Proposed Rule2023-13148
Air Plan Disapproval; Delaware; Removal of Excess Emissions Provisions
Primary source
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Published
June 21, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to disapprove certain portions of a state implementation plan (SIP) revision submitted by the State of Delaware, through the Delaware Department of Natural Resources and Environmental Control (DNREC), on November 22, 2016. The revision was submitted by Delaware in response to a national finding of substantial inadequacy and SIP call published on June 12, 2015, which included certain provisions in the Delaware SIP related to excess emissions during startup, shutdown, and malfunction (SSM) events. EPA is proposing disapproval of certain portions of the SIP revision and proposing to determine that such SIP revision does not correct the remaining deficiencies in Delaware's SIP identified in the June 12, 2015, SIP call in accordance with the requirements for SIP provisions under the Clean Air Act (CAA or Act). This action addresses the remaining deficiencies identified in EPA's June 2015 SIP call that have not yet been addressed by prior EPA actions on Delaware's November 2016 SIP submission.
Full Text
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<title>Federal Register, Volume 88 Issue 118 (Wednesday, June 21, 2023)</title>
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[Federal Register Volume 88, Number 118 (Wednesday, June 21, 2023)]
[Proposed Rules]
[Pages 40136-40142]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-13148]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2023-0206; FRL-11037-01-R3]
Air Plan Disapproval; Delaware; Removal of Excess Emissions
Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
disapprove certain portions of a state implementation plan (SIP)
revision submitted by the State of Delaware, through the Delaware
Department of Natural Resources and Environmental Control (DNREC), on
November 22, 2016. The revision was submitted by Delaware in response
to a national finding of substantial inadequacy and SIP call published
on June 12, 2015, which included certain provisions in the Delaware SIP
related to excess emissions during startup, shutdown, and malfunction
(SSM) events. EPA is proposing disapproval of certain portions of the
SIP revision and proposing to determine that such SIP revision does not
correct the remaining deficiencies in Delaware's SIP identified in the
June 12, 2015, SIP call in accordance with the requirements for SIP
provisions under the Clean Air Act (CAA or Act). This action addresses
the remaining deficiencies identified in EPA's June 2015 SIP call that
have not yet been addressed by prior EPA actions on Delaware's November
2016 SIP submission.
DATES: Written comments must be received on or before July 21, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2023-0206 at <a href="http://www.regulations.gov">www.regulations.gov</a>, or via email to
<a href="/cdn-cgi/l/email-protection#17707865737879397a7e7c725772677639707861"><span class="__cf_email__" data-cfemail="8fe8e0fdebe0e1a1e2e6e4eacfeaffeea1e8e0f9">[email protected]</span></a>. For comments submitted at <a href="http://Regulations.gov">Regulations.gov</a>, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be confidential business information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit <a href="http://www.epa.gov/dockets/commenting-epa-dockets">www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Mallory Moser, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, Four Penn Center, 1600
John F. Kennedy Boulevard, Philadelphia, Pennsylvania 19103. The
telephone number is (215) 814-2030. Ms. Moser can also be reached via
electronic mail at <a href="/cdn-cgi/l/email-protection#563b39253324783b373a3a39242f1633263778313920"><span class="__cf_email__" data-cfemail="97faf8e4f2e5b9faf6fbfbf8e5eed7f2e7f6b9f0f8e1">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On November 22, 2016, DNREC submitted a
revision to its SIP in response to a national finding of substantial
inadequacy and SIP call published on June 12, 2015, which included
certain provisions in the Delaware SIP related to excess emissions
during SSM events.
I. Background
A. EPA's 2015 SSM SIP Action
On February 22, 2013, EPA issued a Federal Register notice of
proposed rulemaking outlining EPA's policy at the time with respect to
SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP
provisions and explained how each one either did or did not comply with
the CAA with regard to excess emission events.\1\ For each SIP
provision that EPA determined to be inconsistent with the CAA, EPA
proposed to find that the existing SIP provision was substantially
inadequate to meet CAA requirements and thus proposed to issue a SIP
call under CAA section 110(k)(5). On September 17, 2014, EPA issued a
document supplementing and revising what the Agency had previously
proposed on February 22, 2013, in light of a D.C. Circuit decision that
determined the CAA precludes authority of the EPA to create affirmative
defense provisions applicable to private civil suits. EPA outlined its
updated policy that affirmative defense SIP provisions are not
consistent with CAA requirements. EPA proposed in the supplemental
proposal document to apply its revised interpretation of the CAA to
specific affirmative defense SIP provisions and proposed SIP calls for
those provisions where appropriate.\2\
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\1\ State Implementation Plans: Response to Petition for
Rulemaking; Findings of Substantial Inadequacy; and SIP Calls To
Amend Provisions Applying to Excess Emissions During Periods of
Startup, Shutdown, and Malfunction, 78 FR 12460 (February 22, 2013).
\2\ 79 FR 55920 (September 17, 2014).
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On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying
to Excess Emissions During Periods of Startup, Shutdown and
Malfunction,'' hereafter referred to as the ``2015 SSM SIP Action.''
