Proposed Rule2024-18174
Approval and Promulgation of Air Quality Implementation Plans; Delaware; Regional Haze State Implementation Plan for the Second Implementation Period
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
August 19, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA or "the Agency") is proposing to approve the regional haze State implementation plan (SIP) revision submitted by Delaware on August 8, 2022, and supplemented on March 7, 2024, as satisfying applicable requirements under the Clean Air Act (CAA) and EPA's Regional Haze Rule (RHR) for the program's second implementation period. Delaware's SIP submission addresses the requirement that States must periodically revise their long-term strategies for making reasonable progress towards the national goal of preventing any future, and remedying any existing, anthropogenic impairment of visibility, including regional haze, in mandatory Class I Federal areas. The SIP submission also addresses other applicable requirements for the second implementation period of the regional haze program. EPA is taking this action pursuant to sections 110 and 169A of the CAA.
Full Text
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<title>Federal Register, Volume 89 Issue 160 (Monday, August 19, 2024)</title>
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[Federal Register Volume 89, Number 160 (Monday, August 19, 2024)]
[Proposed Rules]
[Pages 67018-67040]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18174]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2023-0301; FRL-10191-01-R3]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware; Regional Haze State Implementation Plan for the Second
Implementation Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA or ``the Agency'') is
proposing to approve the regional haze State implementation plan (SIP)
revision submitted by Delaware on August 8, 2022, and supplemented on
March 7, 2024, as satisfying applicable requirements under the Clean
Air Act (CAA) and EPA's Regional Haze Rule (RHR) for the program's
second implementation period. Delaware's SIP submission addresses the
requirement that States must periodically revise their long-term
strategies for making reasonable progress towards the national goal of
preventing any future, and remedying any existing, anthropogenic
impairment of visibility, including regional haze, in mandatory Class I
Federal areas. The SIP submission also addresses other applicable
requirements for the second implementation period of the regional haze
program. EPA is taking this action pursuant to sections 110 and 169A of
the CAA.
DATES: Written comments must be received on or before September 18,
2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2023-0301 at <a href="http://www.regulations.gov">www.regulations.gov</a>. For comments submitted at
<a href="http://www.regulations.gov">www.regulations.gov</a>, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://www.regulations.gov">www.regulations.gov</a>. For either manner of submission, the 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. The 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: Adam Yarina, U.S. Environmental
Protection Agency, 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) 814-2108. Mr. Yarina can also be reached via electronic mail at
<a href="/cdn-cgi/l/email-protection#562f37243f3837783732373b1633263778313920"><span class="__cf_email__" data-cfemail="750c14071c1b145b14111418351005145b121a03">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What action is EPA proposing?
II. Background and Requirements for Regional Haze Plans
A. Regional Haze Background
B. Roles of Agencies in Addressing Regional Haze
III. Requirements for Regional Haze Plans for the Second
Implementation Period
A. Identification of Class I Areas
B. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
C. Long-Term Strategy for Regional Haze
D. Reasonable Progress Goals
E. Monitoring Strategy and Other State Implementation Plan
Requirements
F. Requirements for Periodic Reports Describing Progress Towards
the Reasonable Progress Goals
G. Requirements for State and Federal Land Manager Coordination
IV. EPA's Evaluation of Delaware's Regional Haze Submission for the
Second Implementation Period
A. Background on Delaware's First Implementation Period SIP
Submission
[[Page 67019]]
B. Delaware's Second Implementation Period SIP Submission and
EPA's Evaluation
C. Identification of Class I Areas
D. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
E. Long-Term Strategy for Regional Haze
a. Delaware's Response to the Six MANE-VU Asks
b. EPA's Evaluation of Delaware's Response to the Six MANE-VU
Asks and Compliance With 40 CFR 51.308(f)(2)(i)
c. Additional Long-Term Strategy Requirements
F. Reasonable Progress Goals
G. Monitoring Strategy and Other Implementation Plan
Requirements
H. Requirements for Periodic Reports Describing Progress Towards
the Reasonable Progress Goals
I. Requirements for State and Federal Land Manager Coordination
V. Proposed Action
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews
I. What action is EPA proposing?
On August 8, 2022, the Delaware Department of Natural Resources and
Environmental Control (DNREC) submitted a revision to its SIP to
address regional haze for the second implementation period; with a
supplement submitted on March 7, 2024. DNREC made this SIP submission
to satisfy the requirements of the CAA's regional haze program pursuant
to CAA sections 169A and 169B and 40 CFR 51.308. EPA is proposing to
find that the Delaware regional haze SIP submission for the second
implementation period meets the applicable statutory and regulatory
requirements and thus proposes to approve Delaware's submission into
its SIP.
II. Background and Requirements for Regional Haze Plans
A. Regional Haze Background
In the 1977 CAA Amendments, Congress created a program for
protecting visibility in the nation's mandatory Class I Federal areas,
which include certain national parks and wilderness areas.\1\ CAA 169A.
The CAA establishes as a national goal the ``prevention of any future,
and the remedying of any existing, impairment of visibility in
mandatory Class I Federal areas which impairment results from manmade
air pollution.'' CAA 169A(a)(1). The CAA further directs EPA to
promulgate regulations to assure reasonable progress toward meeting
this national goal. CAA 169A(a)(4). On December 2, 1980, EPA
promulgated regulations to address visibility impairment in mandatory
Class I Federal areas (hereinafter referred to as ``Class I Areas'')
that is ``reasonably attributable'' to a single source or small group
of sources. (45 FR 80084, December 2, 1980). These regulations,
codified at 40 Code of Federal Regulations (CFR) 51.300 through 51.307,
represented the first phase of EPA's efforts to address visibility
impairment. In 1990, Congress added section 169B to the CAA to further
address visibility impairment, specifically, impairment from regional
haze. CAA 169B. EPA promulgated the RHR, codified at 40 CFR 51.308,\2\
on July 1, 1999. (64 FR 35714, July 1, 1999). These regional haze
regulations are a central component of EPA's comprehensive visibility
protection program for Class I Areas.
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\1\ Areas statutorily designated as mandatory Class I Federal
areas consist of national parks exceeding 6,000 acres, wilderness
areas and national memorial parks exceeding 5,000 acres, and all
international parks that were in existence on August 7, 1977. CAA
162(a). There are 156 mandatory Class I Areas. The list of areas to
which the requirements of the visibility protection program apply is
in 40 CFR part 81, subpart D.
\2\ In addition to the generally applicable regional haze
provisions at 40 CFR 51.308, EPA also promulgated regulations
specific to addressing regional haze visibility impairment in Class
I Areas on the Colorado Plateau at 40 CFR 51.309. The latter
regulations are applicable only for specific jurisdictions' regional
haze plans submitted no later than December 17, 2007, and thus are
not relevant here.
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Regional haze is visibility impairment that is produced by a
multitude of anthropogenic sources and activities which are located
across a broad geographic area and that emit pollutants that impair
visibility. Visibility impairing pollutants include fine and coarse
particulate matter (PM) (e.g., sulfates, nitrates, organic carbon,
elemental carbon, and soil dust) and their precursors (e.g., sulfur
dioxide (SO<INF>2</INF>), nitrogen oxides (NO<INF>X</INF>), and, in
some cases, volatile organic compounds (VOC) and ammonia
(NH<INF>3</INF>)). Fine particle precursors react in the atmosphere to
form fine particulate matter (PM<INF>2.5</INF>), which impairs
visibility by scattering and absorbing light. Visibility impairment
reduces the perception of clarity and color, as well as visible
distance.\3\
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\3\ There are several ways to measure the amount of visibility
impairment, i.e., haze. One such measurement is the deciview, which
is the principal metric used by the RHR. Under many circumstances, a
change in one deciview will be perceived by the human eye to be the
same on both clear and hazy days. The deciview is unitless. It is
proportional to the logarithm of the atmospheric extinction of
light, which is the perceived dimming of light due to its being
scattered and absorbed as it passes through the atmosphere.
Atmospheric light extinction (b\ext\) is a metric used to express
visibility and is measured in inverse megameters (Mm-1). The EPA's
Guidance on Regional Haze State Implementation Plans for the Second
Implementation Period (``2019 Guidance'') offers the flexibility for
the use of light extinction in certain cases. Light extinction can
be simpler to use in calculations than deciviews since it is not a
logarithmic function. See, e.g., 2019 Guidance at 16, 19,
<a href="http://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period">www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period</a>, The EPA Office of Air Quality
Planning and Standards, Research Triangle Park (August 20, 2019).
The formula for the deciview is 10 ln (b\ext\)/10 Mm-1). 40 CFR
51.301.
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To address regional haze visibility impairment, the 1999 RHR
established an iterative planning process that requires both States in
which Class I Areas are located and States ``the emissions from which
may reasonably be anticipated to cause or contribute to any impairment
of visibility'' in a Class I Area to periodically submit SIP revisions
to address such impairment. CAA 169A(b)(2); \4\ see also 40 CFR
51.308(b), (f) (establishing submission dates for iterative regional
haze SIP revisions); (64 FR 35714 at 35768, July 1, 1999). Under the
CAA, each SIP submission must contain ``a long-term (ten to fifteen
years) strategy for making reasonable progress toward meeting the
national goal,'' CAA 169A(b)(2)(B); the initial round of SIP
submissions also had to address the statutory requirement that certain
older, larger sources of visibility impairing pollutants install and
operate the best available retrofit technology (BART). CAA
169A(b)(2)(A); 40 CFR 51.308(d), (e). States' first regional haze SIPs
were due by December 17, 2007, 40 CFR 51.308(b), with subsequent SIP
submissions containing updated long-term strategies originally due July
31, 2018, and every ten years thereafter. (64 FR 35714 at 35768, July
1, 1999). EPA established in the 1999 RHR that all States either have
Class I Areas within their borders or ``contain sources whose emissions
are reasonably anticipated to contribute to regional haze in a Class I
Area''; therefore, all States must submit regional haze SIPs.\5\ Id. at
35721.
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\4\ The RHR expresses the statutory requirement for states to
submit plans addressing out-of-state Class I Areas by providing that
states must address visibility impairment ``in each mandatory Class
I Federal area located outside the State that may be affected by
emissions from within the State.'' 40 CFR 51.308(d), (f).
\5\ In addition to each of the fifty states, the EPA also
concluded that the Virgin Islands and District of Columbia must also
submit regional haze SIPs because they either contain a Class I area
or contain sources whose emissions are reasonably anticipated to
contribute regional haze in a Class I area. See 40 CFR 51.300(b),
(d)(3).
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Much of the focus in the first implementation period of the
regional haze program, which ran from 2007 through 2018, was on
satisfying States' BART obligations. First implementation period SIPs
were additionally required to contain long-term strategies for making
reasonable progress toward the
[[Page 67020]]
national visibility goal, of which BART is one component. The core
required elements for the first implementation period SIPs (other than
BART) are laid out in 40 CFR 51.308(d). Those provisions required that
States containing Class I Areas establish reasonable progress goals
(RPGs) that are measured in deciviews and reflect the anticipated
visibility conditions at the end of the implementation period including
from implementation of States' long-term strategies. The first planning
period RPGs were required to provide for an improvement in visibility
for the most impaired days over the period of the implementation plan
and ensure no degradation in visibility for the least impaired days
over the same period. In establishing the RPGs for any Class I Area in
a State, the State was required to consider four statutory factors: the
costs of compliance, the time necessary for compliance, the energy and
non-air quality environmental impacts of compliance, and the remaining
useful life of any potentially affected sources. CAA 169A(g)(1); 40 CFR
51.308(d)(1).
States were also required to calculate baseline (using the five
year period of 2000-2004) and natural visibility conditions (i.e.,
visibility conditions without anthropogenic visibility impairment) for
each Class I Area, and to calculate the linear rate of progress needed
to attain natural visibility conditions, assuming a starting point of
baseline visibility conditions in 2004 and ending with natural
conditions in 2064. This linear interpolation is known as the uniform
rate of progress (URP) and is used as a tracking metric to help States
assess the amount of progress they are making towards the national
visibility goal over time in each Class I Area.\6\ 40 CFR
51.308(d)(1)(i)(B), (d)(2). The 1999 RHR also provided that States'
long-term strategies must include the ``enforceable emissions
limitations, compliance schedules, and other measures as necessary to
achieve the reasonable progress goals.'' 40 CFR 51.308(d)(3). In
establishing their long-term strategies, States are required to consult
with other States that also contribute to visibility impairment in a
given Class I Area and include all measures necessary to obtain their
shares of the emission reductions needed to meet the RPGs. 40 CFR
51.308(d)(3)(i) and (ii). Section 51.308(d) also contains seven
additional factors States must consider in formulating their long-term
strategies, 40 CFR 51.308(d)(3)(v), as well as provisions governing
monitoring and other implementation plan requirements. 40 CFR
51.308(d)(4). Finally, the 1999 RHR required States to submit periodic
progress reports--SIP revisions due every five years that contain
information on States' implementation of their regional haze plans and
an assessment of whether anything additional is needed to make
reasonable progress, see 40 CFR 51.308(g), (h)--and to consult with the
Federal Land Manager(s) \7\ (FLMs) responsible for each Class I Area
according to the requirements in CAA 169A(d) and 40 CFR 51.308(i).
