temperatures and higher humidity. Furthermore, Michigan’s maintenance plan is not sufficient to keep the Detroit area in attainment: it does not include specific measures to control pollution in the event of new ozone readings above the NAAQS, and it does not require action until more than 18 months after such reading.

EPA points to federal rules that it hopes will ensure a long-term downward trajectory in ozone pollution, but fails to persuasively link these rules to specific impacts in Southeast Michigan or to identify enforceable, permanent reductions that caused the recent reduction in ozone pollution levels. As a result, EPA’s assurances that those levels will remain below the NAAQS over the next ten years ring hollow. Especially in the context of the severe asthma burden already experienced by environmental justice communities in and around Detroit, EPA must not rush to declare the area’s ozone problem solved without a solid basis in evidence. Doing so would be arbitrary and contrary to law, and would contradict the agency’s stated commitment to environmental justice.

Though we appreciate EPA’s commitment that it will not finalize the proposal “if the design value of a monitoring site in the area violates the NAAQS prior to final approval of the redesignation,”² it appears that EPA could finalize its proposal in the middle of this year’s ozone season, thus risking the chance that the area could slip back into nonattainment within mere weeks of redesignation. EPA’s action could jeopardize public health by unnecessarily delaying needed air quality planning requirements and permanent attainment for the area.

I. Background

Southeast Michigan Nonattainment Designation

The Clean Air Act (“Act”) is intended to protect and enhance the public health and public welfare of the nation. See 42 U.S.C. § 7401(b)(1). Accordingly, the Act requires EPA to promulgate primary and secondary NAAQS for “criteria” pollutants, which include ozone. Id. § 7409. EPA must establish the primary NAAQS at levels “the attainment and maintenance of which . . . are requisite to protect the public health.” Id. § 7409(b)(1) (emphasis added). Areas not meeting EPA’s primary ozone NAAQS are required to attain the standard “as expeditiously as practicable,” but in no event later than time frames set forth in Section 181 of the Act. Id. § 7511(a)(1) (emphasis added).

On October 1, 2015, EPA promulgated a revised 8-hour ozone NAAQS of 0.070 parts per million (ppm).³ Upon promulgation of a new or revised NAAQS, section 107(d)(1)(B) of the Act 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.

EPA failed to meet its October 2017 statutory deadline for completing ozone nonattainment area designations for the 2015 NAAQS, and was sued by a coalition of states and environmental and public health groups to enforce the Act’s deadline. Under a court-ordered timetable, EPA finalized the designations in April 2018.⁴ EPA designated a seven-county area in southeast Michigan as a Marginal nonattainment area for the 2015 ozone NAAQS.⁵ However, EPA delayed in publishing the rule in the Federal Register for over a month, resulting in further delay of the rule’s effective date. The designations were finally published on June 4, 2018, and were effective as of August 3, 2018.⁶

To show attainment of the 2015 ozone NAAQS in an area, the state must provide quality-assured data that the 3-year average of the annual fourth highest daily maximum 8-hour average concentration (i.e., the “design value”) 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.⁷ The 3-year ozone design value for 2019–2021 at the monitor the Michigan Department of the Environment, Great Lakes, and Energy (EGLE) has selected to represent the design value for the nonattainment area (East 7 Mile Road in Detroit) is exactly 0.070 ppm.

For an area with an attaining design value to be redesignated as attainment, the state must, among other requirements, demonstrate that the “improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions.” 42 U.S.C. § 7407(d)(3)(E)(iii). EPA has interpreted this statutory requirement to require States seeking an attainment redesignation to “reasonably attribute the improvement in air quality to emissions reductions which are permanent and enforceable” as opposed to temporary reductions in emissions due to adverse economic conditions or unusually favorable meteorology.⁸ In addition, EPA must approve a maintenance plan for the area that “provide[s] for the maintenance of the national primary ambient air quality standard for each pollutant in the area concerned for at least 10 years after the redesignation.” 42 U.S.C. § 7505a(a); 42 U.S.C. § 7407(d)(3)(E)(iv).

Because the Detroit area failed to achieve attainment by August 3, 2021, three years after the effective date of the nonattainment designation, EPA recently proposed to find that the Detroit area failed to attain the 2015 ozone NAAQS by its attainment date.⁹ If that determination were finalized, the area would be reclassified to Moderate nonattainment by operation of law, triggering new requirements for state implementation plan (SIP) submissions that apply to Moderate areas.¹⁰

B. Ozone Pollution and Its Disproportionate Impacts in Southeast Michigan

Ozone is not emitted directly into the air but is formed when NOx and VOCs, known as “ozone precursors,” react in the presence of sunlight.¹¹ Such emissions contribute to peak ozone formation during hot, dry, stagnant summertime conditions. In Michigan, the ozone season extends from March 1 through October 31.¹² Higher ozone levels are associated with increases in asthma medication use, the number of asthma hospitalizations, and risk of death.¹³ Ozone exposure can cause a number of health problems, including chest pain, coughing, throat irritation, and congestion. Breathing ozone inflames and damages the airways, reduces lung function, and continues to damage the lungs even after symptoms have disappeared. Ozone also makes the lungs more susceptible to infection and repeated exposures may permanently scar lung tissue. These effects lead to increased school and work absences, emergency department visits, hospital admissions, and reliance on medication.¹⁴

Ozone is particularly dangerous for those who already suffer from respiratory illnesses because, for instance, it can worsen asthma, emphysema, and chronic bronchitis. Sensitive populations such as children and the elderly are also especially susceptible to the negative health effects of ozone and are far more likely to be hospitalized for asthma.

The adverse effects of ozone pollution on children’s health are compounded by the fact that children’s lungs are still developing and because children are more likely than adults to be active outdoors, especially at midday and during the afternoon when ozone pollution levels are at their peak, and, thus, face greater exposure risk. EPA has an obligation to ensure that its regulatory actions address the disproportionate risks to children that result from environmental health threats.¹⁵

The latest data on asthma in the Detroit area illustrate that there is no time to waste in addressing ozone pollution. Detroit has experienced one of the worst increases in asthma rates among both adults and children in the last five years. Moreover, Detroit faces a disproportionate asthma burden compared to the rest of the state. As found by the Michigan Department of Health & Human Services, “the asthma burden in Detroit was found to be greater than the overall asthma burden in Michigan.”¹⁶ Between 2016-2021, asthma rates were 46% higher in Detroit than in the rest of Michigan.¹⁷ Even more concerning is the fact that the asthma burden in Detroit appears to be worsening. In 2016, the asthma rate for adults in Detroit was 15.5% compared to Michigan’s 11%.¹⁸ In 2021, the asthma rates in Detroit adults jumped to 16.2% while Michigan stayed nearly the same at 11.1%.¹⁹ Disparities in asthma hospitalization rates in Detroit compared to the rest of Michigan are also worsening. In a 2008 study, the Michigan Department of Community Health found that asthma hospitalization rates in Detroit were three times higher than the rates in Michigan as a whole.²⁰ In 2021, the Michigan Department of Health and Human Services found that the rate of asthma hospitalizations was at least four times greater for Detroit residents than Michigan residents as a whole.²¹

As discussed further below, Detroit is, by any measure, an environmental justice community, and thus requires particular attention and protection from EPA. “Environmental justice” is defined as the “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”²² Environmental justice principles require EPA to address the disproportionate impacts of toxic pollutions on marginalized communities of Black, Latinx, indigenous peoples and other people of color.