\3\ The 2015 SSM SIP Action clarified, restated, and updated EPA's
interpretation that SSM exemption and affirmative defense SIP
provisions are inconsistent with CAA requirements. The 2015 SSM SIP
Action found that certain SIP provisions in 36 states were
substantially inadequate to meet CAA requirements and issued a SIP call
to those states to submit SIP revisions to address the inadequacies.
EPA established an 18-month deadline by which the affected states had
to submit such SIP revisions. States were required to submit corrective
revisions to their SIPs in response to the SIP calls by November 22,
2016.
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\3\ 80 FR 33840 (June 12, 2015).
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EPA issued a Memorandum in October 2020 (2020 Memorandum), which
stated that certain provisions governing SSM periods in SIPs could be
viewed as consistent with CAA requirements.\4\ Importantly, the 2020
[[Page 40137]]
Memorandum stated that it ``did not alter in any way the determinations
made in the 2015 SSM SIP Action that identified specific state SIP
provisions that were substantially inadequate to meet the requirements
of the Act.'' Accordingly, the 2020 Memorandum had no direct impact on
the SIP call issued to Delaware in 2015. The 2020 Memorandum did,
however, indicate EPA's intent at the time to review SIP calls that
were issued in the 2015 SSM SIP Action to determine whether EPA should
maintain, modify, or withdraw particular SIP calls through future
agency actions.
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\4\ October 9, 2020, memorandum ``Inclusion of Provisions
Governing Periods of Startup, Shutdown, and Malfunctions in State
Implementation Plans,'' from Andrew R. Wheeler, Administrator.
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On September 30, 2021, EPA's Deputy Administrator withdrew the 2020
Memorandum and announced EPA's return to the policy articulated in the
2015 SSM SIP Action (2021 Memorandum).\5\ As articulated in the 2021
Memorandum, SIP provisions that contain exemptions or affirmative
defense provisions are not consistent with CAA requirements and,
therefore, generally are not approvable if contained in a SIP
submission. This policy approach is intended to ensure that all
communities and populations, including overburdened communities,
receive the full health and environmental protections provided by the
CAA.\6\ The 2021 Memorandum also retracted the prior statement from the
2020 Memorandum of EPA's plans to review and potentially modify or
withdraw particular SIP calls. That statement no longer reflects EPA's
intent. EPA intends to implement the principles laid out in the 2015
SSM SIP Action as the agency takes action on SIP submissions, including
this SIP submittal provided in response to the 2015 SIP call.
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\5\ September 30, 2021, memorandum ``Withdrawal of the October
9, 2020, Memorandum Addressing Startup, Shutdown, and Malfunctions
in State Implementation Plans and Implementation of the Prior
Policy,'' from Janet McCabe, Deputy Administrator.
\6\ 80 FR 33840 at 33985.
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B. Delaware's Provisions Related to Excess Emissions
With regard to the Delaware SIP, EPA's 2015 SSM SIP Action
determined that the following regulations were substantially inadequate
to meet CAA requirements: Title 7 of Delaware's Administrative Code (7
DE Admin. Code) 1104 Section (Sec. ) 1.5, 7 DE Admin. Code 1105 Sec.
1.7, 7 DE Admin. Code 1108 Sec. 1.2, 7 DE Admin. Code 1109 Sec. 1.4,
7 DE Admin. Code 1114 Sec. 1.3, 7 DE Admin. Code 1124 Sec. 1.4 and 7
DE Admin. Code 1142 Sec. 2.3.1.6.\7\ These provisions provide a state
official with the discretion, through the permitting process, to exempt
sources from otherwise applicable SIP emission limitations or to set
alternative limitations for periods of startup and shutdown. The
rationale underlying EPA's determination that these provisions were
substantially inadequate to meet CAA requirements, and therefore to
issue a SIP call to Delaware to remedy the provisions, is detailed in
the 2015 SSM SIP Action and the 2013 proposed SSM SIP Action.\8\
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\7\ See Id. at 33973.
\8\ See Id. and 78 FR 12460 at 12495.
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Delaware submitted a SIP revision on November 22, 2016, in response
to the SIP call issued in the 2015 SSM SIP Action. In addition to
addressing deficiencies identified in 7 DE Admin. Code 1104, 1105, 1109
and 1114, Delaware's submission noted that the deficiency highlighted
in 7 DE Admin. Code 1108 Sec. 1.2 was corrected by a previous SIP
revision, which was submitted to EPA on July 10, 2013. A final
rulemaking which acted on this 2013 submission and remedied 7 DE Admin.
Code 1108 Sec. 1.2 published in the Federal Register on July 11,
2022.\9\ Delaware's submission also requested that EPA revise the
Delaware SIP by removing 7 DE Admin. Code 1124 Sec. 1.4 and 7 DE
Admin. Code 1142 Sec. 2.3.1.6 in their entirety, thereby removing
these provisions, and their deficiencies, from the Delaware SIP. A
final rulemaking which remedied 7 DE Admin. Code 1124 Sec. 1.4 and 7
DE Admin. Code 1142 Sec. 2.3.1.6 published in the Federal Register on
February 14, 2023.\10\
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\9\ 87 FR 41074.