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\6\ EPA established the URP framework in the 1999 RHR to provide
``an equitable analytical approach'' to assessing the rate of
visibility improvement at Class I Areas across the country. The
start point for the URP analysis is 2004 and the endpoint was
calculated based on the amount of visibility improvement that was
anticipated to result from implementation of existing CAA programs
over the period from the mid-1990s to approximately 2005. Assuming
this rate of progress would continue into the future, EPA determined
that natural visibility conditions would be reached in 60 years, or
2064 (60 years from the baseline starting point of 2004). However,
EPA did not establish 2064 as the year by which the national goal
must be reached. 64 FR 35714 at 35731-32, July 1, 1999. That is, the
URP and the 2064 date are not enforceable targets, but are rather
tools that ``allow for analytical comparisons between the rate of
progress that would be achieved by the state's chosen set of control
measures and the URP.'' (82 FR 3078 at 3084, January 10, 2017).
\7\ EPA's regulations define ``Federal Land Manager'' as ``the
Secretary of the department with authority over the Federal Class I
area (or the Secretary's designee) or, with respect to Roosevelt-
Campobello International Park, the Chairman of the Roosevelt-
Campobello International Park Commission.'' 40 CFR 51.301.
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On January 10, 2017, EPA promulgated revisions to the RHR, (82 FR
3078, January 10, 2017), that apply for the second and subsequent
implementation periods. The 2017 rule made several changes to the
requirements for regional haze SIPs to clarify States' obligations and
streamline certain regional haze requirements. The revisions to the
regional haze program for the second and subsequent implementation
periods focused on the requirement that States' SIPs contain long-term
strategies for making reasonable progress towards the national
visibility goal. The reasonable progress requirements as revised in the
2017 rule (referred to here as the ``2017 RHR Revisions'') are codified
at 40 CFR 51.308(f). Among other changes, the 2017 RHR Revisions
adjusted the deadline for States to submit their second implementation
period SIPs from July 31, 2018 to July 31, 2021, clarified the order of
analysis and the relationship between RPGs and the long-term strategy,
and focused on making visibility improvements on the days with the most
anthropogenic visibility impairment, as opposed to the days with the
most visibility impairment overall. EPA also revised requirements of
the visibility protection program related to periodic progress reports
and FLM consultation. The specific requirements applicable to second
implementation period regional haze SIP submissions are addressed in
detail below.
EPA provided guidance to the States for their second implementation
period SIP submissions in the preamble to the 2017 RHR Revisions as
well as in subsequent, stand-alone guidance documents. In August 2019,
the EPA issued ``Guidance on Regional Haze State Implementation Plans
for the Second Implementation Period'' (``2019 Guidance'').\8\ On July
8, 2021, EPA issued a memorandum containing ``Clarifications Regarding
Regional Haze State Implementation Plans for the Second Implementation
Period'' (``2021 Clarifications Memo'').\9\ Additionally, EPA further
clarified the recommended procedures for processing ambient visibility
data and optionally adjusting the URP to account for international
anthropogenic and prescribed fire impacts in two technical guidance
documents: the December 2018 ``Technical Guidance on Tracking
Visibility Progress for the Second Implementation Period of the
Regional Haze Program'' (``2018 Visibility Tracking Guidance''),\10\
and the June 2020 ``Recommendation for the Use of Patched and
Substituted Data and Clarification of Data Completeness for Tracking
Visibility Progress for the Second Implementation Period of the
Regional Haze Program'' and associated Technical Addendum (``2020 Data
Completeness Memo'').\11\
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\8\ Guidance on Regional Haze State Implementation Plans for the
Second Implementation Period. <a href="http://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period">www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period</a>. The EPA Office of Air Quality Planning and Standards,
Research Triangle Park (August 20, 2019).
\9\ Clarifications Regarding Regional Haze State Implementation
Plans for the Second Implementation Period. <a href="http://www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf">www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf</a>.
The EPA Office of Air Quality Planning and Standards, Research
Triangle Park (July 8, 2021).
\10\ Technical Guidance on Tracking Visibility Progress for the
Second Implementation Period of the Regional Haze Program.
<a href="http://www.epa.gov/visibility/technical-guidance-tracking-visibility-progress-second-implementation-period-regional">www.epa.gov/visibility/technical-guidance-tracking-visibility-progress-second-implementation-period-regional</a>. The EPA Office of
Air Quality Planning and Standards, Research Triangle Park.
(December 20, 2018).
\11\ Recommendation for the Use of Patched and Substituted Data
and Clarification of Data Completeness for Tracking Visibility
Progress for the Second Implementation Period of the Regional Haze
Program. <a href="http://www.epa.gov/visibility/memo-and-technical-addendum-ambient-data-usage-and-completeness-regional-haze-program">www.epa.gov/visibility/memo-and-technical-addendum-ambient-data-usage-and-completeness-regional-haze-program</a>. The EPA Office of
Air Quality Planning and Standards, Research Triangle Park (June 3,
2020).
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[[Page 67021]]
As previously explained in the 2021 Clarifications Memo, EPA
intends the second implementation period of the regional haze program
to secure meaningful reductions in visibility impairing pollutants that
build on the significant progress States have achieved to date. The
Agency also recognizes that analyses regarding reasonable progress are
State-specific and that, based on States' and sources' individual
circumstances, what constitutes reasonable reductions in visibility
impairing pollutants will vary from state-to-state. While there exist
many opportunities for States to leverage both ongoing and upcoming
emission reductions under other CAA programs, the Agency expects States
to undertake rigorous reasonable progress analyses that identify
further opportunities to advance the national visibility goal
consistent with the statutory and regulatory requirements. See
generally 2021 Clarifications Memo. This is consistent with Congress'
determination that a visibility protection program is needed in
addition to the CAA's National Ambient Air Quality Standards and
Prevention of Significant Deterioration programs, as further emission
reductions may be necessary to adequately protect visibility in Class I
Areas throughout the country.\12\
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\12\ See, e.g., H.R. Rep No. 95-294 at 205 (``In determining how
to best remedy the growing visibility problem in these areas of
great scenic importance, the committee realizes that as a matter of
equity, the national ambient air quality standards cannot be revised
to adequately protect visibility in all areas of the country.''),
(``the mandatory class I increments of [the PSD program] do not
adequately protect visibility in Class I Areas'').
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B. Roles of Agencies in Addressing Regional Haze
Because the air pollutants and pollution affecting visibility in
Class I Areas can be transported over long distances, successful
implementation of the regional haze program requires long-term,
regional coordination among multiple jurisdictions and agencies that
have responsibility for Class I Areas and the emissions that impact
visibility in those areas. In order to address regional haze, States
need to develop strategies in coordination with one another,
considering the effect of emissions from one jurisdiction on the air
quality in another. Five regional planning organizations (RPOs),\13\
which include representation from State and Tribal governments, EPA,
and FLMs, were developed in the lead-up to the first implementation
period to address regional haze. RPOs evaluate technical information to
better understand how emissions from State and Tribal land impact Class
I Areas across the country, pursue the development of regional
strategies to reduce emissions of particulate matter and other
pollutants leading to regional haze, and help States meet the
consultation requirements of the RHR.
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\13\ RPOs are sometimes also referred to as ``multi-
jurisdictional organizations,'' or MJOs. For the purposes of this
rulemaking, the terms RPO and MJO are synonymous.
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The Mid-Atlantic/Northeast Visibility Union (MANE-VU), one of the
five RPOs described above, is a collaborative effort of State
governments, Tribal governments, and various Federal agencies
established to initiate and coordinate activities associated with the
management of regional haze, visibility, and other air quality issues
in the Mid-Atlantic and Northeast corridor of the United States. Member
States and Tribal governments (listed alphabetically) include:
Connecticut, Delaware, the District of Columbia, Maine, Maryland,
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania,
Penobscot Indian Nation, Rhode Island, St. Regis Mohawk Tribe, and
Vermont. The Federal partner members of MANE-VU are EPA, U.S. National
Parks Service (NPS), U.S. Fish and Wildlife Service (FWS), and U.S.
Forest Service (USFS).
III. Requirements for Regional Haze Plans for the Second Implementation
Period
Under the CAA and EPA's regulations, all 50 States, the District of
Columbia, and the U.S. Virgin Islands are required to submit regional
haze SIPs satisfying the applicable requirements for the second
implementation period of the regional haze program by July 31, 2021.
Each State's SIP must contain a long-term strategy for making
reasonable progress toward meeting the national goal of remedying any
existing and preventing any future anthropogenic visibility impairment
in Class I Areas. CAA 169A(b)(2)(B). To this end, 40 CFR 51.308(f) lays
out the process by which States determine what constitutes their long-
term strategies, with the order of the requirements in 40 CFR
51.308(f)(1) through (3) generally mirroring the order of the steps in
the reasonable progress analysis \14\ and paragraphs (f)(4) through (6)
containing additional, related requirements. Broadly speaking, a State
first must identify the Class I Areas within the State and determine
the Class I Areas outside the State in which visibility may be affected
by emissions from the State. These are the Class I Areas that must be
addressed in the State's long-term strategy. See 40 CFR 51.308(f),
(f)(2). For each Class I Area within its borders, a State must then
calculate the baseline, current, and natural visibility conditions for
that area, as well as the visibility improvement made to date and the
URP. See 40 CFR 51.308(f)(1). Each State having a Class I Area and/or
emissions that may affect visibility in a Class I Area must then
develop a long-term strategy that includes the enforceable emission
limitations, compliance schedules, and other measures that are
necessary to make reasonable progress in such areas. A reasonable
progress determination is based on applying the four factors in CAA
section 169A(g)(1) to sources of visibility-impairing pollutants that
the State has selected to assess for controls for the second
implementation period. See 40 CFR 51.308(f)(2). A State evaluates
potential emission reduction measures for those selected sources and
determines which are necessary to make reasonable progress. Those
measures are then incorporated into the State's long-term strategy.
After a State has developed its long-term strategy, it then establishes
RPGs for each Class I Area within its borders by modeling the
visibility impacts of all reasonable progress controls at the end of
the second implementation period, i.e., in 2028, as well as the impacts
of other requirements of the CAA. The RPGs include reasonable progress
controls not only for sources in the State in which the Class I Area is
located, but also for sources in other States that contribute to
visibility impairment in that area. The RPGs are then compared to the
baseline visibility conditions and the URP to ensure that progress is
being made towards the statutory goal of preventing any future and
remedying any existing anthropogenic visibility impairment in Class I
Areas. 40 CFR 51.308(f)(2) and (3).
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\14\ EPA explained in the 2017 RHR Revisions that we were
adopting new regulatory language in 40 CFR 51.308(f) that, unlike
the structure in 40 CFR 51.308(d), ``tracked the actual planning
sequence.'' (82 FR 3078 at 3091, January 10, 2017).
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In addition to satisfying the requirements at 40 CFR 51.308(f)
related to reasonable progress, the regional haze SIP revisions for the
second implementation period must address the requirements in 40 CFR
51.308(g)(1) through (5) pertaining to periodic reports describing
progress towards the RPGs, 40 CFR 51.308(f)(5), as well as requirements
for FLM consultation that apply to all visibility protection SIPs and
SIP revisions. 40 CFR 51.308(i).
A State must submit its regional haze SIP and subsequent SIP
revisions to
[[Page 67022]]
EPA according to the requirements applicable to all SIP revisions under
the CAA and EPA's regulations. See CAA 169A(b)(2); CAA 110(a). Upon EPA
approval, a SIP is enforceable by the Agency and the public under the
CAA. If EPA finds that a State fails to make a required SIP revision,
or if EPA finds that a State's SIP is incomplete or disapproves the
SIP, the Agency must promulgate a Federal implementation plan (FIP)
that satisfies the applicable requirements. CAA 110(c)(1).