The burden of ozone pollution’s impact in Southeast Michigan is borne disproportionately by people of color, especially Black adults and children. In 2019, the rate of asthma hospitalizations for Black residents in Detroit was more than three times the rate for Whites.²³ The racial disparities are also abundantly evident throughout Wayne and Washtenaw counties. In Wayne County (including Detroit and other cities), 31.9 per 10,000 Black children were hospitalized due to asthma attacks compared to 5.8 of 10,000 White children.²⁴ Similarly, in Washtenaw County,

45.1 per 10,000 Black children were hospitalized for asthma attacks compared to 11.4 per 10,000 White children.²⁵ Black and other marginalized communities have been disproportionately impacted by increased asthma rates as a result of toxic air pollutions. These findings demonstrate that a delay in achieving permanent attainment for ozone would disproportionately harm Black communities; it is imperative that EPA not rush its decision.

II. EPA Should Not Rush to Designate the Detroit Area as Attainment When the Existing Data Leaves No Room for Error and the Consequences Are Significant

Even a relatively mild ozone season in 2022 could push the area back into nonattainment

As noted in Table 1 of the EPA’s proposal to determine that the Detroit nonattainment area is attaining the 2015 ozone National Ambient Air Quality Standard, air quality monitors in Southeast Michigan have detected concentrations of ozone that result in a 3-year ozone design value that is either just below or equivalent to the NAAQS of 0.070 ppm.²⁶ The margin for NAAQS compliance is particularly thin in St. Clair and Wayne County, where ozone monitors have detected concentrations that result in a 3-year ozone design value of 0.070 parts per million, which is equivalent to the NAAQS.²⁷

At the St. Clair County monitor, if 2022’s fourth-highest daily maximum 8-hour average is 0.071 ppm, then the area would once again be in nonattainment with the ozone standard. Notably, this means that the fourth-highest daily maximum 8-hour average could decrease from 0.072 ppm in 2021 to 0.071 ppm in 2022 and the area would still be in nonattainment regardless of the decrease in ozone concentrations.

At the Wayne County monitor at East 7 Mile Road in Detroit, if 2022’s fourth-highest daily maximum 8-hour average is 0.070 ppm, then the area would once again be in nonattainment with the ozone standard. A similar situation is present at both the Oakland County ozone monitor and the Macomb County ozone monitor at New Haven.

In short, even a relatively mild ozone season in Southeast Michigan in 2022 could trigger nonattainment findings in four counties. Due to the multiple, variable factors that contribute to ozone formation, ozone concentrations can vary significantly from year to year. This is demonstrated by the range in the fourth-highest daily maximum 8-hour ozone concentrations for 2019, 2020, and 2021. In order to approve a redesignation request, EPA must find that the improvement in air quality is “permanent” and the result of “enforceable reductions to emissions.”²⁸ Given the unpredictability of ozone formation, the thin margin of error, and the lack of a detailed analysis establishing a causal connection between the reduction of emissions and reduced ozone concentrations in 2019, 2020, and 2021, we do not believe there is a sufficient basis for the EPA to determine that the reduction in ozone satisfies the requirement in 42 USC 7407(d)(3)(E)(iii).

B. The available monitoring data does not show a steady downward trend

While EPA accepts Michigan’s prediction that the NAAQS will be maintained through 2035 based on projection of emissions of VOC and NOx for the Detroit area that remain at or below 2019 emission levels,²⁹ the actual monitoring data before EPA do not give confidence that reductions in 2021 were part of a steady trend towards attainment. The fourth highest reading increased at every monitor in the area between 2019 and 2020 except for the monitor in St. Clair County (Port Huron), with readings as high as 0.074 ppm in Macomb and Oakland counties and as high as 0.073 ppm in Wayne County. The fourth highest reading for the Port Huron monitor increased between 2020 and 2021. Moreover, the East 7 Mile monitor in Wayne County has exceeded 0.070 ppm in 9 out of the last 11 years and had a 3-year average above the NAAQS in five out of the last six years.³⁰ Likewise, shifting just one year prior from the three years relied upon EPA, the 2018-2020 design values show nonattainment at half of the monitors in the nonattainment area.³¹ In short, there is no reason to believe from the available monitoring data that the 2019-2021 design value will be representative of future ozone concentrations. Nor has EPA provided other persuasive data to counter the monitoring data’s indication that ozone violations remain a persistent problem in the Detroit area, as discussed further below.

C. An attainment designation could delay achieving and maintaining attainment long-term

EPA’s decision to redesignate the area would prematurely halt ongoing planning efforts to reduce NOx and VOCs within the nonattainment area and in other contributing areas. Both EGLE and Lake Michigan Air Directors Consortium (LADCO) have been involved in studying control measures and have identified concrete opportunities to reduce emissions from the many NOx and VOC polluters in the area.³² Without a nonattainment designation, the state will face no obligation to select or implement any of these control measures to assure ozone levels are maintained below the NAAQS.

Sierra Club and others have also identified pollution control improvements at facilities within the nonattainment area that could bring air quality improvements. For example, the Monroe coal- fired power plant is the largest single source of NOx emissions in the state emitting 15,219 tons annually, along with 256 tons of VOCs.³³ Air quality expert Joe Kordzi analyzed the NOx emissions of the Monroe coal-fired power plant in the context of comments on EGLE’s regional haze plan and found that the performance of Monroe Unit 1’s Selective Catalytic Reduction equipment (“SCR”) has been gradually worsening over the years.³⁴ Because of the lax NOx limit in Monroe’s existing permit, there is not currently a requirement that the SCR operate at its maximum efficiency. Mr. Kordzi also found that it is likely any improvement needed to ensure consistency and an improved NOx removal efficiency would be very cost-effective.³⁵

There are of course other large point sources of ozone precursors in the Detroit area, like the Marathon Refinery, which has the fourth highest emissions of VOCs in the state.³⁶ By redesignating the area to attainment, EPA will allow discussions about Reasonably Available Control Technology for the area’s many industrial polluters, which would be required in a Moderate area nonattainment plan, to cease. Though similar discussions and planning might resume upon redesignation to nonattainment, there could be several years of delay in the meantime while excess ozone levels endanger public health. For example, even if EPA were to redesignate the area as nonattainment as soon as 2023, the state would then have three additional years (until 2026) to come back into nonattainment, delaying the schedule originally triggered by the current nonattainment designation by five years.³⁷ Moreover, whereas EPA’s proposal to “bump up” the area to a Moderate designation would likely proceed to a final rule this year if EPA does not redesignate the area to attainment, that bump-up would no longer occur unless EGLE misses its new 2026 attainment date.

While other state or federal programs, such as Regional Haze, or the Good Neighbor Rule have the potential to bring much needed controls to the sources in the area that lack updated pollution controls, until such controls are included in a finalized SIP or federal implementation plan (FIP), EPA cannot count on them for “permanent, enforceable” reductions.

Ceasing progress to reduce ozone precursors will have the most significant impact on the areas where the greatest proportions of people of color live. The NOx and VOC emissions of Wayne County vastly exceed other those in other parts of the nonattainment area.³⁸

III. EPA Must Consider the Environmental Justice Implications of its Action and Meaningfully Engage Impacted Communities

Whether EPA defines an environmental justice community with reference to race, income, or other socioeconomic or environmental factors, many areas of Detroit and the rest of the ozone nonattainment area would qualify. There are several available screening tools that provide information on environmental risk, socioeconomic and demographic factors, pollution burden, and other indicators of communities that face greater environmental risk and burdens than is typical. Even while the specifics of some of these tools are still being considered, it is clear from these tools that EPA should consider many census tracts in the ozone nonattainment area as places of special concern for environmental justice issues.³⁹ In that light, EPA must take particular care in ensuring its decision does not adversely impact this area.