\10\ 88 FR 9399.
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Lastly, Delaware's submission requested that EPA revise the SIP to
address the deficiencies identified in the following regulations: 7 DE
Admin. Code 1104 Sec. 1.5, 7 DE Admin. Code 1105 Sec. 1.7, 7 DE
Admin. Code 1109 Sec. 1.4, and 7 DE Admin. Code 1114 Sec. 1.3.
Through this proposed rulemaking, EPA will be acting on these remaining
provisions that were identified as deficient in the 2015 SSM SIP
Action.
II. Summary of SIP Revision and EPA Analysis
EPA has identified several significant concerns with Delaware's
revisions to 7 DE Admin. Code 1104 Sec. 1.5, 7 DE Admin. Code 1105
Sec. 1.7, 7 DE Admin. Code 1109 Sec. 1.4, and 7 DE Admin. Code 1114
Sec. 1.3, which suggest that those parts of the 2016 SIP submission
cannot be approved. Delaware's revisions to these sections in the SIP
submission and EPA's corresponding analysis are summarized below. An
underline/strikeout version of each regulation, showing the changes to
the regulations or the changes requested to the Delaware SIP, is
included in the docket for this rulemaking.\11\
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\11\ The revisions can be found on pages 4-7 of the PDF, which
corresponds to pages 1-4 of Delaware's submitted document entitled
``Revision to Satisfy EPA's State Implementation Plan (SIP) Call
Related to Air Emissions During Equipment Start-up and Shutdown,''
which is in the docket for this action.
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A. Summary and Analysis of Revisions to 7 DE Admin. Code 1104 Sec. 1.5
and 7 DE Admin. Code 1105 Sec. 1.7
The 2015 SSM SIP Action cited 7 DE Admin. Code 1104 (Particulate
Emissions from Fuel Burning Equipment) Sec. 1.5 because it provides a
potential exemption from the emission limit in 7 DE Admin. Code 1104
Sec. 2.1. The emission limit in 7 DE Admin. Code 1104 Sec. 2.1
currently contained in the EPA-approved SIP says, ``no person shall
cause or allow the emission of particulate matter in excess of 0.3
pound per million British Thermal Units (lb/MMBTU) heat input, maximum
two-hour average.'' Section 1.5 creates a potential exemption to this
limit during start-up or shutdown events by stating, ``The provisions
of this Regulation shall not apply to the start-up and shutdown of
equipment which operates continuously or in an extended steady state
when emissions from such equipment during start-up and shutdown are
governed by an operation permit issued pursuant to the provisions of
2.0 of 7 DE Admin. Code 1102.'' Delaware's SIP submission asked EPA to
remove Sec. 1.5 and Sec. 2.1 of 7 DE Admin. Code 1104 from the EPA-
approved Delaware SIP, but these provisions would remain in the
Delaware regulations. In addition, Delaware revised 7 DE Admin. Code
1104 by adding a new section, Sec. 2.2, which states, ``[n]o person
shall cause or allow the emission of particulate matter in excess of
0.3 pound per million BTU heat input, maximum 30-day rolling average,
from any fuel burning equipment.'' The SIP submission asked EPA to
approve this new Sec. 2.2 into the Delaware SIP. While Delaware
requested to remove Sec. 1.5, which contains the potential emission
limit exemption during start-up and shutdown, from the EPA-approved
SIP, the State also increased the two-hour averaging time found in
Sec. 2.1 to 30 days while keeping the same 0.3 lb/MMBTU limit. Thus,
the EPA-approved SIP would have a 0.3 lb/MMBTU 30-day rolling average
limit, as set forth in the
[[Page 40138]]
new Sec. 2.2, while Delaware's regulations would have both a limit of
0.3 lb/MMBTU two-hour average in Sec. 2.1, which could be changed for
startup and shutdown purposes via Sec. 1.5, and a 0.3 lb/MMBTU 30-day
rolling average limit in Sec. 2.2 that could not be changed via Sec.
1.5.
The 2015 SSM SIP Action also highlighted 7 DE Admin. Code 1105
(Particulate Emissions from Industrial Process Operations) Sec. 1.7
because it provides a potential exemption from the emission limit in 7
DE Admin. Code 1105 Sec. 2.1. The emission limit in 7 DE Admin. Code
1105 Sec. 2.1 currently contained in the EPA-approved SIP says, ``No
person shall cause or allow particulate emissions into the atmosphere
from any source not provided for in subsequent sections of this
Regulation in excess of 0.2 grains per standard cubic foot.'' Section
1.7 creates a potential exemption to this limit by stating, ``The
provisions of this Regulation shall not apply to the start-up and
shutdown of equipment which operates continuously or in an extended
steady state when emissions from such equipment during start-up and
shutdown are governed by an operation permit issued pursuant to the
provisions of 2.0 of 7 DE Admin. Code 1102.'' Delaware revised 7 DE
Admin. Code 1105 by adding a new section, Sec. 2.2, which added an
emission limit of 0.2 grains per standard cubic foot on a 30-day
rolling average basis. Delaware's SIP submission asked EPA to remove
Sec. 1.7 and Sec. 2.1 from the EPA-approved SIP, but these provisions
would remain in the Delaware regulations. Delaware's submission also
asked EPA to approve the new Sec. 2.2 into the SIP. Again, although
Delaware requested to remove Sec. 1.7, which contained the exemption
identified in the 2015 SSM SIP Action, the State also asked EPA to
approve into the SIP a newly created limit in Sec. 2.2 which adds an
averaging period of 30 days to the existing 0.2 grains per cubic foot
limit. Delaware does not explain how these differing emission limits in
Sec. 2.1 and Sec. 2.2 would be reconciled.