A. Identification of Class I Areas
The first step in developing a regional haze SIP is for a State to
determine which Class I Areas, in addition to those within its borders,
``may be affected'' by emissions from within the State. In the 1999
RHR, EPA determined that all States contribute to visibility impairment
in at least one Class I Area, 64 FR 35714 at 35720-22 (July 1, 1999),
and explained that the statute and regulations lay out an ``extremely
low triggering threshold'' for determining ``whether States should be
required to engage in air quality planning and analysis as a
prerequisite to determining the need for control of emissions from
sources within their State.'' Id. at 35721.
A State must determine which Class I Areas must be addressed by its
SIP by evaluating the total emissions of visibility impairing
pollutants from all sources within the State. While the RHR does not
require this evaluation to be conducted in any particular manner, EPA's
2019 Guidance provides recommendations for how such an assessment might
be accomplished, including by, where appropriate, using the
determinations previously made for the first implementation period.
2019 Guidance at 8-9. In addition, the determination of which Class I
Areas may be affected by a State's emissions is subject to the
requirement in 40 CFR 51.308(f)(2)(iii) to ``document the technical
basis, including modeling, monitoring, cost, engineering, and emissions
information, on which the State is relying to determine the emission
reduction measures that are necessary to make reasonable progress in
each mandatory Class I Federal Area it affects.''
B. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
As part of assessing whether a SIP submission for the second
implementation period is providing for reasonable progress towards the
national visibility goal, the RHR contains requirements in 40 CFR
51.308(f)(1) related to tracking visibility improvement over time. The
requirements of this section apply only to States having Class I Areas
within their borders; the required calculations must be made for each
such Class I Area. EPA's 2018 Visibility Tracking Guidance \15\
provides recommendations to assist States in satisfying their
obligations under 40 CFR 51.308(f)(1); specifically, in developing
information on baseline, current, and natural visibility conditions,
and in making optional adjustments to the URP to account for the
impacts of international anthropogenic emissions and prescribed fires.
See 82 FR 3078 at 3103-05 (January 10, 2017).
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\15\ The 2018 Visibility Tracking Guidance references and relies
on parts of the 2003 Tracking Guidance: ``Guidance for Tracking
Progress Under the Regional Haze Rule,'' which can be found at
<a href="http://www.epa.gov/sites/default/files/2021-03/documents/tracking.pdf">www.epa.gov/sites/default/files/2021-03/documents/tracking.pdf</a>.
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The RHR requires tracking of visibility conditions on two sets of
days: the clearest and the most impaired days. Visibility conditions
for both sets of days are expressed as the average deciview index for
the relevant five-year period (the period representing baseline or
current visibility conditions). The RHR provides that the relevant sets
of days for visibility tracking purposes are the 20% clearest (the 20%
of monitored days in a calendar year with the lowest values of the
deciview index) and 20% most impaired days (the 20% of monitored days
in a calendar year with the highest amounts of anthropogenic visibility
impairment).\16\ 40 CFR 51.301. A State must calculate visibility
conditions for both the 20% clearest and 20% most impaired days for the
baseline period of 2000-2004 and the most recent five-year period for
which visibility monitoring data are available (representing current
visibility conditions). 40 CFR 51.308(f)(1)(i) and (iii). States must
also calculate natural visibility conditions for the clearest and most
impaired days,\17\ by estimating the conditions that would exist on
those two sets of days absent anthropogenic visibility impairment. 40
CFR 51.308(f)(1)(ii). Using all these data, States must then calculate,
for each Class I Area, the amount of progress made since the baseline
period (2000-2004) and how much improvement is left to achieve in order
to reach natural visibility conditions.
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\16\ This rulemaking also refers to the 20% clearest and 20%
most anthropogenically impaired days as the ``clearest'' and ``most
impaired'' or ``most anthropogenically impaired'' days,
respectively.
\17\ The RHR at 40 CFR 51.308(f)(1)(ii) contains an error
related to the requirement for calculating two sets of natural
conditions values. The rule says ``most impaired days or the
clearest days'' where it should say ``most impaired days and
clearest days.'' This is an error that was intended to be corrected
in the 2017 RHR Revisions but did not get corrected in the final
rule language. This is supported by the preamble text at 82 FR 3078
at 3098: ``In the final version of 40 CFR 51.308(f)(1)(ii), an
occurrence of ``or'' has been corrected to ``and'' to indicate that
natural visibility conditions for both the most impaired days and
the clearest days must be based on available monitoring
information.''
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Using the data for the set of most impaired days only, States must
plot a line between visibility conditions in the baseline period and
natural visibility conditions for each Class I Area to determine the
URP--the amount of visibility improvement, measured in deciviews, that
would need to be achieved during each implementation period in order to
achieve natural visibility conditions by the end of 2064. The URP is
used in later steps of the reasonable progress analysis for
informational purposes and to provide a non-enforceable benchmark
against which to assess a Class I Area's rate of visibility
improvement.\18\ Additionally, in the 2017 RHR Revisions, EPA provided
States the option of proposing to adjust the endpoint of the URP to
account for impacts of anthropogenic sources outside the United States
and/or impacts of certain types of wildland prescribed fires. These
adjustments, which must be approved by EPA, are intended to avoid any
perception that States should compensate for impacts from international
anthropogenic sources and to give States the flexibility to determine
that limiting the use of wildland-prescribed fire is not necessary for
reasonable progress. See 82 FR 3078 at 3107, January 10, 2017, footnote
116.
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\18\ Being on or below the URP is not a ``safe harbor''; i.e.,
achieving the URP does not mean that a Class I area is making
``reasonable progress'' and does not relieve a state from using the
four statutory factors to determine what level of control is needed
to achieve such progress. See, e.g., 82 FR 3078 at 3093 (January 10,
2017).
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EPA's 2018 Visibility Tracking Guidance can be used to help satisfy
the 40 CFR 51.308(f)(1) requirements, including in developing
information on baseline, current, and natural visibility conditions,
and in making optional adjustments to the URP. In addition, the 2020
Data Completeness Memo provides recommendations on the data
completeness language referenced in 40 CFR 51.308(f)(1)(i) and provides
updated natural conditions estimates for each Class I Area.
C. Long-Term Strategy for Regional Haze
The core component of a regional haze SIP submission is a long-term
strategy that addresses regional haze in each Class I Area within a
State's
[[Page 67023]]
borders and each Class I Area that may be affected by emissions from
the State. The long-term strategy ``must include the enforceable
emissions limitations, compliance schedules, and other measures that
are necessary to make reasonable progress, as determined pursuant to
(f)(2)(i) through (iv).'' 40 CFR 51.308(f)(2). The amount of progress
that is ``reasonable progress'' is based on applying the four statutory
factors in CAA section 169A(g)(1) in an evaluation of potential control
options for sources of visibility impairing pollutants, which is
referred to as a ``four-factor'' analysis. The outcome of that analysis
is the emission reduction measures that a particular source or group of
sources needs to implement in order to make reasonable progress towards
the national visibility goal. See 40 CFR 51.308(f)(2)(i). Emission
reduction measures that are necessary to make reasonable progress may
be either new, additional control measures for a source, or they may be
the existing emission reduction measures that a source is already
implementing. See 2019 Guidance at 43; 2021 Clarifications Memo at 8-
10. Such measures must be represented by ``enforceable emissions
limitations, compliance schedules, and other measures'' (i.e., any
additional compliance tools) in a State's long-term strategy in its
SIP. 40 CFR 51.308(f)(2).
Section 51.308(f)(2)(i) provides the requirements for the four-
factor analysis. The first step of this analysis entails selecting the
sources to be evaluated for emission reduction measures; to this end,
the RHR requires States to consider ``major and minor stationary
sources or groups of sources, mobile sources, and area sources'' of
visibility impairing pollutants for potential four-factor control
analysis. 40 CFR 51.308(f)(2)(i). A threshold question at this step is
which visibility impairing pollutants will be analyzed. As EPA
previously explained, consistent with the first implementation period,
EPA generally expects that each State will analyze at least
SO<INF>2</INF> and NO<INF>X</INF> in selecting sources and determining
control measures. See 2019 Guidance at 12, 2021 Clarifications Memo at
4. A State that chooses not to consider at least these two pollutants
should demonstrate why such consideration would be unreasonable. 2021
Clarifications Memo at 4.
While States have the option to analyze all sources, the 2019
Guidance explains that ``an analysis of control measures is not
required for every source in each implementation period,'' and that
``[s]electing a set of sources for analysis of control measures in each
implementation period is . . . consistent with the Regional Haze Rule,
which sets up an iterative planning process and anticipates that a
State may not need to analyze control measures for all its sources in a
given SIP revision.'' 2019 Guidance at 9. However, given that source
selection is the basis of all subsequent control determinations, a
reasonable source selection process ``should be designed and conducted
to ensure that source selection results in a set of pollutants and
sources the evaluation of which has the potential to meaningfully
reduce their contributions to visibility impairment.'' 2021
Clarifications Memo at 3.
EPA explained in the 2021 Clarifications Memo that each State has
an obligation to submit a long-term strategy that addresses the
regional haze visibility impairment that results from emissions from
within that State. Thus, source selection should focus on the in-State
contribution to visibility impairment and be designed to capture a
meaningful portion of the State's total contribution to visibility
impairment in Class I Areas. A State should not decline to select its
largest in-State sources on the basis that there are even larger out-
of-State contributors. 2021 Clarifications Memo at 4.\19\
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\19\ Similarly, in responding to comments on the 2017 RHR
Revisions EPA explained that ``[a] state should not fail to address
its many relatively low-impact sources merely because it only has
such sources and another state has even more low-impact sources and/
or some high impact sources.'' Responses to Comments on Protection
of Visibility: Amendments to Requirements for State Plans; Proposed
Rule (81 FR 26942, May 4, 2016) at 26987-26988.
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Thus, while States have discretion to choose any source selection
methodology that is reasonable, whatever choices they make should be
reasonably explained. To this end, 40 CFR 51.308(f)(2)(i) requires that
a State's SIP submission include ``a description of the criteria it
used to determine which sources or groups of sources it evaluated.''
The technical basis for source selection, which may include methods for
quantifying potential visibility impacts such as emissions divided by
distance metrics, trajectory analyses, residence time analyses, and/or
photochemical modeling, must also be appropriately documented, as
required by 40 CFR 51.308(f)(2)(iii).
Once a State has selected the set of sources, the next step is to
determine the emissions reduction measures for those sources that are
necessary to make reasonable progress for the second implementation
period.\20\ This is accomplished by considering the four factors--``the
costs of compliance, the time necessary for compliance, and the energy
and nonair quality environmental impacts of compliance, and the
remaining useful life of any existing source subject to such
requirements.'' CAA 169A(g)(1). EPA has explained that the four-factor
analysis is an assessment of potential emission reduction measures
(i.e., control options) for sources; ``use of the terms `compliance'
and `subject to such requirements' in section 169A(g)(1) strongly
indicates that Congress intended the relevant determination to be the
requirements with which sources would have to comply in order to
satisfy the CAA's reasonable progress mandate.'' 82 FR 3078 at 3091
(January 10, 2017). Thus, for each source it has selected for four-
factor analysis,\21\ a State must consider a ``meaningful set'' of
technically feasible control options for reducing emissions of
visibility impairing pollutants. Id. at 3088. The 2019 Guidance
provides that ``[a] state must reasonably pick and justify the measures
that it will consider, recognizing that there is no statutory or
regulatory requirement to consider all technically feasible measures or
any particular measures. A range of technically feasible measures
available to reduce emissions would be one way to justify a reasonable
set.'' 2019 Guidance at 29.
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\20\ The CAA provides that, ``[i]n determining reasonable
progress there shall be taken into consideration'' the four
statutory factors. CAA 169A(g)(1). However, in addition to four-
factor analyses for selected sources, groups of sources, or source
categories, a state may also consider additional emission reduction
measures for inclusion in its long-term strategy, e.g., from other
newly adopted, on-the-books, or on-the-way rules and measures for
sources not selected for four-factor analysis for the second
planning period.
