Rule2023-23242
Air Plan Disapproval; Delaware; Removal of Excess Emissions Provisions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 23, 2023
Effective
November 22, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is disapproving 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 disapproving certain portions of the SIP revision and determining 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 203 (Monday, October 23, 2023)</title>
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[Federal Register Volume 88, Number 203 (Monday, October 23, 2023)]
[Rules and Regulations]
[Pages 72688-72691]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23242]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2023-0206; FRL-11037-02-R3]
Air Plan Disapproval; Delaware; Removal of Excess Emissions
Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final action.
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SUMMARY: The Environmental Protection Agency (EPA) is disapproving
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 disapproving certain portions of the SIP revision and
determining 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: This final action is effective on November 22, 2023.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2023-0206. All documents in the docket are listed on
the <a href="http://www.regulations.gov">www.regulations.gov</a> website. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available through
<a href="http://www.regulations.gov">www.regulations.gov</a>, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
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)
[[Page 72689]]
814-2030. Ms. Moser can also be reached via electronic mail at
<a href="/cdn-cgi/l/email-protection#a2cfcdd1c7d08ccfc3cececdd0dbe2c7d2c38cc5cdd4"><span class="__cf_email__" data-cfemail="2a4745594f5804474b46464558536a4f5a4b044d455c">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On June 12, 2015, pursuant to CAA section 110(k)(5), the 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,'' \1\ hereafter referred to as the ``2015 SSM
SIP Action.'' The 2015 SSM SIP Action clarified, restated, and updated
the EPA's interpretation that SSM exemptions (whether automatic or
discretionary) 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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\1\ 80 FR 33839, June 12, 2015.
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With respect to the Delaware SIP, in the 2015 SSM SIP Action, EPA
determined that the following 7 provisions 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.
Delaware submitted a SIP revision on November 22, 2016, in response to
the SIP call issued in the 2015 SSM SIP Action. Delaware's submission
noted that the deficiency highlighted in 7 DE Admin. Code 1108 Sec.
1.2 was corrected by a previous SIP revision submitted to EPA on July
10, 2013. A final rule acting on this 2013 submission and remedying 7
DE Admin. Code 1108 Sec. 1.2 published in the Federal Register on July
11, 2022.\2\ 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 remedying 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.\3\
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\2\ See 87 FR 41074.
\3\ See 88 FR 9399.
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II. Summary of SIP Revision and EPA Analysis
On June 21, 2023, EPA published a notice of proposed rulemaking
(NPRM) related to the remaining four provisions identified in EPA's
June 2015 SIP call that had not yet been addressed by prior EPA
actions.\4\ In that document, EPA proposed disapproval of the remainder
of Delaware's 2016 submittal for multiple reasons. With regards to 7 DE
Admin. Code 1104 and 7 DE Admin. Code 1105, Delaware's 2016 submittal
requested EPA replace both two-hour averaging periods for particulate
emission limits with 30-day rolling averages with no change to the
level of the limit. The increases in averaging times were not supported
by a sufficient analysis explaining why these changes meet the
requirements of CAA section 110(l). Additionally, Delaware did not
provide an explanation or analysis of how increasing the averaging time
of the affected limits without any adjustment to their levels would or
would not affect attainment or maintenance of the national ambient air
quality standards (NAAQS). With regards to 7 DE Admin. Code 1109 and 7
DE Admin. Code 1114, Delaware's 2016 submission requested the removal
of these regulations from the SIP and instead noted that other
requirements, including the CAA New Source Performance Standards
(NSPS), are adequate to protect the NAAQS. This is problematic because
the specific NSPS which Delaware cited allow for periods of excess
emissions during SSM events. Also, these changes were not supported by
a sufficient analysis explaining how these changes meet the
requirements of CAA section 110(l). A more complete explanation of the
reasons for the proposed disapproval can be found in the June 21, 2023,
NPRM.
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\4\ See 88 FR 40136.
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III. EPA's Response to Comments Received
EPA received two comments which can be found in the docket. One
comment, from the State of Delaware, notes the State is reviewing the
record and preparing a path forward to respond to the concerns found
within the NPRM. EPA acknowledges Delaware's comment. The other
comment, from the Sierra Club and Environmental Integrity Project
(EIP), was partially adverse, and the adverse portions are discussed
below.
Comment 1: The commenters, Sierra Club and EIP, expressed support
for EPA's proposed disapproval action on the remaining provisions in
Delaware's 2016 submittal, while disagreeing with EPA's position in the
NPRM that a properly set longer-term averaging period can be protective
of a shorter-term NAAQS. Commenters also urged EPA to propose a Federal
Implementation Plan (FIP) to address the remaining disapproved
provisions of Delaware's 2016 submittal.
Response 1: While EPA acknowledges commenters' support of this
action, EPA continues to believe that in appropriate cases properly set
longer-term emission limits can be protective of a shorter-term NAAQS.