Delaware explained that the increases in averaging times provide
the opportunity for any source subject to these limits to compensate
for higher emission rates during startup or shutdown events by emitting
at lower rates during normal operations, so long as continuous
compliance is demonstrated on a 30-day rolling average basis.
However, Delaware's increases in the averaging times for the
particulate emission limits found in 7 DE Admin. Code 1104 and 1105
were not supported by a sufficient analysis explaining why these
changes meet the requirements of section 110(l) of the CAA. The 2015
SSM SIP Action did not provide an opportunity for averaging times to be
increased with no explanation or analysis of how the increased
averaging time would or would not affect the national ambient air
quality standards (NAAQS). In response to a comment regarding opacity,
EPA noted in the 2015 SSM SIP Action that the removal of impermissible
SSM exemptions should not be perceived as an opportunity to provide new
de facto exemptions for these emissions by manipulation of the
averaging time and the numerical level of existing opacity emission
limitations.\12\ This reasoning is not exclusive to opacity
limitations, and also applies to the SIP-approved particulate limit 30-
day rolling averaging times that Delaware has added to 7 De Admin. Code
1104 and 1105. During Delaware's public comment period on these
regulatory changes, EPA submitted comments raising this and other
concerns.\13\ EPA noted that Delaware did not address whether changes
to the averaging period might affect the emissions of any criteria
pollutant and recommended a more robust explanation and analysis be
provided to support Delaware's conclusion in order to meet the
requirements of section 110(l) of the CAA. The State responded to EPA's
comments during the state regulatory comment period with minimal data
to assert that the long-term average of emissions would be slightly
lower with the implementation of the revised limit. The State also
explained these limits were originally intended to protect the total
suspended particulate (TSP) NAAQS. However, the particulate matter (PM)
NAAQS replaced the TSP standard.\14\ Therefore, these limits still play
a role in protecting the existing PM NAAQS. Although Delaware is
currently attaining the PM standards,\15\ the State did not explain how
this 30-day rolling average longer-term limit is still protective of
the short-term NAAQS, such as the 24-hour PM standard. Delaware's
response to EPA's comments did not adequately explain how the increased
averaging time of the 30-day rolling average limits, without decreasing
the limit itself, would be protective of the PM NAAQS, and instead
noted, with minimal explanation, that this would not result in any
increase in emissions on a tons per year basis. Delaware explained this
using two scenarios. In the first scenario, Delaware referred to the
emissions limits and startup/shut down exemptions that are currently
SIP-approved. Delaware stated that if all steady-state hours of
operation emit exactly at, or very near, the emissions limit, and
emissions during startup/shut down events are exempt, then the long-
term average of emissions would be slightly higher than the emission
limit. In scenario two, they noted with the new 30-day rolling average
limits and no exemptions for start-up or shut down events, emissions
occurring during SSM events would have to be offset by emissions lower
than the 30-day average emission limit during non-SSM operation.
Delaware asserted, without any further explanation, that this would
result in the long-term average of emissions to be no more than the 30-
day average emission limit. Delaware explained, with respect to annual
emissions, the emissions calculation in scenario two is less than the
emissions in scenario one. Therefore, Delaware believes this change is
SIP strengthening.
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\12\ 80 FR 33840 at 33921 (June 12, 2015).
\13\ See EPA Comment #1 and EPA Comment #2 of Appendix B in
State Submittal document.
\14\ The PM<INF>2.5</INF> 24-hour standard is 35 micrograms per
cubic meter ([mu]g/m\3\). The PM<INF>2.5</INF> annual standard is
12.0 [mu]g/m\3\. The PM<INF>10</INF> 24-hour standard is 150 [mu]g/
m\3\. See 40 CFR 50.6 and 50.7.
\15\ See 40 CFR 81.308.
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EPA does not agree that the evaluation of the impacts of changing
the averaging period for an emissions limit enacted to ensure the NAAQS
is attained and protected can be limited only to consideration of
emissions on an annual basis. The potential short-term effect of a
sharp increase in particulate emissions during a startup or shutdown
event on a shorter-term NAAQS limit, such as the PM<INF>10</INF> 24-
hour standard, need to be examined and explained. Therefore, EPA does
not consider the State's explanation of why the longer 30-day averaging
period with the same emission limit are adequate to ensure continued
attainment of the NAAQS. EPA's comments and Delaware's response can be
found in the docket for this action.