\21\ ``Each source'' or ``particular source'' is used here as
shorthand. While a source-specific analysis is one way of applying
the four factors, neither the statute nor the RHR requires states to
evaluate individual sources. Rather, states have ``the flexibility
to conduct four-factor analyses for specific sources, groups of
sources or even entire source categories, depending on state policy
preferences and the specific circumstances of each state.'' 82 FR
3078 at 3088, January 10, 2017. However, not all approaches to
grouping sources for four-factor analysis are necessarily
reasonable; the reasonableness of grouping sources in any particular
instance will depend on the circumstances and the manner in which
grouping is conducted. If it is feasible to establish and enforce
different requirements for sources or subgroups of sources, and if
relevant factors can be quantified for those sources or subgroups,
then States should make a separate reasonable progress determination
for each source or subgroup. 2021 Clarifications Memo at 7-8.
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EPA's 2021 Clarifications Memo provides further guidance on what
constitutes a reasonable set of control options for consideration: ``A
reasonable four-factor analysis will consider the full range of
potentially reasonable options for reducing emissions.'' 2021
[[Page 67024]]
Clarifications Memo at 7. In addition to add-on controls and other
retrofits (i.e., new emission reduction measures for sources), EPA
explained that States should generally analyze efficiency improvements
for sources' existing measures as control options in their four-factor
analyses, as in many cases such improvements are reasonable given that
they typically involve only additional operation and maintenance costs.
Additionally, the 2021 Clarifications Memo provides that States that
have assumed a higher emission rate than a source has achieved or could
potentially achieve using its existing measures should also consider
lower emission rates as potential control options. That is, a State
should consider a source's recent actual and projected emission rates
to determine if it could reasonably attain lower emission rates with
its existing measures. If so, the State should analyze the lower
emission rate as a control option for reducing emissions. 2021
Clarifications Memo at 7. EPA's recommendations to analyze potential
efficiency improvements and achievable lower emission rates apply to
both sources that have been selected for four-factor analysis and those
that have forgone a four-factor analysis on the basis of existing
``effective controls.'' See 2021 Clarifications Memo at 5, 10.
After identifying a reasonable set of potential control options for
the sources it has selected, a State then collects information on the
four factors with regard to each option identified. EPA has also
explained that, in addition to the four statutory factors, States have
flexibility under the CAA and RHR to reasonably consider visibility
benefits as an additional factor alongside the four statutory
factors.\22\ The 2019 Guidance provides recommendations for the types
of information that can be used to characterize the four factors (with
or without visibility), as well as ways in which States might
reasonably consider and balance that information to determine which of
the potential control options is necessary to make reasonable progress.
See 2019 Guidance at 30-36. The 2021 Clarifications Memo contains
further guidance on how States can reasonably consider modeled
visibility impacts or benefits in the context of a four-factor
analysis. 2021 Clarifications Memo at 12-13, 14-15. Specifically, EPA
explained that while visibility can reasonably be used when comparing
and choosing between multiple reasonable control options, it should not
be used to summarily reject controls that are reasonable given the four
statutory factors. 2021 Clarifications Memo at 13. Ultimately, while
States have discretion to reasonably weigh the factors and to determine
what level of control is needed, 40 CFR 51.308(f)(2)(i) provides that a
State ``must include in its implementation plan a description of . . .
how the four factors were taken into consideration in selecting the
measure for inclusion in its long-term strategy.''
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\22\ See, e.g., Responses to Comments on Protection of
Visibility: Amendments to Requirements for State Plans; Proposed
Rule (81 FR 26942, May 4, 2016), Docket Number EPA-HQ-OAR-2015-0531,
U.S. Environmental Protection Agency at 186; 2019 Guidance at 36-37.
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As explained above, 40 CFR 51.308(f)(2)(i) requires States to
determine the emission reduction measures for sources that are
necessary to make reasonable progress by considering the four factors.
Pursuant to 40 CFR 51.308(f)(2), measures that are necessary to make
reasonable progress towards the national visibility goal must be
included in a State's long-term strategy and in its SIP.\23\ If the
outcome of a four-factor analysis is a new, additional emission
reduction measure for a source, that new measure is necessary to make
reasonable progress towards remedying existing anthropogenic visibility
impairment and must be included in the SIP. If the outcome of a four-
factor analysis is that no new measures are reasonable for a source,
continued implementation of the source's existing measures is generally
necessary to prevent future emission increases and thus to make
reasonable progress towards the second part of the national visibility
goal: preventing future anthropogenic visibility impairment. See CAA
169A(a)(1). That is, when the result of a four-factor analysis is that
no new measures are necessary to make reasonable progress, the source's
existing measures are generally necessary to make reasonable progress
and must be included in the SIP. However, there may be circumstances in
which a State can demonstrate that a source's existing measures are not
necessary to make reasonable progress. Specifically, if a State can
demonstrate that a source will continue to implement its existing
measures and will not increase its emission rate, it may not be
necessary to have those measures in the long-term strategy in order to
prevent future emission increases and future visibility impairment.
EPA's 2021 Clarifications Memo provides further explanation and
guidance on how States may demonstrate that a source's existing
measures are not necessary to make reasonable progress. See 2021
Clarifications Memo at 8-10. If the State can make such a
demonstration, it need not include a source's existing measures in the
long-term strategy or its SIP.
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\23\ States may choose to, but are not required to, include
measures in their long-term strategies beyond just the emission
reduction measures that are necessary for reasonable progress. See
2021 Clarifications Memo at 16. For example, states with smoke
management programs may choose to submit their smoke management
plans to EPA for inclusion in their SIPs but are not required to do
so. See, e.g., 82 FR 3078 at 3108-09, January 10, 2017 (requirement
to consider smoke management practices and smoke management programs
under 40 CFR 51.308(f)(2)(iv) does not require states to adopt such
practices or programs into their SIPs, although they may elect to do
so).
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As with source selection, the characterization of information on
each of the factors is also subject to the documentation requirement in
40 CFR 51.308(f)(2)(iii). The reasonable progress analysis, including
source selection, information gathering, characterization of the four
statutory factors (and potentially visibility), balancing of the four
factors, and selection of the emission reduction measures that
represent reasonable progress, is a technically complex exercise, but
also a flexible one that provides States with bounded discretion to
design and implement approaches appropriate to their circumstances.
Given this flexibility, 40 CFR 51.308(f)(2)(iii) plays an important
function in requiring a State to document the technical basis for its
decision making so that the public and EPA can comprehend and evaluate
the information and analysis the State relied upon to determine what
emission reduction measures must be in place to make reasonable
progress. The technical documentation must include the modeling,
monitoring, cost, engineering, and emissions information on which the
State relied to determine the measures necessary to make reasonable
progress. This documentation requirement can be met through the
provision of and reliance on technical analyses developed through a
regional planning process, so long as that process and its output has
been approved by all State participants. In addition to the explicit
regulatory requirement to document the technical basis of their
reasonable progress determinations, States are also subject to the
general principle that those determinations must be reasonably moored
to the statute.\24\ That is, a State's decisions about the emission
[[Page 67025]]
reduction measures that are necessary to make reasonable progress must
be consistent with the statutory goal of remedying existing and
preventing future visibility impairment.
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\24\ See Arizona ex rel. Darwin v. U.S. EPA, 815 F.3d 519, 531
(9th Cir. 2016); Nebraska v. U.S. EPA, 812 F.3d 662, 668 (8th Cir.
2016); North Dakota v. EPA, 730 F.3d 750, 761 (8th Cir. 2013);
Oklahoma v. EPA, 723 F.3d 1201, 1206, 1208-10 (10th Cir. 2013); cf.
also Nat'l Parks Conservation Ass'n v. EPA, 803 F.3d 151, 165 (3d
Cir. 2015); Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S.
461, 485, 490 (2004).
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The four statutory factors (and potentially visibility) are used to
determine what emission reduction measures for selected sources must be
included in a State's long-term strategy for making reasonable
progress. Additionally, the RHR at 40 CFR 51.308(f)(2)(iv) separately
provides five ``additional factors'' \25\ that States must consider in
developing their long-term strategies: (1) emission reductions due to
ongoing air pollution control programs, including measures to address
reasonably attributable visibility impairment; (2) measures to reduce
the impacts of construction activities; (3) source retirement and
replacement schedules; (4) basic smoke management practices for
prescribed fire used for agricultural and wildland vegetation
management purposes and smoke management programs; and (5) the
anticipated net effect on visibility due to projected changes in point,
area, and mobile source emissions over the period addressed by the
long-term strategy. The 2019 Guidance provides that a State may satisfy
this requirement by considering these additional factors in the process
of selecting sources for four-factor analysis, when performing that
analysis, or both, and that not every one of the additional factors
needs to be considered at the same stage of the process. See 2019
Guidance at 21. EPA provided further guidance on the five additional
factors in the 2021 Clarifications Memo, explaining that a State should
generally not reject cost-effective and otherwise reasonable controls
merely because there have been emission reductions since the first
planning period owing to other ongoing air pollution control programs
or merely because visibility is otherwise projected to improve at Class
I Areas. Additionally, States should not rely on these additional
factors to summarily assert that the State has already made sufficient
progress and, therefore, no sources need to be selected or no new
controls are needed regardless of the outcome of four-factor analyses.
2021 Clarifications Memo at 13.
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\25\ The five ``additional factors'' for consideration in 40 CFR
51.308(f)(2)(iv) are distinct from the four factors listed in CAA
section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that states must
consider and apply to sources in determining reasonable progress.
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Because the air pollution that causes regional haze crosses State
boundaries, 40 CFR 51.308(f)(2)(ii) requires a State to consult with
other States that also have emissions that are reasonably anticipated
to contribute to visibility impairment in a given Class I Area.
Consultation allows for each State that impacts visibility in an area
to share whatever technical information, analyses, and control
determinations may be necessary to develop coordinated emission
management strategies. This coordination may be managed through inter-
and intra-RPO consultation and the development of regional emissions
strategies; additional consultations between States outside of RPO
processes may also occur. If a State, pursuant to consultation, agrees
that certain measures (e.g., a certain emission limitation) are
necessary to make reasonable progress at a Class I Area, it must
include those measures in its SIP. 40 CFR 51.308(f)(2)(ii)(A).
Additionally, the RHR requires that States that contribute to
visibility impairment at the same Class I Area consider the emission
reduction measures the other contributing States have identified as
being necessary to make reasonable progress for their own sources. 40
CFR 51.308(f)(2)(ii)(B). If a State has been asked to consider or adopt
certain emission reduction measures, but ultimately determines those
measures are not necessary to make reasonable progress, that State must
document in its SIP the actions taken to resolve the disagreement. 40
CFR 51.308(f)(2)(ii)(C). EPA will consider the technical information
and explanations presented by the submitting State and the State with
which it disagrees when considering whether to approve the State's SIP.
See id.; 2019 Guidance at 53. Under all circumstances, a State must
document in its SIP submission all substantive consultations with other
contributing States. 40 CFR 51.308(f)(2)(ii)(C).
D. Reasonable Progress Goals
Reasonable progress goals ``measure the progress that is projected
to be achieved by the control measures States have determined are
necessary to make reasonable progress based on a four-factor
analysis.'' 82 FR 3078 at 3091 (January 10, 2017). Their primary
purpose is to assist the public and EPA in assessing the reasonableness
of States' long-term strategies for making reasonable progress towards
the national visibility goal. See 40 CFR 51.308(f)(3)(iii) and (iv).
States in which Class I Areas are located must establish two RPGs, both
in deciviews--one representing visibility conditions on the clearest
days and one representing visibility on the most anthropogenically
impaired days--for each area within their borders. 40 CFR
51.308(f)(3)(i). The two RPGs are intended to reflect the projected
impacts, on the two sets of days, of the emission reduction measures
the State with the Class I Area, as well as all other contributing
States, have included in their long-term strategies for the second
implementation period.\26\ The RPGs also account for the projected
impacts of implementing other CAA requirements, including non-SIP based
requirements. Because RPGs are the modeled result of the measures in
States' long-term strategies (as well as other measures required under
the CAA), they cannot be determined before States have conducted their
four-factor analyses and determined the control measures that are
necessary to make reasonable progress. See 2021 Clarifications Memo at
6.
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\26\ RPGs are intended to reflect the projected impacts of the
measures all contributing states include in their long-term
strategies. However, due to the timing of analyses, control
determinations by other states, and other on-going emissions
changes, a particular state's RPGs may not reflect all control
measures and emissions reductions that are expected to occur by the
end of the implementation period. The 2019 Guidance provides
recommendations for addressing the timing of RPG calculations when
states are developing their long-term strategies on disparate
schedules, as well as for adjusting RPGs using a post-modeling
approach. 2019 Guidance at 47-48.