Executive Order 12898 provides that “[t]o the greatest extent practicable and permitted by law

… each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low- income populations in the United States.”⁴⁰ In addition, EPA’s Final Guidance on Considering Environmental Justice During the Development of Regulatory Analysis and Technical Guidance for Assessing Environmental Justice in Regulatory Analysis provide staff with direction on how to incorporate environmental justice into regulatory decision making.⁴¹ EPA has not followed this guidance in issuing the proposal for redesignation, particularly in the absence of eliciting “meaningful involvement” from within the impacted communities. As EPA’s guidance notes, “[t]o provide meaningful involvement opportunities that are consistent with the Agency’s definition of EJ, the rule-writers will likely need to go beyond the minimum requirements of standard notice and comment procedures and engage minority populations, low-income populations, tribes, and indigenous peoples early in the process.”⁴² Neither EGLE nor EPA appears to have affirmatively reached out to such populations before making this proposal.

EPA must also consider Title VI of the Civil Rights Act in evaluating the disproportionate consequences of prematurely approving EGLE’s request for redesignation to attainment given the disproportionate asthma burdens in the area. Under EPA’s Title VI implementing regulations, EGLE is prohibited from using “criteria or methods of administering its program which have the effect of subjecting individuals to discrimination because of their race, color, [or] national origin.”⁴³ EPA’s Title VI implementing regulations include prohibitions against both intentional and unintentional discrimination by EGLE and other EPA funded agencies.⁴⁴ Unintentional discrimination includes those actions that have a disproportionate adverse effect on individuals of a certain race, color, or national origin. Despite not being formalized in writing, a neutral policy or decision understood as a “standard operating procedure,” a failure to act, or a failure to proactively adopt an important policy can also constitute a violation of Title VI. Unintentional discrimination likewise can include the adverse effects of “cumulative impacts of pollution from a wide range of sources” that disproportionately affect individuals of a certain race, color, or national origin.⁴⁵

Given the links between ozone pollution and asthma as well as the racial disparities regarding asthma burdens in Michigan, there is a significant risk of EPA’s decision violating Title VI’s prohibition against administering programs in a manner that has the effect of subjecting individuals to discrimination on the basis of race, color, or national origin. It’s unclear how, if at all, EGLE or EPA accounted for Title VI requirements and ensured compliance in regards to this proposal.

IV. EPA Has Not Demonstrated that the Air Quality Improvements in the Nonattainment Area Are Due to Permanent and Enforceable Emission Reductions

EPA’s finding that Michigan has demonstrate that the “improvement in air quality is due to permanent and enforceable reductions in emissions,” 42 U.S.C. § 7407(d)(3)(E)(iii), is flawed and unsupported for the reasons discussed below.

A. EPA did not fully consider whether meteorological conditions were the cause of lower ozone concentrations

As noted by EPA, Michigan provided two analyses to demonstrate that the decrease in ozone concentrations was not due to unusually favorable meteorology.

First, EGLE conducted an analysis comparing 22 years of data collected at three monitors in the Detroit area with temperature data (“EGLE Analysis”). Specifically, the EGLE Analysis consisted of the following:⁴⁶

• Comparison of the maximum 8-hour ozone concentration at each monitor to the number of days where the maximum temperature was greater than or equal to 80 degrees Fahrenheit for the years 2000 to 2021;
• Examination of the relationship between average summer temperatures and the fourth- highest 8-hour ozone concentrations for the years 2000 to 2021;
• Number of days within an 8-hour average greater than 70 ppb compared to the number of days where the maximum temperature was greater than 80 degrees Fahrenheit for the years 2000 to 2021.

Second, EGLE provided an analysis performed by the Lake Michigan Air Directors Consortium (“LADCO Analysis”). This consisted of a classification and regression tree (CART) analysis that was conducted from 2005 through 2019. This analysis considered ozone data for five monitors in the metro-Detroit area and a number of associated meteorological variables. It concluded that the downward trend in ozone concentrations from 2005 to 2019 was due to improved air quality and not unusually favorable meteorology.⁴⁷

In summarizing the two analyses, EPA noted that ozone concentrations have decreased substantially over the past two decades, and that these decreases are due to reductions in precursors and not unusually favorable meteorological conditions. Regarding the EGLE analysis, EPA notes that ozone concentrations have gone down as temperatures have increased.⁴⁸ EPA goes on to conclude that the reductions in ozone concentrations in the Southeast Michigan area are due to “reductions in ozone concentrations in the area, and not unusually favorable summer temperatures.”⁴⁹ Regarding the LADCO study, EPA comes to a similar conclusion; that declining ozone concentrations over the for 14 year period examined supports the conclusion that air quality has improved due to downward trends in precursor emissions and not unusually favorable meteorological conditions.⁵⁰

EPA’s reliance on these studies to conclude that the decrease in ozone concentrations during the attainment period in question is not due to unusually favorable meteorology is unfounded. There is no doubt that, in general, ozone precursor emissions have decreased over the past two decades as noted by the studies and that, as a result, ozone concentrations have decreased. Given that the ozone NAAQS has decreased to 0.08 ppm in 1997, to 0.075 ppm in 2008, and to its current level of 0.070 ppm in 2015, such reductions are not only expected but required. While both of these analyses are focused on long-term trends in ozone concentrations in relation to meteorological conditions, what is relevant is whether unusually favorable meteorological conditions in the years 2019, 2020, and 2021 led to lower than normal ozone concentrations.

A variety of weather conditions play important roles in the formation of ozone. According to EPA, ozone is more readily formed on warm, sunny days when the air is stagnant and is more limited when it is cloudy, cool, rainy, or windy.⁵¹ Temperature has long been known to be a key factor in the creation of ozone.⁵² However, a number of other meteorological conditions other than temperature influence ozone formation as well. Stagnant conditions characterized by low wind speeds allow ozone concentrations to build up in a given area.⁵³ High levels of humidity also have a “scavenging effect” on ozone because higher levels of humidity are often associated with greater cloud cover and atmospheric instability, which can inhibit photochemical reactions and decrease ozone concentrations.⁵⁴

Despite the complexity of the relationship between numerous meteorological factors and ozone creation and the razon thin margin of attainment, neither EGLE nor EPA have conducted any analysis of a number of meteorological conditions for the years 2020 and 2021. While the LADCO analysis incorporated a wide range of meteorological factors and their influence on ozone formation, it only did so for years 2005 through 2019. It did not analyze whether meteorological conditions impacted ozone levels in either 2020 or 2021.

There is reason to believe that some of these unanalyzed meteorological factors may have played a significant role in suppressing ozone concentrations at some of the air quality monitors in Southeast Michigan. For example, the 4^th highest daily maximum 8-hour ozone concentration detected by the East 7 Mile monitor in Detroit dropped from 0.073 ppm in 2020 to 0.069 ppm in 2021. 2021 also had relatively higher levels of humidity in Detroit during the ozone season, which may have depressed ozone formation in the area.

In addition to failing to identify the whole range of relevant meteorological conditions for the years 2020 and 2021, both EGLE and EPA have failed to account for how lower than average temperatures and fewer days above 80 degrees Farenheit have impacted ozone concentrations at different monitors throughout Southeast Michigan. As noted above, both EGLE and the EPA emphasize the long-term trend of decreasing ozone concentrations along with increasing temperatures. Such a trend is simply not relevant for this attainment determination, which is based on ozone concentrations for the past three years. Instead, the relevant analysis is whether temperature and other meteorological conditions were the cause of lower ozone concentrations in any of the given three years, or whether the lower ozone concentrations were caused by permanent and enforceable reductions in the emissions of ozone precursors.