Under CAA section 110(l), EPA cannot approve a plan revision ``if
the revision would interfere with any applicable requirement concerning
attainment and reasonable further progress (as defined in section 7501
of [title 42]), or any other applicable requirement of this chapter.''
\16\ The nature of the technical demonstration needed under section
110(l) to support approval of a SIP revision depends on the facts and
circumstances of the SIP revision at issue. Based on the
[[Page 40139]]
information available to EPA, EPA concluded that approval of these
longer-term limits for a shorter-term NAAQS would not be consistent
with the requirements of section 110(l). For EPA's analysis to address
CAA section 110(l), EPA requested information from the State, but the
State did not respond with the appropriate information. At a minimum,
Delaware should have explained how this change would not impact
maintenance of the PM NAAQS, as well as explain how this change meets
the applicable legal requirements of the CAA, including both sections
110(l) and 193, as EPA suggested in their comments during Delaware's
public comment period. Additionally, the submittal lacks an explanation
of the maximum daily emissions that could occur with the new averaging
time. There is also no information regarding the likely frequency of
startup and shutdown events, the likely magnitude of emissions during
these events, and how many such events it would take in a 30-day period
to exceed the new 30-day average. This information is relevant because
it could be that one large startup or shutdown event with significant
PM emissions could cause an exceedance of the PM NAAQS at a monitor.
More frequent SSM events under a 30-day averaging period can cause the
short-term emissions to increase, with a deleterious effect on shorter-
term NAAQS. There is no explanation of how the NAAQS will continue to
be protected with the new, longer averaging period.
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\16\ A more detailed discussion of 110(l) can be found in the
SO<INF>2</INF> air plan disapproval for Missouri at 87 FR 40759,
40760 (July 8, 2022).
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Replacement SIP provisions should have averaging periods that are
logically related to the NAAQS at issue. The 2015 SSM SIP Action notes,
``For example, if a state chooses to modify averaging times in an
emission limitation to account for higher emissions during startup and
shutdown, the state would need to consider and demonstrate to the EPA
how the variability of emissions over that averaging period might
affect attainment and maintenance of a NAAQS with a short averaging
period (e.g., how a 30-day averaging period for emissions can ensure
attainment of an 8-hour NAAQS).'' (80 FR 33840, 33947 (June 12, 2015)).
Delaware has not explained how the 30-day average is reasonably related
to the 24-hour PM NAAQS. The 2015 SSM SIP Action also notes that in
some cases, extension of the averaging period and elevation of the
numerical limitations may in fact be appropriate. In other cases,
however, it may instead be appropriate to reduce the existing numerical
opacity limitations, given improvements in control technology since the
original imposition of the limits.\17\ In either scenario, the
appropriate analysis and justification is needed, such as specific
calculations, including emissions distributions for sources in the
state, backed up by operating data, that shows an extension of the
averaging period would not violate the NAAQS. EPA has explained, for
the sulfur dioxide (SO<INF>2</INF>) NAAQS, how an increase in the
averaging period for SO<INF>2</INF> emission limits beyond the 8-hour
standard used for the SO<INF>2</INF> NAAQS could be protective of the
eight-hour SO<INF>2</INF> NAAQS. EPA's 2014 SO<INF>2</INF>
Nonattainment Guidance recommends that the emission limits be expressed
as short-term averages, but also describes the option to use emission
limits with longer averaging times of up to 30 days so long as the
state meets various suggested criteria.\18\ The guidance recommends
that--should states and sources utilize longer averaging times--the
longer-term average limit should be set at an adjusted level that
reflects a stringency comparable to the 1-hour average limit at the
critical emission value (CEV) shown to provide for attainment that the
plan otherwise would have set.\19\ To preserve comparable stringency,
it would be expected that adjusting the level would result in a
lowering of the emission rate if lengthening the averaging time. In
cases where longer-term average limits are appropriate, EPA envisions
that both the short-term and longer-term limits in practice would
require similar emission control levels and would commonly result in
similar emission patterns.\20\ Therefore, a longer averaging time can
be appropriate to protect a shorter-term NAAQS but would require an in-
depth analysis of what adjusted downward level would provide a
comparable stringency. Delaware did not lower their emissions limit
when increasing the averaging time, nor did they provide an in-depth
analysis explaining how the same emission limit with a 30-day rolling
averaging period is comparable in stringency to the same emission limit
with a shorter, 3-hour averaging period previously found in their EPA-
approved SIP.
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\17\ 80 FR 33840 at 33912 (June 12, 2015).
\18\ Guidance for 1-hour Sulfur Dioxide (SO<INF>2</INF>)
Nonattainment Area State Implementation Plans (SIP) Submissions, pp.
22 to 39.
\19\ Id. at 26.
\20\ Id. at 29.