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For the second implementation period, the RPGs are set for 2028.
Reasonable progress goals are not enforceable targets, 40 CFR
51.308(f)(3)(iii); rather, they ``provide a way for the states to check
the projected outcome of the [long-term strategy] against the goals for
visibility improvement.'' 2019 Guidance at 46. While States are not
legally obligated to achieve the visibility conditions described in
their RPGs, 40 CFR 51.308(f)(3)(i) requires that ``[t]he long-term
strategy and the reasonable progress goals must provide for an
improvement in visibility for the most impaired days since the baseline
period and ensure no degradation in visibility for the clearest days
since the baseline period.'' Thus, States are required to have emission
reduction measures in their long-term strategies that are projected to
achieve visibility conditions on the most impaired days that are better
than the baseline period and show no degradation on the clearest days
compared to the clearest days from the baseline period. The baseline
period for the purpose of this comparison is the baseline visibility
condition--the annual average visibility condition for the period 2000-
2004. See 40 CFR 51.308(f)(1)(i), 82 FR 3078 at 3097-98 (January 10,
2017).
So that RPGs may also serve as a metric for assessing the amount of
progress a State is making towards the
[[Page 67026]]
national visibility goal, the RHR requires States with Class I Areas to
compare the 2028 RPG for the most impaired days to the corresponding
point on the URP line (representing visibility conditions in 2028 if
visibility were to improve at a linear rate from conditions in the
baseline period of 2000-2004 to natural visibility conditions in 2064).
If the most impaired days RPG in 2028 is above the URP (i.e., if
visibility conditions are improving more slowly than the rate described
by the URP), each State that contributes to visibility impairment in
the Class I Area must demonstrate, based on the four-factor analysis
required under 40 CFR 51.308(f)(2)(i), that no additional emission
reduction measures would be reasonable to include in its long-term
strategy. 40 CFR 51.308(f)(3)(ii). To this end, 40 CFR 51.308(f)(3)(ii)
requires that each State contributing to visibility impairment in a
Class I Area that is projected to improve more slowly than the URP
provide ``a robust demonstration, including documenting the criteria
used to determine which sources or groups [of] sources were evaluated
and how the four factors required by paragraph (f)(2)(i) were taken
into consideration in selecting the measures for inclusion in its long-
term strategy.'' The 2019 Guidance provides suggestions about how such
a ``robust demonstration'' might be conducted. See 2019 Guidance at 50-
51.
The 2017 RHR, 2019 Guidance, and 2021 Clarifications Memo also
explain that projecting an RPG that is on or below the URP based on
only on-the-books and/or on-the-way control measures (i.e., control
measures already required or anticipated before the four-factor
analysis is conducted) is not a ``safe harbor'' from the CAA's and
RHR's requirement that all States must conduct a four-factor analysis
to determine what emission reduction measures constitute reasonable
progress. The URP is a planning metric used to gauge the amount of
progress made thus far and the amount left before reaching natural
visibility conditions. However, the URP is not based on consideration
of the four statutory factors and therefore cannot answer the question
of whether the amount of progress being made in any particular
implementation period is ``reasonable progress.'' See 82 FR 3078 at
3093, 3099-3100 (January 10, 2017); 2019 Guidance at 22; 2021
Clarifications Memo at 15-16.
E. Monitoring Strategy and Other State Implementation Plan Requirements
Section 51.308(f)(6) requires States to have certain strategies and
elements in place for assessing and reporting on visibility. Individual
requirements under this section apply either to States with Class I
Areas within their borders, States with no Class I Areas but that are
reasonably anticipated to cause or contribute to visibility impairment
in any Class I Area, or both. A State with Class I Areas within its
borders must submit with its SIP revision a monitoring strategy for
measuring, characterizing, and reporting regional haze visibility
impairment that is representative of all Class I Areas within the
State. SIP revisions for such States must also provide for the
establishment of any additional monitoring sites or equipment needed to
assess visibility conditions in Class I Areas, as well as reporting of
all visibility monitoring data to EPA at least annually. Compliance
with the monitoring strategy requirement may be met through a State's
participation in the Interagency Monitoring of Protected Visual
Environments (IMPROVE) monitoring network, which is used to measure
visibility impairment caused by air pollution at the 156 Class I Areas
covered by the visibility program. 40 CFR 51.308(f)(6), (f)(6)(i) and
(iv). The IMPROVE monitoring data is used to determine the 20% most
anthropogenically impaired and 20% clearest sets of days every year at
each Class I Area and tracks visibility impairment over time.
All States' SIPs must provide for procedures by which monitoring
data and other information are used to determine the contribution of
emissions from within the State to regional haze visibility impairment
in affected Class I Areas. 40 CFR 51.308(f)(6)(ii) and (iii). Section
51.308(f)(6)(v) further requires that all States' SIPs provide for a
statewide inventory of emissions of pollutants that are reasonably
anticipated to cause or contribute to visibility impairment in any
Class I Area; the inventory must include emissions for the most recent
year for which data are available and estimates of future projected
emissions. States must also include commitments to update their
inventories periodically. The inventories themselves do not need to be
included as elements in the SIP and are not subject to EPA review as
part of the Agency's evaluation of a SIP revision.\27\ All States' SIPs
must also provide for any other elements, including reporting,
recordkeeping, and other measures, that are necessary for States to
assess and report on visibility. 40 CFR 51.308(f)(6)(vi). Per the 2019
Guidance, a State may note in its regional haze SIP that its compliance
with the Air Emissions Reporting Rule (AERR) in 40 CFR part 51, subpart
A satisfies the requirement to provide for an emissions inventory for
the most recent year for which data are available. To satisfy the
requirement to provide estimates of future projected emissions, a State
may explain in its SIP how projected emissions were developed for use
in establishing RPGs for its own and nearby Class I Areas.\28\
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\27\ See ``Step 8: Additional requirements for regional haze
SIPs'' in 2019 Regional Haze Guidance at 55.
\28\ Id.
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Separate from the requirements related to monitoring for regional
haze purposes under 40 CFR 51.308(f)(6), the RHR also contains a
requirement at 40 CFR 51.308(f)(4) related to any additional monitoring
that may be needed to address visibility impairment in Class I Areas
from a single source or a small group of sources. This is called
``reasonably attributable visibility impairment.'' \29\ Under this
provision, if EPA or the FLM of an affected Class I Area has advised a
State that additional monitoring is needed to assess reasonably
attributable visibility impairment, the State must include in its SIP
revision for the second implementation period an appropriate strategy
for evaluating such impairment.
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\29\ EPA's visibility protection regulations define ``reasonably
attributable visibility impairment'' as ``visibility impairment that
is caused by the emission of air pollutants from one, or a small
number of sources.'' 40 CFR 51.301.
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F. Requirements for Periodic Reports Describing Progress Towards the
Reasonable Progress Goals
Section 51.308(f)(5) requires a State's regional haze SIP revision
to address the requirements of paragraphs 40 CFR 51.308(g)(1) through
(5) so that the plan revision due in 2021 will serve also as a progress
report addressing the period since submission of the progress report
for the first implementation period. The regional haze progress report
requirement is designed to inform the public and EPA about a State's
implementation of its existing long-term strategy and whether such
implementation is in fact resulting in the expected visibility
improvement. See 81 FR 26942, 26950 (May 4, 2016), (82 FR 3078 at 3119,
January 10, 2017). To this end, every State's SIP revision for the
second implementation period is required to describe the status of
implementation of all measures included in the State's long-term
strategy, including BART and reasonable progress emission reduction
measures from the first implementation
[[Page 67027]]
period, and the resulting emissions reductions. 40 CFR 51.308(g)(1) and
(2).
A core component of the progress report requirements is an
assessment of changes in visibility conditions on the clearest and most
impaired days. For second implementation period progress reports, 40
CFR 51.308(g)(3) requires States with Class I Areas within their
borders to first determine current visibility conditions for each area
on the most impaired and clearest days, 40 CFR 51.308(g)(3)(i), and
then to calculate the difference between those current conditions and
baseline (2000-2004) visibility conditions in order to assess progress
made to date. See 40 CFR 51.308(g)(3)(ii). States must also assess the
changes in visibility impairment for the most impaired and clearest
days since they submitted their first implementation period progress
reports. See 40 CFR 51.308(g)(3)(iii), (f)(5). Since different States
submitted their first implementation period progress reports at
different times, the starting point for this assessment will vary State
by State.
Similarly, States must provide analyses tracking the change in
emissions of pollutants contributing to visibility impairment from all
sources and activities within the State over the period since they
submitted their first implementation period progress reports. See 40
CFR 51.308(g)(4), (f)(5). Changes in emissions should be identified by
the type of source or activity. Section 51.308(g)(5) also addresses
changes in emissions since the period addressed by the previous
progress report and requires States' SIP revisions to include an
assessment of any significant changes in anthropogenic emissions within
or outside the State. This assessment must include an explanation of
whether these changes in emissions were anticipated and whether they
have limited or impeded progress in reducing emissions and improving
visibility relative to what the State projected based on its long-term
strategy for the first implementation period.
G. Requirements for State and Federal Land Manager Coordination
Clean Air Act section 169A(d) requires that before a State holds a
public hearing on a proposed regional haze SIP revision, it must
consult with the appropriate FLM or FLMs; pursuant to that
consultation, the State must include a summary of the FLMs' conclusions
and recommendations in the notice to the public. Consistent with this
statutory requirement, the RHR also requires that States ``provide the
[FLM] with an opportunity for consultation, in person and at a point
early enough in the State's policy analyses of its long-term strategy
emission reduction obligation so that information and recommendations
provided by the [FLM] can meaningfully inform the State's decisions on
the long-term strategy.'' 40 CFR 51.308(i)(2). Consultation that occurs
120 days prior to any public hearing or public comment opportunity will
be deemed ``early enough,'' but the RHR provides that in any event the
opportunity for consultation must be provided at least 60 days before a
public hearing or comment opportunity. This consultation must include
the opportunity for the FLMs to discuss their assessment of visibility
impairment in any Class I Area and their recommendations on the
development and implementation of strategies to address such
impairment. 40 CFR 51.308(i)(2). In order for EPA to evaluate whether
FLM consultation meeting the requirements of the RHR has occurred, the
SIP submission should include documentation of the timing and content
of such consultation. The SIP revision submitted to EPA must also
describe how the State addressed any comments provided by the FLMs. 40
CFR 51.308(i)(3). Finally, a SIP revision must provide procedures for
continuing consultation between the State and FLMs regarding the
State's visibility protection program, including development and review
of SIP revisions, five-year progress reports, and the implementation of
other programs having the potential to contribute to impairment of
visibility in Class I Areas. 40 CFR 51.308(i)(4).
IV. EPA's Evaluation of Delaware's Regional Haze Submission for the
Second Implementation Period
A. Background on Delaware's First Implementation Period SIP Submission
DNREC submitted its regional haze SIP for the first implementation
period to EPA on September 25, 2008. EPA approved Delaware's first
implementation period regional haze SIP submission on July 19, 2011 (76
FR 42557). Delaware has no Class I Areas within its borders but was
identified as influencing the visibility impairment of the Brigantine
National Wildlife Refuge Class I Area (``Brigantine'' or ``Brigantine
Wilderness Class I Area''), located in the State of New Jersey. EPA's
approval included the portions of the plan that addressed the
reasonable progress requirements and Delaware's implementation of Best
Available Retrofit Technologies (BART) on eligible sources. The
requirements for regional haze SIPs for the first implementation period
are contained in 40 CFR 51.308(d) and (e). 40 CFR 51.308(b). Pursuant
to 40 CFR 51.308(g), Delaware was also responsible for submitting a
five-year progress report as a SIP revision for the first
implementation period, which it did on September 24, 2013. EPA approved
the progress report into the Delaware SIP on May 5, 2014. See 79 FR
25506.
B. Delaware's Second Implementation Period SIP Submission and EPA's
Evaluation
In accordance with CAA sections 169A and the RHR at 40 CFR
51.308(f), on August 8, 2022, DNREC submitted a revision to the
Delaware SIP, titled ``Delaware's Visibility SIP Revision Final August
2022'' to address its regional haze obligations for the second
implementation period, which runs through 2028. DNREC subsequently
submitted a supplemental SIP submittal to EPA on March 7, 2024,
referred to as ``Supplemental Submission for Delaware's Second Regional
Haze SIP'', which included title V permit provisions for three
facilities owned by Calpine Mid-Atlantic Generation, LLC to be
incorporated into the Delaware SIP. These permits and their associated
public notice and transmittal letters are included in the rulemaking
docket for this action.\30\
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\30\ DNREC provided a clarification of this supplemental SIP
submittal on May 28, 2024, that specified which provisions of the
Title V permits it intended to be incorporated by reference into the
Delaware SIP.