EPA has explained in the 2014 Guidance for 1-Hour Sulfur dioxide
(SO<INF>2</INF>) Nonattainment Area SIP Submissions (2014
SO<INF>2</INF> Guidance) \5\ how a short-term rate that is shown to be
NAAQS protective for a given source can be converted to a comparably
stringent longer-term limit that is also NAAQS protective. The 1-hour
SO<INF>2</INF> Guidance recommends that 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 to adjust the longer-term limit
downward to account for the variability of the source's emissions. EPA
has approved several SO<INF>2</INF> SIPs relying on longer term average
limits derived according to the methods found in the 2014
SO<INF>2</INF> guidance. See, for example, 83 FR 4591 (February 1,
2018) (approval of Illinois SO<INF>2</INF> SIP); 83 FR 25922 (June 5,
2018) (approval of New Hampshire SO<INF>2</INF> SIP); 84 FR 8813 (March
12, 2019) (approval of Arizona SO<INF>2</INF> SIP); 84 FR 30920 (June
28, 2019) (approval of Kentucky SO<INF>2</INF> SIP); 84 FR 51988
(October 1, 2019) (approval of Pennsylvania SO<INF>2</INF> SIP for the
Beaver County area); 85 FR 22593 (April 23, 2020 (approval of
Pennsylvania SO<INF>2</INF> SIP for the Allegheny County area), and 85
FR 49967 (August 17, 2020) (approval of Indiana SO<INF>2</INF> SIP).
The principles found in the 2014 SO<INF>2</INF> Guidance can be applied
to other NAAQS pollutants with short-term averaging times, such as
particulate matter, if adequately demonstrated in a specific case. With
an appropriate analysis, a properly set longer-term averaging period
can be protective of a shorter-term NAAQS;
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however, in this matter Delaware merely lengthened the averaging time
for the limit without adjusting the limit's value in accordance with
the SIP Guidance. As such, a critical portion of the demonstration is
lacking so EPA is not yet prepared to apply this methodology in this
specific action.
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\5\ The 2014 SO<INF>2</INF> Guidance can be found at the
following web address: <a href="https://www.epa.gov/sites/default/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf">https://www.epa.gov/sites/default/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf</a>.
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In response to the request that EPA promulgate a FIP, EPA
acknowledges this comment and recognizes the Agency's statutory
obligation to promulgate a FIP within 24 months of a final disapproval
of a SIP submission unless the State corrects the deficiency, and EPA
approves the plan or plan revision, before EPA promulgates the FIP.
IV. Final Action
For the reasons discussed in detail in the proposed rulemaking and
summarized herein, EPA is disapproving 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.
As a result of our disapproval, CAA section 110(c)(1) would require
EPA to promulgate a FIP within 24 months of the effective date of the
final disapproval action, unless EPA first approves a complete SIP
revision that corrects the deficiencies in 7 DE Admin. Code 1104
Section (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, within such time.
In addition, final disapproval could trigger mandatory sanctions under
CAA section 179 and 40 CFR 52.31 unless the State submits, and EPA
approves, a complete SIP revision that corrects the identified
deficiencies within 18 months of the effective date of the final
disapproval action.\6\
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\6\ The offset sanction in CAA section 179(b)(2) would be
triggered 18 months after the effective date of a final disapproval,
and the highway funding sanction in CAA section 179(b)(1) would be
triggered 24 months after the effective date of a final disapproval.
Although the sanctions clock would begin to run from the effective
date of a final disapproval, mandatory sanctions under CAA section
179 generally apply only in designated nonattainment areas. This
includes areas designated as nonattainment after the effective date
of a final disapproval. As discussed in the 2015 SSM SIP Action, EPA
will evaluate the geographic scope of potential sanctions at the
time it makes a determination that the air agency has failed to make
a complete SIP submission in response to the 2015 SIP call, or at
the time it disapproves such a SIP submission. The appropriate
geographic scope for sanctions may vary depending upon the SIP
provisions at issue. See the 2015 SSM SIP Action at 80 FR 33839,
33930 (June 12, 2015) EPA Docket ID No. EPA-HQ-OAR-2012-0322
available at <a href="http://www.regulations.gov">www.regulations.gov</a>.
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V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices, if
they meet the criteria of the CAA. Accordingly, this final action
disapproving portions of Delaware's SIP revision merely ascertains that
these State law provisions do not meet Federal requirements and does
not impose additional requirements beyond those imposed by state law.
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 portion of 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
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
portion of 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
Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.
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
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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.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
L. Petitions for Judicial Review
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by June 16, 2023. Filing a petition for
reconsideration by the Administrator of this final action does not
affect the finality of this action for the purposes of judicial review
nor does it extend the time within which a petition for judicial review
may be filed and shall not postpone the effectiveness of such action.
This action pertaining to the disapproval of these portions of
Delaware's November 22, 2016, submittal, may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Volatile
organic compounds.
Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2023-23242 Filed 10-20-23; 8:45 am]
BILLING CODE 6560-50-P
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