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To support their adoption of a 30-day averaging period, Delaware's
response to comments cited page 2 of EPA's 1984 guidance memo, entitled
``Averaging Times for Compliance with VOC Emission Limits--SIP Revision
Policy,'' \21\ which states ``Averaging periods must be as short as
practicable and in no case longer than 30 days.'' However, in the same
memo, EPA specifically states that a demonstration must be made to show
the use of long-term averaging will not jeopardize the NAAQS.\22\
Though this guidance is geared towards volatile organic compounds
(VOCs), the idea that retention of the same limit with a longer-term
averaging period requires some demonstration explaining how the longer-
term averaging time would not affect the NAAQS is applicable to the PM
NAAQS too.
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\21\ See the Averaging Times for Compliance with VOC Emission
Limits--SIP Revision Policy Memorandum.
\22\ Id. at 2.
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It is also important to recognize the broadness of the source
categories for these two regulations--fuel burning equipment and
industrial process operations. Given the broadness of these categories,
significant consideration should be given to how a 30-day averaging
period would even apply to the sources falling in these categories,
especially the smaller source categories that do not operate regularly,
such as emergency generators. The State's submittal also lacks an
explanation of the type and number of Delaware sources which might be
subject to these two regulations, and how the change in averaging time
might affect their emissions and thus affect the NAAQS. Additional
explanation is required to explain how the revisions would impact the
sources subject to these regulations, and how these impacts would be
unlikely to affect the NAAQS.
Lastly, Delaware noted that the emission limits that were
highlighted in the 2015 SSM SIP Action would remain in the Delaware
state regulations. Therefore, these short-term limits, along with the
exemptions, are still applicable as a matter of state law only.
According to Delaware, because the short-term limits are still
effective at the state level, there is no change in the status quo of
emissions, and this means air quality may remain unaffected. However,
this is still problematic for several reasons. First, EPA cannot rely
on state-only provisions when evaluating SIP submissions for compliance
with CAA requirements. Presumably, Delaware asked that these emission
limits be placed into the SIP because they were necessary to attain or
maintain the NAAQS, and as discussed above, the effect on the NAAQS of
replacing these shorter-term average SIP limits with longer-term
averaging limits on attainment or maintenance of the
[[Page 40140]]
NAAQS is not adequately explained. Second, removing the shorter-term
emission limits from the EPA-approved SIP but keeping them in the state
regulation, while also keeping the possibility for a state issued
startup or shutdown exemption from these limits, creates the
possibility that the current status quo of PM emissions may not be
maintained. And, because the shorter-term emission limit is no longer
in the SIP, neither EPA nor citizens can enforce the shorter-term limit
under CAA sections 113 and 304. In effect, Delaware could grant an
exemption to emission limits which might be necessary to attain or
maintain the NAAQS without going through the SIP revision process
required by the CAA.
The concerns stated above suggest that the revisions to 7 DE Admin.
Code 1104, Particulate Emissions from Fuel Burning Equipment, and 7 DE
Admin. Code 1105, Particulate Emissions from Industrial Process
Operations, cannot be approved. Further justification and information
from the State is required to explain that these changes would not be
inconsistent with CAA section 110(l), as well as explain how this
change meets the applicable legal requirements of the CAA, including
CAA section 193.
B. Summary and Analysis of Revisions to 7 DE Admin. Code 1109 Sec. 1.4
and 7 DE Admin. Code 1114 Sec. 1.3
The 2015 SSM SIP Action included 7 DE Admin. Code 1109 (Emissions
of Sulfur Compounds From Industrial Operations) Sec. 1.4 because it
provides a potential exemption from the emission limitations during
startup and shutdown when the emissions during startup and shutdown are
governed by an operation permit issued pursuant to Sec. 2.0 of 7 DE
Admin. Code 1102. Delaware's SIP revision requests that the EPA remove
7 DE Admin. Code 1109 in its entirety from the Delaware SIP but retains
this regulation, including the startup and shutdown exemption, at the
state level. Delaware asserts that existing Federal requirements, such
as the New Source Performance Standards (NSPS) adopted pursuant to CAA
section 111, are adequate to ensure Delaware's maintenance of the
sulfur-related NAAQS,\23\ which Delaware is currently attaining.\24\
Delaware believes that removal of this regulation from the SIP, but
retention of the regulation at the state level, will not result in any
increase in emissions on a ton per year basis, and that this revision
comports with the EPA's interpretation of the CAA and is consistent
with the EPA's approach for attainment and maintenance of all NAAQS.
---------------------------------------------------------------------------
\23\ The SO<INF>2</INF> 1-hour standard is 75 ppb. See 40 CFR
50.17.
\24\ See 40 CFR 81.308.
---------------------------------------------------------------------------
The 2015 SSM SIP Action included 7 DE Admin. Code 1114 (Visible
Emissions), Sec. 1.3, because it provides a similar exemption from the
visible emission (VE) limits during startup and shutdown when such
emissions are governed by an operation permit issued pursuant to Sec.