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The following sections describe Delaware's SIP submission,
including analyses conducted by MANE-VU and Delaware's determinations
based on those analyses, Delaware's assessment of progress made since
the first implementation period in reducing emissions of visibility
impairing pollutants, and the visibility improvement progress at the
nearby Class I Area. This rulemaking also contains EPA's evaluation of
Delaware's submission against the requirements of the CAA and RHR for
the second implementation period of the regional haze program.
C. Identification of Class I Areas
Section 169A(b)(2) of the CAA requires each State in which any
Class I Area is located or ``the emissions from which may reasonably be
anticipated to cause or contribute to any impairment of visibility'' in
a Class I Area to have a plan for making reasonable progress toward the
national visibility goal. The RHR implements this statutory requirement
at 40 CFR 51.308(f), which provides that each State's plan ``must
address regional haze in each
[[Page 67028]]
mandatory Class I Area located within the State and in each mandatory
Class I Area located outside the State that may be affected by
emissions from within the State,'' and (f)(2), which requires each
State's plan to include a long-term strategy that addresses regional
haze in such Class I Areas.
Delaware does not have a Class I Area located within its borders,
but has been identified as influencing the visibility impairment of the
Brigantine Wilderness Class I Area, located in the State of New Jersey.
For the second implementation period, MANE-VU performed technical
analyses \31\ to help assess source and State-level contributions to
visibility impairment and the need for interstate consultation. MANE-VU
used the results of these analyses to determine which States' emissions
``have a high likelihood of affecting visibility in MANE-VU's Class I
Areas.'' \32\ Similar to metrics used in the first implementation
period,\33\ MANE-VU used a greater than 2 percent of sulfate plus
nitrate emissions contribution criteria to determine whether emissions
from individual jurisdictions within the region affected visibility in
any Class I Areas. The MANE-VU analyses for the second implementation
period used a combination of data analysis techniques, including
emissions data, distance from Class I Areas, wind trajectories, and
California Puff Model (CALPUFF) dispersion modeling. Although many of
the analyses focused only on SO<INF>2</INF> emissions and resultant
particulate sulfate contributions to visibility impairment, some also
incorporated NO<INF>X</INF> emissions to estimate particulate nitrate
contributions.
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\31\ The contribution assessment methodologies for MANE-VU Class
I Areas are summarized in appendix 1-1 of the DE Regional Haze SIP
submission, ``Selection of States for MANE-VU Regional Haze
Consultation (2018)'' in the docket.
\32\ Id.
\33\ See docket EPA-R03-OAR-2011-0289 for MANE-VU supporting
materials.
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One MANE-VU analysis used for contribution assessment was CALPUFF
air dispersion modeling. The CALPUFF model was used to estimate sulfate
and nitrate formation and transport in MANE-VU and nearby regions
originating from large electric generating unit (EGU) point sources and
other large industrial and institutional sources in the eastern and
central United States. Information from an initial round of CALPUFF
modeling was collated for the 444 EGUs that were determined to warrant
further scrutiny based on their emissions of SO<INF>2</INF> and
NO<INF>X</INF>. The list of EGUs was based on an enhanced ``Q/d''
analysis \34\ that considered recent SO<INF>2</INF> emissions in the
eastern United States and an analysis that adjusted previous 2002 MANE-
VU CALPUFF modeling by applying a ratio of 2011 to 2002 SO<INF>2</INF>
emissions. This list of sources was then enhanced by including the top
five SO<INF>2</INF> and NO<INF>X</INF> emission sources for 2011 for
each State included in the modeling domain. A total of 311 EGU stacks
(as opposed to individual units) were included in the CALPUFF modeling
analysis. Initial information was also collected on the 50 industrial
and institutional sources that, according to 2011 Q/d analysis,
contributed the most to visibility impact in each Class I Area. The
ultimate CALPUFF modeling run included a total of 311 EGU stacks and 82
industrial facilities. The summary report for the CALPUFF modeling
included the top 10 most impacting EGUs and the top five most impacting
industrial/institutional sources for each Class I Area and compiled
those results into a ranked list of the most impacting EGUs and
industrial sources at MANE-VU Class I Areas.\35\
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\34\ ``Q/d'' is emissions (Q) in tons per year, typically of one
or a combination of visibility-impairing pollutants, divided by
distance to a class I area (d) in kilometers. The resulting ratio is
commonly used as a metric to assess a source's potential visibility
impacts on a particular class I area.
\35\ See tables 34 and 35 of appendix 8-5 of the DE 2022
Regional haze SIP submission, ``2016 MANE-VU CALPUFF Modeling
Report'' in the docket.
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The second MANE-VU contribution analysis used a meteorologically
weighted Q/d calculation to assess States' contributions to visibility
impairment at MANE-VU Class I Areas.\36\ This analysis focused
predominantly on SO<INF>2</INF> emissions and used cumulative
SO<INF>2</INF> emissions from a source and a State for the variable
``Q,'' and the distance of the source or State to the IMPROVE monitor
receptor at a Class I Area as ``d.'' The result is then multiplied by a
constant (C<INF>i</INF>), which is determined based on the prevailing
wind patterns. MANE-VU selected a meteorologically weighted Q/d
analysis as an inexpensive initial screening tool that could easily be
repeated to determine which States, sectors, or sources have a larger
relative impact and warrant further analysis. MANE-VU's analysis
estimated SO<INF>2</INF> emission contribution from Delaware sources of
less than 2% of visibility impairment for all seven MANE-VU Class I
Areas. Although MANE-VU did not originally estimate nitrate impacts,
the MANE-VU Q/d analysis was subsequently extended to account for
nitrate contributions from NO<INF>X</INF> emissions and to approximate
the nitrate impacts from area and mobile sources. MANE-VU therefore
developed a ratio of nitrate to sulfate impacts based on the previously
described CALPUFF modeling and applied those to the sulfate Q/d results
in order to derive nitrate contribution estimates. Several States did
not have CALPUFF nitrate to sulfate ratio results, however, because
there were no point sources modeled with CALPUFF.
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\36\ See appendix 8-2, ``Contribution to Regional Haze in the
Northeast and Mid-Atlantic United States: Preliminary Update Through
2007.''
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To develop a final set of contribution estimates, MANE-VU weighted
the results from both the Q/d and CALPUFF analyses. The MANE-VU mass-
weighted sulfate and nitrate contribution results were reported for the
MANE-VU Class I Areas (the Q/d summary report included results for
several non-MANE-VU areas as well). If a State's contribution to
sulfate and nitrate concentrations at a particular Class I Area was 2
percent or greater, MANE-VU regarded that State as contributing to
visibility impairment in that area. Delaware's highest mass-weighted
sulfate and nitrate contribution to any Class I Area was 0.6% to the
Brigantine Wilderness Class I Area. Even with a contribution level
below 2 percent threshold, Delaware agreed to participate in the
consultation process, as part of the MANE-VU RPO.
As explained above, the EPA concluded in the 1999 RHR that ``all
[s]tates contain sources whose emissions are reasonably anticipated to
contribute to regional haze in a Class I Area,'' 64 FR 35714 at 35721
(July 1, 1999), and this determination was not changed in the 2017 RHR.
Critically, the statute and regulation both require that the cause-or-
contribute assessment consider all emissions of visibility-impairing
pollutants from a State, as opposed to emissions of a particular
pollutant or emissions from a certain set of sources. Consistent with
these requirements, the 2019 Guidance makes it clear that ``all types
of anthropogenic sources are to be included in the determination'' of
whether a State's emissions are reasonably anticipated to result in any
visibility impairment. 2019 Guidance at 8.
First, as an aside, the screening analyses on which MANE-VU relied
are useful for certain purposes. MANE-VU used information from its
technical analysis to rank the largest contributing States to sulfate
and nitrate impairment in five Class I Areas within MANE-VU States and
three additional, nearby Class I Areas.\37\ The rankings were used to
[[Page 67029]]
determine upwind States that were deemed important to include in state-
to-state consultation (based on an identified impact screening
threshold). Additionally, large individual source impacts were used to
target MANE-VU control analysis ``Asks'' \38\ of States and sources
both within and upwind of MANE-VU.\39\ EPA finds the nature of the
analyses generally appropriate to support decisions on States with
which to consult. However, we have cautioned that source selection
methodologies that target the largest regional contributors to
visibility impairment across multiple States may not be reasonable for
a particular State if it results in few or no sources being selected
for subsequent analysis. 2021 Clarifications Memo at 3. Delaware has
participated in the MANE-VU visibility analysis and has provided
information in its SIP submission on the magnitude of visibility
impacts from certain Delaware emission sources, specifically the Indian
River Generating Station and the Edge Moor Energy Center (EMEC), on
nearby Class I Areas.
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\37\ The Class I Areas analyzed were Acadia National Park in
Maine, Brigantine Wilderness in New Jersey, Great Gulf Wilderness in
New Hampshire, Lye Brook Wilderness in Vermont, Moosehorn Wilderness
in Maine, Shenandoah National Park in Virginia, James River Face
Wilderness in Virginia, and Dolly Sods/Otter Creek Wildernesses in
West Virginia.
\38\ As explained more fully in section IV.E.a, of this document
MANE-VU refers to each of the components of its overall strategy as
an ``Ask'' of its member states.
\39\ The MANE-VU consultation report (appendix D) explains that
``[t]he objective of this technical work was to identify states and
sources from which MANE-VU will pursue further analysis. This
screening was intended to identify which states to invite to
consultation, not a definitive list of which states are
contributing.''
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With regard to the analysis and determinations regarding Delaware's
contribution to visibility impairment at out-of-state Class I Areas,
the MANE-VU technical work focuses on the magnitude of visibility
impacts from certain Delaware emissions on its Class I Area and other
nearby Class I Areas. However, the analyses did not account for all
emissions and all components of visibility impairment (e.g., primary PM
emissions, and impairment from fine PM, elemental carbon, and organic
carbon). In addition, Q/d analyses with a relatively simplistic
accounting for wind trajectories and CALPUFF applied to a very limited
set of EGUs, and major industrial sources of SO<INF>2</INF> and
NO<INF>X</INF> are not scientifically rigorous tools capable of
evaluating contribution to visibility impairment from all emissions in
a State. We again clarify that each State is obligated under the CAA
and RHR to address regional haze visibility impairment resulting from
emissions from within the State, irrespective of whether another
State's contribution is greater. See 2021 Clarifications Memo at 3.
Additionally, we note that the 2 percent or greater sulfate-plus-
nitrate threshold used to determine whether Delaware's emissions
contribute to visibility impairment at a particular Class I Area may be
higher than what EPA believes is an ``extremely low triggering
threshold'' intended by the statute and regulations. In sum, based on
the information provided, it is clear that emissions from Delaware
contribute to visibility impairment at out-of-state Class I Areas.
However, due to the low triggering threshold implied by the Rule and
the lack of rigorous modeling analyses, we do not necessarily agree
with the level of the State's 2% contribution threshold.
Delaware determined that sources and emissions within the State
contribute to visibility impairment at three out-of-state Class I
Areas.\40\ Furthermore, the State took part in the emission control
strategy consultation process as a member of MANE-VU pursuant to the
regulatory requirements. As part of that process, MANE-VU developed a
set of emissions reduction measures identified as being necessary to
make reasonable progress in the five MANE-VU Class I Areas. This
strategy consists of six ``Asks'' for States within MANE-VU and five
``Asks'' for States outside the region that were found to impact
visibility at Class I Areas within MANE-VU.\41\ Delaware's submission
discusses each of the ``Asks'' and explains why or why not each is
applicable and how it has complied with the relevant components of the
emissions control strategy MANE-VU has laid out for its States.