While the EGLE Analysis notes that there is a long-term trend of increasing temperatures, what it fails to note is that the average temperature and the number of days with a temperature greater than 80 degrees Farenheit measured at the East 7 Mile, New Haven, and Port Huron monitors appear to be below average for the entirety of the 2019 through 2021 period.⁵⁷ In particular, 2019 appears to have been a year with exceptionally few high temperature days. In that year, there were only 76 days with a maximum temperature equal to or above 80 degrees Farenheit, which is the lowest total since 2009.⁵⁸ Also in 2019, the 4^th highest daily maximum 8-hour ozone concentrations were relatively low throughout the Southeast Michigan region.⁵⁹

In summary, the EGLE Analysis and the LADCO Analysis do not provide sufficient justification for EPA to determine that the improvement in air quality was due to permanent and enforceable emissions reductions rather than unusually favorable meteorology. While both of these analyses support general, long-term conclusions regarding the downward trends of ozone concentrations due to downward trends in precursor emissions that have occurred over several decades, such long-term trends are not relevant for this attainment determination. Instead, what is relevant for this attainment determination is whether any reductions in ozone concentrations in at any of the eight ozone monitors in the Southeast Michigan area in 2019, 2020, or 2021 were due to unusually favorable meteorological conditions as opposed to permanent and enforceable emissions reductions. In particular, 2019 appears to have been a year with relatively few high temperature days which may have temporarily suppressed ozone concentrations in that year and as a result the 3-year ozone design value for 2019-2021. However, this issue is not addressed by either EGLE or EPA. Additionally, neither EGLE nor the EPA considered any meteorological conditions other than temperature and their potential impact on ozone concentrations in either 2020 or 2021. Based on these gaps, EPA cannot determine reductions in ozone were caused by permanent and enforceable emissions reductions rather than unusually favorable meteorological conditions.

B. EPA Should Not Accept Michigan’s Incomplete Analysis of the Impacts of the Economic Downturn on Ozone Concentrations in the Detroit Area

EPA relies on Michigan’s analysis of point source emissions, vehicle miles traveled (VMT), and ozone concentrations in the Detroit area in 2019 and 2020 to discount the possibility that the economic impacts of the COVID-19 pandemic contributed to the lower design values for ozone for 2019-2021. While this analysis shows that ozone concentrations did not drop in the Detroit area in 2020 despite a decline in VMT and local point source emissions, there is no basis for the logical leap that lower levels in 2019 and 2021 were therefore the result of permanent and enforceable emission reductions.

The pandemic plunged the United States into a severe temporary recession. Unemployment peaked at 14.7% in April 2020⁶⁰, and in the second quarter of 2020 there was a decline in gross domestic product (31.4%) which was the highest single quarterly decline in real GDP recorded by the Bureau of Economic Analysis since 1947.⁶¹ To combat the spread of coronavirus, many states went into lockdown and restrictions were put into place which resulted in a decrease in economic activity. As EPA is aware, coal power plant emissions reached an all-time low during 2020, and only gradually increased through 2021, largely because of the pandemic recession.⁶² Coal consumption for electric power in Michigan, Indiana, and Illinois declined dramatically between 2019 and 2020 and was still down relative to 2019 in 2021.⁶³ Automobile travel similarly plunged during 2020 and did not return to pre-pandemic levels until June 2021, half- way through ozone season.⁶⁴

NOx and VOC emissions correspondingly dropped dramatically during this time. For example, point source VOC emissions from the seven nonattainment counties dropped from near 10,000 tons in 2019 to below 8,000 tons in 2020, while point source NOx emissions from the nonattainment area dropped from more than 30,000 tons in 2019 to under 25,000 tons in 2020.⁶⁵ While Michigan did not include ozone precursor emissions data for 2021 in its request for redesignation, it would stand to reason that there remained a decline reflecting lower coal consumption and fewer vehicle miles traveled at least through the first part of ozone season.

Michigan noted that point source emissions and VMT decreased in the Detroit area between 2019 and 2020, but that these decreases were not associated with a corresponding decline in ozone values from 2019 to 2020. Michigan and EPA conclude from this analysis that “economic conditions associated with the COVID-19 pandemic were not correlated with the improved air quality” and that “Michigan’s demonstration that the improved air quality is due to permanent and enforceable emission reductions.”⁶⁶ To the contrary, the analysis only calls into question what conditions were in fact driving the ozone levels in the nonattainment area in 2020. Instead of trying to understand the contributing factors, EPA simply assumes that the economic impacts of the pandemic had no impact on ozone concentrations. It is entirely possible that the area’s ozone levels would have been even higher had power sector and transportation emissions not been limited, but EPA does not consider this as a possibility.

EPA’s omission of this alternative explanation is especially puzzling given its (unsurprising) finding based on the LADCO study, discussed just prior in EPA’s notice and in section IV.A. above, that ozone precursor emissions correlated well with ozone concentrations. The logical conclusion from this finding would be that if coal-fired power plant production and VMT had been at normal levels during 2020, meteorological conditions in 2020 would have led to even higher ozone concentrations than monitored during the recession. Because the 2020 readings for six out of eight monitors were at or above 0.070 ppb, it seems very likely that the same meteorological conditions combined with normal emissions of precursors would have pushed the 2019-2021 design values to nonattainment. In short, EPA has not ruled out the 2020 recession as the cause for the area achieving attainment during this time period.

Another gap in Michigan and EPA’s analysis is that it does not consider that the economy did not fully recover in 2021,⁶⁷ such that the lower ozone levels in 2021 could also have been influenced by lower power sector emissions and fewer vehicle miles traveled that year, particularly in the early months of the 2021 ozone season. Analysis from the International Energy Association found that demand for oil, coal, and gas in the United States were all down in 2021 relative to 2019.⁶⁸

By relying on faulty and incomplete analysis on this central issue, EPA “entirely failed to consider an important aspect of the problem” before it.⁶⁹

C. EPA Fails to Demonstrate that Emissions Reductions Resulting from the Federal Good-Neighbor Rules or Mobile Source Standards Led to Ozone Attainment in 2019-2021

EPA accepts Michigan’s reliance on a series of federal rules on interstate transport of pollution, and vehicle and other engine standards as a key element of the demonstration that permanent and enforceable emissions reductions led to ozone attainment in 2019-2021 and will continue to ensure the area achieves attainment for 10 years following redesignation. There are several reasons why EPA and Michigan’s reliance on these rules is illogical, incomplete, and fails to satisfy the requirements for redesignation. 42 U.S.C. § 7505a(a); 42 U.S.C. § 7407(d)(3)(E)(iv).

First, most of the referenced rules were implemented and would have had emissions impacts prior to 2019, and even prior to 2018. If the reductions resulting from those rules implemented prior to 2018 correlated with lower ozone concentrations in the Detroit area, it is unclear why ozone concentrations would increase in 2020, or why most of the monitors in the area would be in nonattainment based on design values for the years 2018-2020.

Ozone concentrations increasing from 2019 to 2020 undermine EPA’s finding that the reduced ambient concentrations in 2019-2021 are in fact attributable to regulations going into effect from 2004-2017.