2.0 of 7 DE Admin. Code 1102. Delaware's SIP revision requests that the
EPA remove 7 DE Admin. Code 1114 in its entirety from the Delaware SIP
but retains this regulation, including the exemption, in the state
regulations. The State asserts that existing Federal requirements, such
as the New Source Performance Standards (NSPS), regulate visible
emissions from certain sources, while two other Delaware SIP
regulations that regulate fine particulate matter and fine particulate
matter precursors (7 DE Admin. Code 1108 and 1146) when combined with
the NSPS, are adequate to ensure Delaware's attainment and maintenance
of any particulate-related NAAQS. In addition, Delaware argues that
there is no quantifiable relationship between visible emissions and
fine particulate matter emissions. Delaware believes that removal of
this regulation from the SIP will not result in any increase in
emissions on a ton per year basis, and that because this revision
removes from the SIP a provision allowing for excess emissions, the
change therefore comports with the EPA's interpretation of the CAA and
is consistent with the EPA's approach for attainment and maintenance of
all NAAQS. Delaware's response provides no other explanation regarding
how the revisions comply with the CAA.
To address CAA section 110(l), EPA believes it needs more
information and analysis from the State to support EPA's approval of
the removal of these two regulations from the Delaware SIP while
keeping the regulations at the state level. Section 110(l) prohibits
approval of a SIP revision if it would interfere with attainment or any
other applicable requirement. Delaware's SIP revision merely states
that the removal of this regulation from the SIP will not result in any
increase in emissions on a ton per year basis but provides no further
explanation or any technical demonstration to support this assertion,
and EPA does not have information available that would support this
conclusion. To support an approval decision that would be consistent
with section 110(l), Delaware should have provided information
demonstrating that these changes would not impact maintenance of the
NAAQS, as well as explain how this change meets the applicable legal
requirements of the CAA, including section 193. During the state public
comment period on this SIP revision, EPA submitted comments to Delaware
raising these concerns.\25\ EPA's comments and Delaware's response can
be found in the docket for this action.
---------------------------------------------------------------------------
\25\ See EPA Comment #3 and EPA Comment #4 of Appendix B in
State Submittal document.
---------------------------------------------------------------------------
Despite EPA's comments, Delaware's SIP revision did not include an
analysis to address CAA section 110(l). Instead, in regard, to 7 DE
Admin. Code 1109, the State responded that the sources' reliance on the
NSPS is enough to protect the NAAQS. Specifically, Delaware noted there
are two facilities in the state currently subject to 7 DE Admin Code
1109--the Chemours Red Lion sulfuric acid plant and the Delaware City
Refinery--and that each facility is subject to a more stringent NSPS.
The Chemours Red Lion sulfuric acid plant is subject to 40 CFR part 60,
subpart H, and the Delaware City Refinery is subject to 40 CFR part 60,
subpart J. However, both subparts H and J allow for periods of excess
emissions. The provisions at 40 CFR part 60, subpart A, General
Provisions, are applicable to sources subject to 40 CFR part 60,
subparts H and J. Subpart A of 40 CFR part 60 contains exemptions in
both 40 CFR 60.8(c)and 60.11(c) . The provisions at 40 CFR 60.11(c)
note ``The opacity standards set forth in this part shall apply at all
times except during periods of startup, shutdown, malfunction, and as
otherwise provided in the applicable standard.'' While 40 CFR 60.8(c),
states ``Operations during periods of startup, shutdown, and
malfunction shall not constitute representative conditions for the
purpose of a performance test nor shall emissions in excess of the
level of the applicable emission limit during periods of startup,
shutdown, and malfunction be considered a violation of the applicable
emission limit unless otherwise specified in the applicable standard.''
Reliance on these NSPS, which include excess emission exemptions, is
problematic in some cases for multiple reasons.
EPA acknowledges that many of the existing NSPS still contain
exemptions from emission limitations during periods of SSM. The
exemptions in these EPA regulations, however, predate the 2008 issuance
of the D.C. Circuit decision in Sierra Club v. Johnson, in which the
court held that emission limitations must be continuous and thus cannot
contain exemptions for
[[Page 40141]]
emissions during SSM events.\26\ Since the 2008 Sierra Club decision,
EPA has been working to remove or revise these SSM provisions as NSPS
are reviewed.\27\ Thus, some NSPS have been revised to address the 2008
Sierra Club decision, but some have not, and Delaware's sources may be
subject to not-yet-updated standards. Despite the fact that EPA has not
completed its work removing SSM provisions from every NSPS, the Agency
is not willing to approve the removal of SIP approved regulations
containing potential startup and shutdown exemptions, on the basis that
affected sources would instead be subject to NSPS that also contain SSM
exemptions.
---------------------------------------------------------------------------
\26\ 551 F.3d 1019 (D.C. Cir. 2008).
\27\ 80 FR 33840 at 33890-91 (June 12, 2015).