Delaware worked with MANE-VU to determine potential reasonable measures
that could be implemented by 2028, considering the cost of compliance,
the time necessary for compliance, the energy and non-air quality
environmental impacts, and the remaining useful life of any potentially
affected sources. As discussed in further detail below, the EPA is
proposing to find that Delaware has submitted a regional haze plan that
meets the requirements of 40 CFR 51.308(f)(2) related to the
development of a long-term strategy. Although we have concerns
regarding some aspects of MANE-VU's technical analyses supporting
States' contribution determinations, we propose to find that Delaware
has nevertheless satisfied the applicable regulatory requirements for
making reasonable progress towards natural visibility conditions in
Class I Areas that may be affected by emissions from the State.
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\40\ Brigantine in NJ, James River Face in WV and Shenandoah
National Park in VA.
\41\ See appendix 9-1 of the DE Regional Haze SIP submittal,
``Statement of the Mid-Atlantic/Northeast Visibility Union (MANE-VU)
Concerning a Course of Action within MANE-VU toward Assuring
Reasonable Progress for the Second Regional Haze Implementation
Period (2018-2028), (August 2017).''
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D. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
Section 51.308(f)(1) requires States to determine the following for
``each mandatory Class I Federal area located within the State'':
baseline visibility conditions for the most impaired and clearest days,
natural visibility conditions for the most impaired and clearest days,
progress to date for the most impaired and clearest days, the
differences between current visibility conditions and natural
visibility conditions, and the URP. This section also provides the
option for States to propose adjustments to the URP line for a Class I
Area to account for visibility impacts from anthropogenic sources
outside the United States and/or the impacts from wildland prescribed
fires that were conducted for certain, specified objectives. 40 CFR
51.308(f)(1)(vi)(B).
Delaware does not have any Class I Area within its borders
therefore, Sec. 51.308(f)(1) and its requirements do not apply.\42\
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\42\ While Delaware noted that it was not required to comply
with 40 CFR 51.308(f)(1), elsewhere in its SIP submission (section
8.10), Delaware included a visibility metric graph of a nearby Class
I area, which was taken from a MANE-VU report referenced in their
SIP submittal, titled ``Mid-Atlantic/Northeast U.S. Visibility Data
2004-2019 (2nd RH SIP Metrics) (May 1, 2020 revisions) (January 21,
2021 revision).''
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E. Long-Term Strategy for Regional Haze
a. Delaware's Response to the Six MANE-VU Asks
Each State having a Class I Area within its borders or emissions
that may affect visibility in a Class I Area must develop a long-term
strategy for making reasonable progress towards the national visibility
goal. CAA 169A(b)(2)(B). As explained in the Background section of this
rulemaking, reasonable progress is achieved when all States
contributing to visibility impairment in a Class I Area are
implementing the measures determined--through application of the four
statutory factors to sources of visibility impairing pollutants--to be
necessary to make reasonable progress. 40 CFR 51.308(f)(2)(i). Each
State's long-term strategy must include the enforceable emission
limitations,
[[Page 67030]]
compliance schedules, and other measures that are necessary to make
reasonable progress. 40 CFR 51.308(f)(2). All new (i.e., additional)
measures that are the outcome of four-factor analyses are necessary to
make reasonable progress and must be in the long-term strategy. If the
outcome of a four-factor analysis and other measures necessary to make
reasonable progress is that no new measures are reasonable for a
source, that source's existing measures are necessary to make
reasonable progress, unless the State can demonstrate that the source
will continue to implement those measures and will not increase its
emission rate. Existing measures that are necessary to make reasonable
progress must also be in the long-term strategy. In developing its
long-term strategies, a State must also consider the five additional
factors in 40 CFR 51.308(f)(2)(iv). As part of its reasonable progress
determinations, the State must describe the criteria used to determine
which sources or group of sources were evaluated (i.e., subjected to
four-factor analysis) for the second implementation period and how the
four factors were taken into consideration in selecting the emission
reduction measures for inclusion in the long-term strategy. 40 CFR
51.308(f)(2)(iii).
The following section summarizes how Delaware's SIP submission
addressed the requirements of 40 CFR 51.308(f)(2)(i). Specifically, it
describes MANE-VU's development of the six Asks and how Delaware
addressed each one.
States may rely on technical information developed by the RPOs of
which they are members to select sources for four-factor analysis and
to conduct that analysis, as well as to satisfy the documentation
requirements under 40 CFR 51.308(f). Where an RPO has performed source
selection and/or four-factor analyses (or considered the five
additional factors in 40 CFR 51.308(f)(2)(iv)) for its member States,
those States may rely on the RPO's analyses for the purpose of
satisfying the requirements of 40 CFR 51.308(f)(2)(i) so long as the
States have a reasonable basis to do so and all State participants in
the RPO process have approved the technical analyses. 40 CFR
51.308(f)(3)(iii). States may also satisfy the requirement of 40 CFR
51.308(f)(2)(ii) to engage in interstate consultation with other States
that have emissions that are reasonably anticipated to contribute to
visibility impairment in a given Class I Area under the auspices of
intra- and inter-RPO engagement.
Delaware is a member of the MANE-VU RPO and participated in the
RPO's regional approach to developing a strategy for making reasonable
progress towards the national visibility goal in the MANE-VU Class I
Areas. MANE-VU's strategy includes a combination of: (1) measures for
certain source sectors and groups of sectors that the RPO determined
were reasonable for States to pursue, and (2) a request for member
States to conduct four-factor analyses for individual sources that it
identified as contributing to visibility impairment. MANE-VU refers to
each of the components of its overall strategy as an Ask of its member
States. On August 25, 2017, the Executive Director of MANE-VU, on
behalf of the MANE-VU States and Tribal nations, signed a statement
that identifies six emission reduction measures that comprise the
``Asks'' for the second implementation period.\43\ The ``Asks'' were
``designed to identify reasonable emission reduction strategies that
must be addressed by the states and tribal nations of MANE-VU through
their regional haze SIP updates.'' \44\ The statement explains that
``[i]f any State cannot agree with or complete a Class I State's Asks,
the State must describe the actions taken to resolve the disagreement
in the Regional Haze SIP.'' \45\
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\43\ See appendix 9-1 of the DE Regional Haze SIP submittal,
``Statement of the Mid-Atlantic/Northeast Visibility Union (MANE-VU)
Concerning a Course of Action within MANE-VU toward Assuring
Reasonable Progress for the Second Regional Haze Implementation
Period (2018-2028), (August 2017).''
\44\ Id.
\45\ Id.
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MANE-VU's recommendations as to the appropriate control measures
were based on technical analyses documented in the RPO's reports and
included as appendices to or referenced in Delaware's regional haze SIP
submission. One of the initial steps of MANE-VU's technical analysis
was to determine which visibility-impairing pollutants should be the
focus of its efforts for the second implementation period. In the first
implementation period, MANE-VU determined that sulfates were the most
significant visibility impairing pollutant at the region's Class I
Areas. To determine the impact of certain pollutants on visibility at
Class I Areas for the purpose of second implementation period planning,
MANE-VU conducted an analysis comparing the pollutant contribution on
the clearest and most impaired days in the baseline period (2000-2004)
to the most recent period (2012-2016) \46\ at MANE-VU and nearby Class
I Areas. MANE-VU found that while SO<INF>2</INF> emissions were
decreasing and visibility was improving, sulfates still made up the
most significant contribution to visibility impairment at MANE-VU and
nearby Class I Areas. According to the analysis, NO<INF>X</INF>
emissions have begun to play a more significant role in visibility
impacts in recent years, especially at the Brigantine Wilderness Class
I Area. The technical analyses used by Delaware are included in their
submission and are as follows:
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\46\ The period of 2012-2016 was the most recent period for
which data was available at the time of analysis.
<bullet> The Nature of the Fine Particle and Regional Haze Air Quality
Problems in the MANE-VU Region: A Conceptual description (NESCAUM,
November 2006, Revised August 2010 and July 2012) (Appendix 8-1)
<bullet> Contributions to Regional Haze in the Northeast and Mid-
Atlantic United States: Preliminary Update Through 2007 (NESCAUM, March
2012) (Appendix 8-2)
<bullet> MANE-VU Updated Q/d*C Contribution Assessment. (MANE-VU, April
2016) (Appendix 8-3)
<bullet> 2016 Updates to the Assessment of Reasonable Progress in MANE-
VU Class I Areas (MARAMA, January 2016) (Appendix 8-4)
<bullet> 2016 MANE-VU Source Contribution Modeling Report--CALPUFF
Modeling of Large Electrical Generating Units and Industrial Sources
(MANE-VU, April 2017) (Appendix 8-5)
<bullet> Regional Haze Metrics Trends and HYSPLIT Trajectory Analysis.
(MANE-VU, May 2017) (Appendix 8-6)
<bullet> Permit Cancellation Documents for McKee Run Generating
Station, City of Dover. (DNREC, November 2021) (Appendix 8-7)
<bullet> Recommendation on Approaches to Selecting the 20% Most
Impaired Days. (MANE-VU, March 2017) (Appendix 8-8)
<bullet> Analysis of Speciation Trends Network Data Measured at the
State of Delaware, Philip K. Hopke and Eugene Kim, Center for Air
Resources Engineering and Science Clarkson University. (January 2005)
(Appendix 8-9)
To support development of the ``Asks,'' MANE-VU gathered
information on each of the four statutory factors for six source
sectors it determined, based on an examination of annual emission
inventories, ``had emissions that were reasonabl[y] anticipated to
contribute to visibility
[[Page 67031]]
degradation in MANE-VU:'' electric generating units (EGUs), industrial/
commercial/institutional boilers (ICI boilers), cement kilns, heating
oil, residential wood combustion, and outdoor wood combustion.\47\
MANE-VU also collected data on individual sources within the EGU, ICI
boiler, and cement kiln sectors.\48\ Information for the six sectors
included explanations of technically feasible control options for
SO<INF>2</INF> or NO<INF>X,</INF> illustrative cost-effectiveness
estimates for a range of model units and control options, sector-wide
cost considerations, potential time frames for compliance with control
options, potential energy and non-air-quality environmental impacts of
certain control options, and how the remaining useful lives of sources
might be considered in a control analysis.\49\ Source-specific data
included SO<INF>2</INF> emissions \50\ and existing controls \51\ for
certain existing EGUs, ICI boilers, and cement kilns. MANE-VU
considered this information on the four factors as well as the analyses
developed by the RPO's Technical Support Committee when it determined
specific emission reduction measures that were found to be reasonable
for certain sources within two of the sectors it had examined--EGUs and
ICI boilers. The ``Asks'' were based on this analysis and looked to
either optimize the use of existing controls, have States conduct
further analysis on EGU or ICI boilers with considerable visibility
impacts, implement low sulfur fuel standards, or lock-in lower emission
rates.
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\47\ See MANE-VU's ``Four Factor Data Collection'' Memo at 1,
March 30, 2017, available at <a href="http://otcair.org/MANEVU/Upload/Publication/Reports/Four-Factor%20Data%20Collection%20Memo%20-%20170314.pdf">otcair.org/MANEVU/Upload/Publication/Reports/Four-Factor%20Data%20Collection%20Memo%20-%20170314.pdf</a>. The
six sectors were identified in the first implementation period
pursuant to MANE-VU's contribution assessment; MANE-VU subsequently
updated its information on these sectors for the second
implementation period.
\48\ See appendix 8-4 ``2016 Updates to the Assessment of
Reasonable Progress for Regional Haze in MANE-VU Class I Areas,
January 31, 2016.''
\49\ Id.
\50\ See docket document, ``MANE-VU's ``Four Factor Data
Collection Memo'' March 30, 2017, table 1 contains 2011
SO<INF>2</INF> data from specific sources.
\51\ The ``Status of the Top 167 EGUs that Contributed to
Visibility Impairment at MANE-VU Class I Areas during the 2008
Regional Haze Planning Period'' July 25, 2016, reviews the existing
and soon to be installed, at the time of the report, emission
controls at individual EGU sources that were a part of the MANE-VU
Ask from the first implementation period. Available at: <a href="http://otcair.org/MANEVU/Upload/Publication/Reports/Status%20of%20the%20Top%20167%20Stacks%20from%20the%202008%20MANE-VU%20Ask.pdf">otcair.org/MANEVU/Upload/Publication/Reports/Status%20of%20the%20Top%20167%20Stacks%20from%20the%202008%20MANE-VU%20Ask.pdf</a>.
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MANE-VU Ask 1 is ``ensure the most effective use of control
technologies on a year-round basis to consistently minimize emissions
of haze precursors or obtain equivalent alternative emission
reductions'' at EGUs with a nameplate capacity larger than or equal to
25 megawatts (MW) with already installed NO<INF>X</INF> and/or
SO<INF>2</INF> controls.\52\
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\52\ See appendix 8-12 ``MANE-VU Regional Haze Consultation
Report.''