Second, EPA relies upon the reductions in pollution projected from the CSAPR Update across all of the eastern United States (citing a reduction of 17,000 tons NOx beginning in 2021),⁷⁰ but this would include even those reductions downwind of the nonattainment area, and EPA does not determine whether reductions in emissions specifically causing nonattainment in Southeast Michigan will occur. Indeed, the CSAPR Update does not ensure that any particular plant will reduce its NOx limits to RACT levels or otherwise, as it is a cap-and-trade program. Thus, it is possible that, by purchasing allowances, plants contributing to the Detroit area’s ozone problem may continue to pollute at the same levels.

V. EPA Improperly Finalized Michigan’s Ozone Infrastructure SIP Without Responding to Comments and Should Not Rely on the SIP for Purposes of Redesignation Unless and Until EPA Reissues its Approval.

To redesignate a nonattainment area to attainment, EPA must find that the state containing the area “has met all requirements applicable to the area for the purposes of redesignation under section 110 and part D of the [Act].”⁷¹ For an ozone nonattainment area, this includes having an approved “ozone infrastructure SIP” pursuant to section 110(a)(2) of the Act. In its proposed rule, EPA relies on its September 2021 partial approval of infrastructure SIP requirements for the 2015 Ozone NAAQS.⁷² However, this partial approval was entered in error and is currently being revisited. Specifically, due to an oversight, EPA failed to review and respond to Sierra Club’s timely comment on the proposal prior to issuing the final rule.⁷³ Sierra Club’s comment pointed out that Michigan’s ability to enforce emission limits specific to a particular facility were in question following a state court ruling on the state’s attempt to place sulfur dioxide limits on

U.S. Steel (a facility that is, incidentally, located in the ozone nonattainment area).⁷⁴

EPA has indicated it is currently in the process of issuing a new final rule that includes a response to Sierra Club’s comment.⁷⁵ Unless and until EPA reissues an approval that properly considers and responds to this comment, EPA should not consider Michigan to have an approved ozone infrastructure SIP for the purposes of redesignation. Sierra Club’s comment went to the heart of the approvability of the SIP, and therefore should be considered before EPA finalizes its decision on the infrastructure SIP.

VI. Michigan’s Maintenance Plan is Insufficient.

Michigan’s Triggers and Contingency Measures are Too Lenient

As required by the Clean Air Act, Michigan has provided triggers that will be used to determine when contingency measures should be implemented as well as a list of potential contingency measures.

The triggers provided by EGLE are too lenient. The maintenance plan provides a warning level response trigger of an annual 4^th high daily maximum 8-hour average of 74 ppb or more in a single ozone season. It also provides an action level response trigger of a 4^th high daily maximum 8-hour average monitoring value averaged over two years of 71 ppb or more.

Both the warning level response threshold and the action level response threshold are essentially meaningless given the thin margin of attainment. A 4^th high daily maximum 8-hour average below the warning level response trigger of 74 ppb in 2022 would trigger a nonattainment designation at five of the eight ozone monitors in Southeast Michigan. Even a 4^th high daily maximum 8-hour average monitoring value of 71 ppb in a single ozone season would trigger a nonattainment designation at four of the eight ozone monitors in Southeast Michigan. In short, it’s highly likely that a nonattainment designation will be required before any warning level or action level response is implemented.

In addition to the thresholds for both the action level and the warning level being too low, the timeline allowed from the implementation of a contingency measures after such exceedances have occurred are far too long. According to the maintenance plan, Michigan would have 18 months to implement necessary controls in response to a warning level or action level exceedance. By that time, any nonattainment designation would be finalized.

Lastly, the maintenance plan gives Michigan excessive discretion to determine whether control measures options are necessary and if so, which ones. It states that “Michigan may select one of the following control measures, if necessary, to address an upward trend in air quality.”⁷⁶ This language does not commit Michigan to implementing any control measures and lacks specificity as to which measures should be implemented in response to different levels of increasing ozone pollution.

Rather than hastily approving this redesignation request with an ineffectual maintenance plan, EPA should at least wait until the end of the 2022 ozone season to act upon this redesignation request. The maintenance plan should also address the very real possibility of 3-year ozone design values rising above the NAAQS in the near future and should commit Michigan to an expedited nonattainment designation process if that occurs.

B. EPA and Michigan’s reliance on the 2016v2 modeling data is suspect and obscures actions that may be necessary to assure attainment

To set the level of statewide emissions that will be sufficient to maintain attainment, Michigan selected 2019 to represent attainment level emissions, and relied on the EPA 2016v2 modeling platform to derive emission levels for that year. Specifically, to derive point, nonpoint, and nonroad inventories for 2019, EGLE interpolated between 2016 and 2023 data from the 2016v2 modeling platform.⁷⁷ EPA notes, “For both NOX and VOC, EGLE’s 2019 inventory shows emissions levels that are lower than the levels of actual emissions derived by EPA from [its Emissions Inventory System].”⁷⁸ EPA concludes from this that Michigan is thus being more cautious than necessary in setting levels of emissions that are sufficient to attain the standard.

However, EPA fails to also draw the logical conclusion that the 2016v2 model may be underpredicting emissions, and that this may also call into question Michigan’s projections of attainment level emissions through 2032 based on the model.

EPA does not discuss the details of the 2016v2 model, but points the public to the Technical Support Document (TSD) accompanying the model.⁷⁹ That TSD in turn explains the complex process by which the point source emissions inventories used in the model are derived. ⁸⁰ It would be difficult if not impossible for an outside expert, let alone a layperson, to scrutinize this process and the inner workings of the model. Relying on what is essentially a black box for this essential element of Michigan’s attainment plan makes it difficult for the public to evaluate the legitimacy of these estimates. However, it is worth noting that the model’s predictions of reductions in ozone concentrations appear overly optimistic based on historic trends. For example, the model predicts that ozone concentrations at the Detroit area monitors at issue in this rulemaking will decrease by approximately 7-8 parts per billion (ppb) between 2016 and 2023.

As many of the monitors’ average readings have not dropped significantly between 2016 and 2021, most of this reduction would have to come in only the next two years for the modeling to be correct. For example, the East 7 Mile monitor’s 4^th highest reading would have to drop from 69 ppb in 2021 to 60.2 ppb by 2023, its lowest 4^th highest reading in the last 15 years by more than 6 ppb, and nearly 8 ppb lower than its latest three-year average, to match the model’s predictions.⁸¹ These unrealistic predictions render suspect Michigan’s heavy reliance on the 2016v2 model for its attainment projections.

EPA should explain more specifically how it can assure what would be drastic and historic improvements in air quality predicted by the 2016v2 model. Although there are a number of coal plants expected to retire in Michigan prior to 2035, EPA should specifically identify whether those retirements will achieve the necessary air quality improvements to maintain emission levels below 2019 levels. If EPA and Michigan are relying on these plant retirements or other specific emission reductions, the maintenance plan should ensure these retirements and other changes are legally enforceable.

By simply relying on the model’s predictions without further detail, EPA obscures the enforceable measures that would need to be included in the maintenance plan. Further, in the event of a change in Administration, it is possible that many of the regulatory actions assumed in the 2016v2 modeling would not ultimately be implemented and emissions could rise. This possibility makes it even more imperative that Michigan specifically identify and include in its maintenance plan the necessary measures to maintain attainment.