---------------------------------------------------------------------------
Regarding 7 DE Admin Code 1114, the State responded to EPA's
comment by noting that there is no discernable relationship between
opacity and fine particulate matter emissions, and therefore this
regulation cannot be relied on to prevent a source from impacting the
NAAQS. EPA assumes Delaware meant that PM<INF>2.5</INF> cannot be seen
as visible emissions because PM<INF>2.5</INF> is formed after leaving
the stack or other source from the precursor emissions of nitrogen
oxides (NO<INF>X</INF>), VOCs, SO<INF>2</INF>, and ammonia. However,
PM<INF>10</INF> can be seen as visible emissions, and the observation
of unusual levels of visible emissions could be an indication of a
malfunction in the source itself or a pollution control device which
may result in increased emissions of one or more of PM<INF>2.5</INF>
precursors. Thus, Delaware's existing opacity limits may be a warning
sign of potential increases in the precursor pollutants contributing to
PM<INF>2.5</INF>, and therefore may play a role in preventing
PM<INF>2.5</INF> NAAQS exceedances.
Delaware also cites to two other SIP approved regulations, 7 DE
Admin. Code 1108 Sulfur Dioxide Emissions from Fuel Burning Equipment,
and 7 DE Admin. Code 1146 EGU Multi-Pollutant Regulation, as being
adequate to protect the PM NAAQS, along with unidentified NSPS, but
does not adequately explain how these regulations or the NSPS control
emissions of PM<INF>2.5</INF> precursors during VE events. In addition,
the State still did not provide an explanation of the number and type
of Delaware sources subject to 7 DE Admin. Code 1114, how removing this
regulation from the Delaware SIP but retaining it as a state regulation
with the potential startup and shutdown exemption would affect their
emissions and thus affect the NAAQS, and how the Delaware SIP would
remain protective of the NAAQS. Further justification is required to
explain that this change will not impact attainment and maintenance of
the NAAQS, as well as explain how this change meets the applicable
legal requirements of the CAA, including CAA section 193.
Lastly, Delaware noted that these regulations that were highlighted
in the 2015 SSM SIP Action (1109 and 1114) would be retained at the
state level. These state regulations allow Delaware to issue case-by-
case permits via 7 DE Admin. Code 1102 to address emissions during
startup and shutdown events. Therefore, Delaware would be relying on
their own permits to regulate emissions during startup and shutdown
events to protect the NAAQS during these periods. Because these
regulations (1109 and 1114) provide a potential exemption from the
emission limitations during startup and shutdown when the emissions
during startup and shutdown are governed by a section 1102 operation
permit, but would no longer be in the SIP, neither EPA nor citizens
would be able to enforce this alternative limit for startup or shutdown
under CAA sections 113 and 304. In effect, Delaware could grant an
exemption to formerly federally enforceable emission limits which might
be necessary to attain or maintain the NAAQS without justifying these
revisions by going through the SIP revision process required by the
CAA.
The concerns stated above suggest that the revisions to the
Delaware SIP requesting removal of 7 DE Admin. Code 1109, Emissions of
Sulfur Compounds From Industrial Operations, and 7 DE Admin. Code 1114,
Visible Emissions, from the SIP cannot be approved.
III. Proposed Action
EPA's review of this material indicates Delaware did not provide
adequate justification to support the revisions to Delaware's SIP
pertaining to 7 DE Admin. Code 1104, 1105, 1109 and 1114 requested in
their 2016 SIP submission. Further justification is required to explain
that these changes will not impact maintenance of the PM and
SO<INF>2</INF> NAAQS. EPA is proposing to disapprove the portion of
Delaware's November 22, 2016, SIP submission addressing 7 DE Admin.
Code 1104 Sec. 1.5, 7 DE Admin. Code 1105 Sec. 1.7, 7 DE Admin. Code
1109 Sec. 1.4, and 7 DE Admin. Code 1114 Sec. 1.3. EPA is not
reopening the 2015 SSM SIP Action and is only taking comment on the
issues discussed in this document. These comments will be considered
before taking final action.
IV. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="http://www.epa.gov/laws-regulations/laws-and-executive-orders">www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' as defined
by Executive Order 12866 and was therefore not submitted to the Office
of Management and Budget for review.
B. Paperwork Reduction Act (PRA)
This proposed action does not impose an information collection
burden under the PRA because it does not contain any information
collection activities.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action merely proposes to disapprove a SIP submission as not meeting
the CAA.
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. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
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
This action does not have tribal implications as specified in
Executive Order 13175. This action does not apply on any Indian
reservation land, any other area where the EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction, or non-reservation areas of
Indian country. Thus, Executive Order 13175 does not apply to this
action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
[[Page 40142]]
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it merely proposes to disapprove a SIP
submission as not meeting the CAA.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``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.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to review state choices,
and approve those choices if they meet the minimum criteria of the Act.
Accordingly, this proposed action disapproves state law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by state law.
The air agency did not evaluate environmental justice
considerations as part of its SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. EPA did not perform an EJ analysis and did not consider EJ
in this action. Due to the nature of the action being taken here, this
action is expected to have a neutral to positive impact on the air
quality of the affected area. Consideration of EJ is not required as
part of this action, and there is no information in the record
inconsistent with the stated goal of E.O. 12898 of achieving
environmental justice for people of color, low-income populations, and
Indigenous peoples. This action merely proposes to disapprove a SIP
submission as not meeting the CAA.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2023-13148 Filed 6-20-23; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.