C. Michigan does not have sufficient authority to enforce emission control measures to correct future ozone problems

In proposing to approve Michigan’s maintenance plan, EPA relies on Michigan’s commitment “that it has the authority to implement the requested SIP revision . . . includ[ing] the authority to adopt, implement, and enforce any subsequent emission control measures determined to be necessary to correct future ozone attainment problems.”⁸² Unfortunately, Michigan’s authority to do so is in fact in question as described below and discussed in Sierra Club’s comments on the ozone infrastructure SIP referenced above.

A 2017 Michigan Court of Claims opinion found that the state could not single out specific polluters for emissions reductions because it would violate the state’s Administrative Procedures Act.⁸³ There, the Michigan Department of Environmental Quality (MDEQ) (now EGLE) had issued an administrative rule to limit sulfur dioxide (SO2) pollution from United States Steel in an attempt to bring the Detroit sulfur dioxide nonattainment area back into attainment with the 2010 sulfur dioxide NAAQS. “Michigan imposed the emission limits it had concluded were necessary at U.S. Steel to bring the Detroit area into attainment by passing Michigan Administrative Code (MAC) 336.1430 (‘Rule 430’). Michigan submitted Rule 430 to EPA as an enforceable limitation element of its SO2 plan. Subsequently, U.S. Steel challenged the legality of Rule 430 in the Michigan Court of Claims, which invalidated Rule 430 on October 4, 2017.”⁸⁴

The Court of Claims⁸⁵ specifically took issue with MDEQ’s focus on a particular facility, even though MDEQ found that such a focus was necessary to meet its requirements for a SIP that would achieve attainment with the SO2 NAAQS.

Rule 430 makes clear there is one entity, and one entity only to which Rule 430 can conceivably apply: U.S. Steel. As a consequence of being “targeted” by Rule 430, U.S. Steel argues that DEQ's actions have gone beyond that which is permitted of rulemaking under the APA by ignoring the ‘general applicability’ admonishment of [Michigan Code of Laws] 24.207. This Court finds agreement with that argument. . . The Court agrees with U.S. Steel that Rule 430 fails the APA's “general applicability” requirement for rulemaking. The targeted action taken by DEQ in this case sounds more in the nature of that which is ordinarily only allowed after a contested case hearing or in the permit process.

U.S. Steel Corp, 2017 WL 5974195 at *3, *4. It thus appears that, contrary to the requirements of 42 U.S.C. §§ 7410(a)(2)(A) and 7410(a)(2)(E)(i) and the requirements for an adequate maintenance plan, Michigan is prohibited by a provision of state law (the state’s Administrative Procedures Act) from carrying out an implementation plan that includes enforceable emissions limitations “as may be necessary or appropriate to meet the applicable requirements.”

In its proposed action, EPA does not address the court’s holding or otherwise explain Michigan’s authority to impose enforceable emissions limitations as may be necessary when a particular polluter refuses to limit pollution as needed to bring an area into attainment with the NAAQS. EPA must reexamine whether Michigan has adequate authority to implement its maintenance plan in light of U.S. Steel Corp. and disapprove the plan if it does not.

D. Michigan has failed to properly implement its PSD NSR Program

The Clean Air Act requires that in order for the EPA to approve a request to redesignate a nonattainment area to an attainment area, it must determine that the state has met all applicable State Implementation Plan requirements described in section 110.⁸⁶ This includes a requirement to include provisions for the proper implementation of Part C, including the PSD NSR program.

EGLE has failed to properly implement the preconstruction monitoring requirement in regards to ozone for numerous permit-to-install applications subject to PSD NSR. Section 165 of the Clean Air Act establishes preconstruction requirements for new sources and modified sources that are subject to PSD NSR. One such requirement calls for the submission of “continuous air quality monitoring data gathered for purposes of determining whether emissions from such facility will exceed the maximum allowable increases or the maximum allowable concentration permitted under this part.”⁸⁷ While the EPA has authorized states to establish exemptions from the preconstruction monitoring requirement – commonly referred to as significant monitoring concentrations (SMCs) – EPA has also specified that any net emissions increase of 100 tons per year or more of VOCs or NOx will require an ambient impact analysis, including the gathering of air quality.⁸⁸

While Michigan has adopted this language in its SIP,⁸⁹ it has failed to properly implement it. Specifically, Michigan has failed to require ozone preconstruction monitoring in the context of PSD NSR even when there will be a net emissions increase of 100 tons per year or more of either volatile organic compounds or nitrogen oxides. When challenged on this matter in Sierra Club v. EGLE, EGLE asserted that it was only required to gather ambient air quality data in the context of PSD NSR if there is both a net emissions increase of 100 tons per year or more of either volatile organic compounds or nitrogen oxides and there is a predicted ozone impact above the Significant Impact Level of 1.0 ppb established by EPA guidance.⁹⁰ In an unpublished opinion, the Court of Appeals disagreed with EGLE.⁹¹ However, we remain concerned that EGLE will continue to improperly exempt permit to install applicants from the requirement to gather ozone ambient air quality data as a part of PSD NSR in violation of EPA regulations and its own SIP. In addition to being unlawful, EGLE’s approach will make it harder for the agency and for citizens to ensure that new sources of ozone precursors will not threaten attainment of the NAAQS. As such, we believe it is improper for the EPA to conclude that Michigan has met all applicable requirements of section 110.

Additionally, we note that in Sierra Club v. EPA, the D.C. Circuit Court of appeals called the legal validity of SMCs into question. In that case, the court vacated the SMCs for particulate matter on the basis that section 165(e)(2) represents an “extraordinarily rigid” mandate which does not provide EPA with the power to grant exemptions.⁹² As such, we believe the SMCs established for ozone in 40 CFR 51.166(i)(5)(i)(f) and 40 CFR 52.21(i)(5)(i)(f) are unlawful and must be vacated.

VII. Conclusion

EPA simply does not have enough evidence to reasonably conclude that the 0.070 ppm design value for 2019-2021 ozone levels in the Detroit area was the result of permanent and enforceable emission reductions, as opposed to favorable meteorological conditions or the economic downturn during that time period. Moreover, Michigan’s proposed maintenance plan is entirely too weak. To protect public health in the seven-county area affected, and particularly in the environmental justice communities in and around Detroit, EPA should disapprove both Michigan’s request for redesignation and its request to incorporate the proposed maintenance plan into its SIP. Thank you for considering these comments.

Respectfully submitted,

Elena Saxonhouse
Managing Attorney
Sierra Club Environmental Law Program
2101 Webster Street, Suite 1300
Oakland, CA 94612
(415) 265-2943

Nick Leonard
Executive Director
Great Lakes Environmental Law Center
4444 Second Avenue
Detroit, MI 48216
(313) 782-3372

On behalf of:

Sierra Club
Great Lakes Environmental Law Center
Asthma & Allergy Foundation of America, Michigan Chapter
Michigan Environmental Justice Coalition
Detroit Green Skills Alliance
MI Air MI Health
Ecology Center
Citizens’ Climate Lobby, Detroit Metro North Chapter
Great Lakes Renewable Energy Association
McLouth Waterfront Alliance
Moms Clean Air Force, Michigan Chapter
Detroit Greenways Coalition
Clean Water Action
Michigan United
League of Michigan Bicyclists
Michigan Clinicians for Climate Action
Natural Resources Defense Council
Michigan League of Conservation Voters
Detroit People’s Platform
Detroit Hamtramck Coalition for Advancing Healthy Environments
Environmental Law and Policy Center

¹ Air Plan Approval; Michigan; Redesignation of the Detroit, MI Area to Attainment of the 2015 Ozone Standards¸87 Fed. Reg. 14,210 (March 14, 2022).

² 87 Fed. Reg. at 14,212.

³ National Ambient Air Quality Standards for Ozone, 80 Fed Reg. 65,292 (October 26, 2015).

⁴Additional Air Quality Designations for the 2015 Ozone National Ambient Air Quality Standards, 83 Fed. Reg. 25,776, 25, 779 (June 4, 2018) (noting court-ordered April 30, 2018 deadline); see also EPA, Additional Designations for the 2015 Ozone Standards, https://www.epa.gov/ozone- designations/additional-designations-2015-ozone-standards.

⁵ 83 Fed. Reg. at 25,813.

⁶ Id. at 25,776. The delay in publishing allowed Michigan to permit a new gas plant in St. Clair County, one of the counties in the nonattainment area, without applying nonattainment New Source Review, even though EPA had already identified the county for nonattainment. The plant has the potential to emit 238 tons of NOx annually.

⁷ 87 Fed. Reg. at 14,211 (citing 40 CFR 50.19 and appendix U to 40 CFR part 50).

⁸ J. Calcagni, EPA Dir. Of Air Quality Mgt. Div. Procedures for Processing Request to Redesignate Areas to Attainment, (Sept. 4, 1992), https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/19920904_calcagni_process_redesignation_gui dance.pdf.

⁹ Id. at 14,212, n. 3.

¹⁰ Id. EPA does not consider Moderate area requirements applicable requirements for purposes of its redesignation of the area to attainment because at the time Michigan submitted its request (January 2022), EPA had not yet determined that the area failed to attain, and the due dates for SIP submissions related to the failure to attain would fall even further in the future. See id.

¹¹ U.S. EPA, Ground Level Ozone, www.epa.gov/groundlevelozone/.

¹² EGLE, Annual Ambient Air Monitoring Network Review (July 1, 2021), attached as Exhibit 1, https://www.michigan.gov/documents/egle/ambient-monitoring-network-review-2021-07- 01_729037_7.pdf, at 25.

¹³ S.B. Khatri, F.C. Holguin, et al, Association of ambient ozone exposure with airway inflammation and allergy in adults with asthma, The Journal of Asthma: Official Journal of the Association for the Care of Asthma, 46(8), 777–785 (2009).

¹⁴ See, e.g., U.S. EPA, National Ambient Air Quality Standards for Ozone; Final Rule, 73 Fed. Reg. 16,436, 16,440 (Mar. 27, 2008); see also U.S. EPA, Integrated Science Assessment for Ozone and Related Photochemical Oxidants, EPA 600/R-10/076F (Feb. 2013), www.epa.gov/ncea/isa/ozone.htm (cataloguing scientific studies and discussing in depth the wide range of adverse health effects associated with short- and long-term ozone exposure); U.S. EPA, Policy Assessment for the Review of the Ozone National Ambient Air Quality Standards, EPA-452/R-14-006 (Aug. 2014), at 4-57.

¹⁵ Exec. Order No. 13045, Protection of Children from Environmental Health Risks and Safety Risks, 62 Fed. Reg. 19,885 (Apr. 21, 1997).

¹⁶ P. Kunyangna & B. Anderson, Detroit: The current status of asthma burden, 2021 update. Michigan Department of Health & Human Services (2021), at 2, https://www.michigan.gov/documents/mdhhs/Detroit-AsthmaBurden-2021_Update_748381_7.pdf.

¹⁷ Id.

¹⁸ C. Thompson, Detroit's longtime problem with asthma is getting much worse. Why that's concerning. The Detroit News, April 5, 2022, https://www.detroitnews.com/story/news/local/detroit- city/2022/04/05/asthma-detroit-worse-health-services-report/7059301001/.

¹⁹ Id.

²⁰ E.A. Wasilevich, S. Lyon-Callo, et al., Bureau of Epidemiology, Michigan Department of Community Health, Detroit – The Epicenter of Asthma Burden, Epidemiology of Asthma in Michigan, 2008, https://www.michigan.gov/documents/mdch/14_Ch12_Detroit_Epicenter_of_Asthma_276687_7.pdf

²¹ See Kunyanga & Anderson, supra note 16.

²² EPA, Environmental Justice, https://www.epa.gov/environmentaljustice.

²³ Michigan Department of Human & Health Services, MICHIGAN ASTHMA ATLAS: Prevalence, Hospitalization, & Mortality by Counties & Regions among Michigan Adults & Children. (February 2019), https://www.michigan.gov/documents/mdhhs/MI_Asthma_Atlas_2019_653258_7.pdf (attached hereto as Exhibit 2).

²⁴ Id.

²⁵ Id.

²⁶ 87 Fed. Reg. at 14,211.

²⁷ Id.

²⁸ 42 USC 7407(d)(3)(E)(iii).

²⁹ 87 Fed. Reg. at 1428.

³⁰ EGLE, 4^th Highest Maximum 8-Hour Ozone Concentration Per Year and 3-Year Average (updated Mar. 15, 2022) (attached hereto as Exhibit 3)

³¹ EGLE, Annual Ambient Air Monitoring Network Review (July 1, 2021), at 26; see also id. at 27 (Figure 4).

³² EGLE, Ozone Nonattainment, https://www.michigan.gov/egle/about/organization/Air-Quality/state- implementation-plan/ozone-nonattainment (describing ongoing planning); EGLE, Ozone Rule Planning Response, https://www.michigan.gov/egle/- /media/Project/Websites/egle/Documents/Programs/AQD/State-Implementation-Plan/non- attainment/Ozone/ozone-rule-tracking.pdf (listing potential new rules to reduce ozone precursors); LADCO, LADCO_Task2_control_measures_screening_deliverable_NAA_v3.xlsx (master list of point source NOx controls for the LADCO region); LADCO, Final Report: Control of Ozone Precursor Emissions in the Great Lakes Region, https://www.ladco.org/wp-content/uploads/Projects/Emissions- Controls/Ramboll-NOx-VOC-2020/FinalReport_LADCO_Ozone_Emissions_Control_29Jan2021.pdf.

³³ National Emissions Inventory 2014 Data, https://www.epa.gov/air-emissions-inventories/2014- national-emissions-inventory-nei-data.

³⁴ Joe Kordzi, A Preliminary Review of the Michigan Regional Haze State Implementation Plan (June 2021) (attached hereto as Exhibit 4) at 19.

³⁵ Id.

³⁶ https://www.epa.gov/air-emissions-inventories/2014-national-emissions-inventory-nei-data.

³⁷ See, e.g., EGLE, Comprehensive 2015 Ozone Planning Roadmap, https://www.michigan.gov/egle/- /media/Project/Websites/egle/Documents/Programs/AQD/State-Implementation-Plan/non- attainment/Ozone/ozone-attainment-2020-03-11-comprehensive-planning.pdf (setting deadline for selecting control strategies in 2021).

³⁸ 87 Fed. Reg. at 14,222 (Tables 6 and 7).

³⁹ See, e.g., MI EJ Screen (Draft), https://egle.maps.arcgis.com/apps/webappviewer/index.html?id=b100011f137945138a52a35ec6d8676f; CEQ Climate and Economic Justice Screening Tool (Beta), https://screeningtool.geoplatform.gov/en/#9.51/42.3536/-83.1688; EJ Screen, https://ejscreen.epa.gov/mapper/. (Maps and background information collected in Exhibit 5 hereto).

⁴⁰ Exec. Order No. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 Fed. Reg. 7,629 (Feb. 11, 1994); see also Executive Order 14008, Tackling the Climate Crisis at Home and Abroad (Jan. 27, 2021); Exec. Order No. 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (Jan. 20, 2021).

⁴¹ U.S. EPA, Guidance on Considering Environmental Justice During the Development of Regulatory Actions (May 2015), https://www.epa.gov/environmentaljustice/guidance-considering-environmental- justice-during-development-action (hereinafter “2015 Guidance”); U.S. EPA, Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (June 2016), https://www.epa.gov/sites/default/files/2016-06/documents/ejtg_5_6_16_v5.1.pdf. http://yosemite.epa.gov/ee/epa/eed.nsf/webpages/ejtg.html/$file/ejtg_draft.pdf.

⁴² 2015 Guidance at 10.

⁴³ 40 CFR § 7.35(b).

⁴⁴ 40 CFR § 7.35.

⁴⁵ Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs, 65 Fed. Reg. 39,650 (June 27, 2000). Although the Draft Guidance is specifically for permitting activities, Title VI’s principles also apply to EGLE’s implementation of its duties to plan for and achieve attainment of the NAAQS.

⁴⁶ 87 Fed. Reg. at 14,217.

⁴⁷ Id.

⁴⁸ Id.

⁴⁹ Id.

⁵⁰ Id.

⁵¹ U.S. EPA, Trends in Ozone Adjusted for Weather Conditions, https://www.epa.gov/air-trends/trends- ozone-adjusted-weather- conditions#:~:text=Variations%20in%20weather%20conditions%20play,cool%2C%20rainy%2C%20or% 20windy .

⁵² Noelia Otero et al., Temperature dependence of tropospheric ozone under NOx reductions over Germany, May 15, 2021, available at https://www.sciencedirect.com/science/article/pii/S1352231021001527#bib40 (attached hereto as Exhibit 6).

⁵³ Id.

⁵⁴ Id.

⁵⁵ Weather Spark, Summer 2020 Weather History in Detroit, Michigan, https://weatherspark.com/h/s/16530/2020/1/Historical-Weather-Summer-2020-in-Detroit-Michigan- United-States#Figures-Humidity.

⁵⁶ Weather Spark, Summer 2021 Weather History in Detroit, Michigan, available at https://weatherspark.com/h/s/16530/2021/1/Historical-Weather-Summer-2021-in-Detroit-Michigan- United-States#Figures-Humidity.

⁵⁷ EGLE, Request for Redesignation to Attainment and Submittal to the State Implementation Plan (SIP) for the Clean Air Act (CAA) Section 175A Maintenance Plan for the Southeast Michigan 2015 Ozone Nonattainment Area, Jan. 3, 2022 (hereinafter “EGLE Request for Redesignation”), at 11-14.

⁵⁸ NOAA Online Weather Data, Monthly Number of Days Max Temperature >= 80 for Detroit Area, MI (attached hereto as Exhibit 7)

⁵⁹ 87 Fed. Reg. at 14,211.

⁶⁰ See Congressional Research Service, Covid-19 and the U.S. Economy (May 11, 2021), https://crsreports.congress.gov/product/pdf/R/R46606 (attached hereto as Exhibit 8).

⁶¹ Id. at 2.

⁶² See, e.g., COVID lockdown causes record drop in carbon emissions for 2020, Stanford Earth Matters Magazine, Dec. 10, 2020, https://earth.stanford.edu/news/covid-lockdown-causes-record-drop-carbon- emissions-2020#gs.yon9py.

⁶³ See Energy Information Administration, Coal Data Browser (Data Set: Total Consumption, Electric Power), https://www.eia.gov/coal/data/browser/.

⁶⁴ U.S. Federal Highway Administration, Vehicle Miles Traveled [TRFVOLUSM227NFWA], retrieved from FRED, Federal Reserve Bank of St. Louis; https://fred.stlouisfed.org/series/TRFVOLUSM227NFWA, April 24, 2022 (based on nationwide data) (attached hereto as Exhibit 9).

⁶⁵ EGLE Request for Redesignation at 18-19 (Charts 5 and 6).

⁶⁶87 Fed. Reg. at 14217.

⁶⁷Congressional Research Service supra note 60 at 2 (“[M]any economic indicators show that economic activity has still not fully recovered [as of May 2021].”)

⁶⁸ IEA (2021), Global Energy Review 2021, IEA, Paris https://www.iea.org/reports/global-energy-review- 2021 (relevant chart attached hereto as Exhibit 10).

⁶⁹ National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007).

⁷⁰ 87 Fed. Reg. at 14,215.

⁷¹ 87 Fed. Reg. at 14, 211.

⁷² 86 Fed. Reg. 53,550 (Sept. 28, 2021).

⁷³ Personal Communication with EPA Region 5, October 1, 2021; see also Regulations.gov Submission Confirmation, Aug. 2, 2021 (attached hereto as Exhibit 11).

⁷⁴ Sierra Club Comments on Proposed Partial Approval and Partial Disapproval of Michigan Infrastructure SIP Requirements for the 2015 Ozone NAAQS, Docket No. EPA–R05– OAR–2019–0215 (attached hereto as Exhibit 12).

⁷⁵ Personal Communication with EPA Region 5, April 21, 2022.

⁷⁶ EGLE, Request for Redesignation to Attainment for the 2015 Ozone National Ambient Air Quality Standard and Revision to Michigan’s State Implementation Plan and Ozone Maintenance Plan for Southeast Michigan Ozone Nonattainment Area, at 29.

⁷⁷ 87 Fed. Reg. at 14,216.

⁷⁸ Id. at 14,216 n.7.

⁷⁹ Id. at 14,216 n. 6.

⁸⁰ EPA, Technical Support Document (TSD): Preparation of Emissions Inventories for the 2016v2 North American Emissions Modeling Platform, at 162-217, available at https://www.epa.gov/airemissions- modeling/2016-version-2-technicalsupport-document.

⁸¹ Compare EPA, 2016v2 Design Value and Contribution Data File (2016v2_DVs_state_contributions.xlsx), https://www.epa.gov/air-emissions-modeling/2016v2-platform (attached hereto as Exhibit 13), with EGLE, 4^th Highest Maximum 8-Hour Ozone Concentration Per Year and 3-Year Average (updated Mar. 15, 2022) (Exhibit 3).

⁸² 87 Fed. Reg. at 14,219.

⁸³ United States Steel Corp. v. Dept. of Environmental Quality, No. 16–000202–MZ, 2017 WL 5974195 (Mich. Ct. Cl. Oct. 4, 2017).

⁸⁴ Air Plan Approval; Michigan; Partial Approval and Partial Disapproval of the Detroit SO2 Nonattainment Area Plan, 85 Fed. Reg. 58,315, 58,317 (Sept. 18, 2020).

⁸⁵ The Court of Claims is a court of statewide, limited jurisdiction to hear and determine civil actions filed against the State of Michigan and its agencies. See Michigan Court of Claims, https://courts.michigan.gov/courts/coc/Pages/default.aspx.

⁸⁶ 42 USC 7407(d)(3)(E)(v).

⁸⁷ 42 USC 7475(e)(2).

⁸⁸ 40 CFR 51.166(d)(5).

⁸⁹ Mich. Admin. Code R. 336.2809(5)(a)(v).

⁹⁰ Sierra Club v. EGLE, 2021 Mich. App. LEXIS 131 (2021) (attached hereto as Exhibit 14)

⁹¹ Id.

⁹² Sierra Club v. EPA, 403 U.S. App. D.C. 318, 328; 705 F.3d 458, 467 (2013) (attached hereto as Exhibit 15).