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To address Ask 1, first, Delaware indicated that all the units that
burn fuel oil are covered year-round by a Delaware low sulfur fuel
regulation at Title 7 Delaware Administrative Code (7 DE Admin Code)
1108,\53\ that was approved into the SIP on July 11, 2022 (87 FR
41074). Delaware's SIP-approved low sulfur fuel regulation reduces the
SIP-approved maximum allowable sulfur content limit for distillate
fuels from 3,000 ppm to 15 ppm, for residual fuel from 1% to 0.5% by
weight, and for any other fuel, the sulfur content would remain at 1.0%
by weight. Based on that, the State asserted that it met the request to
ensure SO<INF>2</INF> controls year-round under Ask 1.
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\53\ 7 DE Admin Code 1108 ``Sulfur Dioxide Emissions from Fuel
Burning Equipment.'' See 87 FR 41074, July 11, 2022.
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Delaware then focused its efforts on the control of NO<INF>X</INF>
emissions and identified 10 EGUs with nameplate capacity larger than or
equal to 25 MW, of which four had permits that did not require the use
of NO<INF>X</INF> controls year-round on some of their units. The four
sources are Christiana Energy Center (ChEC), Edge Moor Energy Center
(EMEC), Garrison Energy Center (GEC), and Hay Road Energy Center
(HREC), which are all owned by Calpine Mid-Atlantic Generation, LLC
(Calpine). To meet the Ask, Delaware requested the EGUs to perform
four-factor analyses on the pertinent units to determine if year-round
NO<INF>X</INF> controls are feasible. Details of the EGUs' four-factor
analyses with regard to Ask 1 can be found in a technical support
document (TSD) of this proposed rulemaking action; specifically, it
describes how Delaware addressed each Ask.
Based on the four-factor analyses performed by the sources to
evaluate adding or expanding NO<INF>X</INF> controls year-round, only
one of the sources, ChEC, concluded that it was feasible to operate the
existing controls for an additional period throughout the year. Based
upon that conclusion and in order to meet the Ask, Delaware updated
applicable permits in May 2021 to reflect the new measures, and
submitted the redacted permits for incorporation into the SIP.
Additional details can be found in the TSD (section III-a.-1. at 8).
Delaware therefore concluded that it met Ask 1.
MANE-VU Ask 2 requests that States ``perform a four-factor analysis
for reasonable installation or upgrade to emissions controls'' for
specified sources. MANE-VU developed its Ask 2 list of sources for
analysis by performing modeling and identifying facilities with the
potential for 3.0 inverse megameters (Mm<SUP>-1</SUP>) or greater
impacts on visibility at any Class I Area in the MANE-VU region.\54\
Delaware explained that it has no facilities that were modeled by MANE-
VU to impact visibility at any Class I Area by 3.0 Mm<SUP>-1</SUP> or
more and concluded that it is currently meeting Ask 2. While Delaware
did not select sources that fell under MANE-VU's 3.0 Mm<SUP>-1</SUP>
threshold for four-factor analysis, it did provide supplemental
information about a large source that was identified by commenters and
explanation supporting its decision not to request the facility to
evaluate measures for reasonable progress because the facility is
effectively controlled.
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\54\ See appendix 8-12 ``MANE-VU Regional Haze Consultation
Report.''
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Specifically, commenters asserted that Delaware should have
selected the Delaware City Refinery Company, LLC (DCRC) for a four-
factor analysis of possible controls. In its SIP submission, Delaware
explained the reasons it did not conduct a four-factor analysis for
DCRC. First, based on MANE-VU's modeling results, DCRC showed that its
impact on visibility impairment was low; \55\ second, Delaware relied
on the threshold that was agreed to by all MANE-VU States, including
those that have Class I Areas within their boundaries; and third, the
source is well controlled for SO<INF>2</INF> and NO<INF>X</INF> through
existing State regulations and several consent decrees. Section 8.13.2
of the SIP submission contains a detailed description of controls
required for SO<INF>2</INF> and NO<INF>X</INF> emissions, pursuant to
two Federal consent decrees, an agreement governing the acquisition and
operation of the facility, and State and Federal regulations that DCRC
is subject to.\56\ More details about Delaware's response to Ask 2 can
be found in the TSD of this proposed rulemaking action.
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\55\ The Q/d for this facility, as calculated by MANE-VU, ranged
from 0.36-3.25 for the eight Class I Areas in the MANE-VU analysis,
with Brigantine Wilderness Area being at the top of this range; see
docket documents, ``Delaware Response to EPA Regional Haze Info
Request 11-3-23'' and ``Attachment E--QDCPointOnly--
Delaware1.xlsx''. In addition, this facility was not one of the 82
Industrial, Commercial, and Institutional sources identified by
MANE-VU's CALPUFF modeling as having emissions similar in magnitude
to the EGUs modeled in this exercise or that are close enough to a
Class I area that they would have the potential for visibility
impacts.
\56\ See the DE Regional Haze SIP submittal at 91.
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MANE-VU Ask 3 requests that ``each MANE-VU State that has not yet
fully adopted an ultra-low fuel oil standard as
[[Page 67032]]
requested by MANE-VU in 2007'', to ``pursue this standard as
expeditiously as possible and before 2028, depending on supply
availability.'' The Ask includes percent by weight standards for #2
distillate oil (0.0015% sulfur by weight or 15 parts per million
(ppm)), #4 residual oil (0.25-0.5% sulfur by weight), and #6 residual
oil (0.3-0.5% sulfur by weight). Delaware explained that, in 2013, it
adopted the 7 DE Admin Code 1108 low-sulfur fuel regulation \57\ which
went into effect on July 1, 2016. Delaware therefore concluded that it
is meeting Ask 3. Additional details about Delaware's response to Ask 3
can be found in the TSD of this proposed rulemaking action at 24.
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\57\ See 87 FR 41074 (July 11, 2022).
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MANE-VU Ask 4 requests States to ``pursue updating permits,
enforceable agreements, and/or rules to ``lock in'' lower emissions
rates for SO<INF>2</INF>, NO<INF>X</INF> and PM'' at emission sources
larger than 250 million British Thermal Units (MMBtu) per hour heat
input that have switched to lower emitting fuels.\58\ Based on
Delaware's SIP submission, two EGUs fell under Ask 4. The first source
is Calpine's EMEC, which had switched operations to lower emitting
fuels and had its permits updated to lock in lower emission rates for
SO<INF>2</INF>, NO<INF>X</INF> and PM. A second source, City of Dover
McKee Run Generating Station, had its permits cancelled in November
2021.\59\ Based on these updates, Delaware concluded it is meeting Ask
4. More details about Delaware's response to Ask 4 are included in the
TSD of this proposed rulemaking action.
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\58\ See appendix 8-12 ``MANE-VU Regional Haze Consultation
Report.''
\59\ See appendix 8-7 ``McKee Run Permit Cancellation Letter.''
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MANE-VU Ask 5 requests that MANE-VU States ``where emission rules
have not been adopted, control NO<INF>X</INF> emissions for peaking
combustion turbines that have the potential to operate on high electric
demand days (HEDD)'' by either: (a) striving to meet NO<INF>X</INF>
emissions standards specified in the Ask for turbines that run on
natural gas and fuel oil, (b) performing a four-factor analysis for
reasonable installation of or upgrade to emission controls, or (c)
obtaining equivalent alternative emission reductions on HEDD.\60\ The
Ask requests States to strive for NO<INF>X</INF> emission standards of
no greater than 25 ppm for natural gas and 42 ppm for fuel oil, or at a
minimum, NO<INF>X</INF> emissions standards of no greater than 42 ppm
for natural gas and 96 ppm for fuel oil.
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\60\ See appendix 8-12 ``MANE-VU Regional Haze Consultation
Report.''
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For Ask 5, Delaware identified seven sources with units affected by
HEDD,\61\ and two of the seven sources met the emission limits provided
in option (a). Delaware requested that each of the remaining five
sources perform four-factor analyses as stated in option (b) of the Ask
because their current Title V permits do not meet the NO<INF>X</INF>
standards from option (a).\62\ Based on the four-factor analyses
conducted by the five sources to evaluate potential control options for
HEDD units, three of them found it economically feasible to operate
existing controls during two additional months adjacent to the ozone
season, for which Delaware updated their Title V permits accordingly
and submitted the permits for incorporation into the SIP. For the
remaining two sources, Delaware reviewed the facilities' estimates of
compliance costs \63\ of $192,000/ton of NO<INF>X</INF> removed for one
and $334,897/ton of NO<INF>X</INF> removed for the other to upgrade
their respective units,\64\ and Delaware concluded that it was not an
economically feasible option for these sources to upgrade their
existing control given the limited operational time and low level of
reported annual NO<INF>X</INF> emissions within the State as shown on
table 10-5 of the SIP submittal. In addition, Delaware evaluated
various potential new control options for the five sources but found
that these were neither economically nor technically feasible. Because
Delaware conducted four-factor analyses on the selected sources,
Delaware concluded it has satisfied Ask 5 through option (b). More
details about Delaware's EGUs four-factor analyses with regards to Ask
5 can be found in the TSD of this proposed rulemaking action.
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\61\ See table 10-4 (Delaware Units Affected by HEDD ``Ask #5'')
of the DE Regional Haze SIP submittal at 110.
\62\ See table 10-5 (Average Operating Hours and NO<INF>X</INF>
Emissions for Units Under ``Ask #5'') of the DE Regional Haze SIP
submittal at 111.
\63\ Per the DE Regional Haze SIP submittal section 10.5, costs
were based on similar projects in other states for the one facility,
and vendor quotes and EPA's Air Pollution Control Cost Manual for
the other facility.
\64\ See section 10.5 of the DE Regional Haze SIP submittal.
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MANE-VU Ask 6, requests that ``each State should consider and
report in their SIP measures or programs to: (a) decrease energy demand
through the use of energy efficiency and (b) increase the use within
their State of Combined Heat and Power (CHP) and other clean
Distributed Generation technologies including fuel cells, wind and
solar.'' \65\ Delaware stated that it implemented a number of measures
with regard to this Ask. Some of these include the Energy Task Force
Executive Order signed on April 26, 2002, the Delaware Energy
Efficiency Advisory Council (EEAC), the 2005 Renewable Energy Portfolio
Standards Act which is the basis for Delaware's renewable energy
portfolio standards (RPS), and the Regional Greenhouse Gas Initiative
(RGGI), to name a few. Based on these measures, Delaware concluded it
is meeting Ask 6. Additional details about Delaware's response to Ask 6
can be found in the TSD of this proposed rulemaking action.
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\65\ See appendix 8-12 ``MANE-VU Regional Haze Consultation
Report.''
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b. EPA's Evaluation of Delaware's Response to the Six MANE-VU Asks and
Compliance With 40 CFR 51.308(f)(2)(i)
EPA is proposing to find that Delaware has satisfied the
requirements of 40 CFR 51.308(f)(2)(i) related to evaluating sources
and determining the emission reduction measures that are necessary to
make reasonable progress by considering the four statutory factors.
Through Ask 1, MANE-VU instructed States to ``ensure the most
effective use of control technologies on a year-round basis to
consistently minimize emissions of haze precursors or obtain equivalent
alternative emission reductions'' at EGUs with a nameplate capacity
larger than or equal to 25 megawatts (MW) with already installed
NO<INF>X</INF> and/or SO<INF>2</INF> controls.\66\
---------------------------------------------------------------------------
\66\ Id.
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EPA reviewed and evaluated Delaware's response to the four-factor
analyses on the four sources with permits that did not require
NO<INF>X</INF> controls year-round on some of their units and found
that the State agreed with Calpine's conclusions for each of the
sources. For ChEC and EMEC, Delaware agreed that it is not economically
feasible to operate their NO<INF>X</INF> existing controls year-round
because the units' operation and, hence, NO<INF>X</INF> emissions are
both limited. On the other hand, for GEC and HREC, Delaware agreed that
it is not technically feasible to retrofit the sources' NO<INF>X</INF>
existing controls to operate year-round due to the same conclusion that
operation and NO<INF>X</INF> emissions are limited. To support their
conclusion, on table 10-2 of the SIP submittal, Delaware included the
annual average operating hours and NO<INF>X</INF> emissions of the
sources for a five-year period, which demonstrate the generally limited
operation and the significantly low NO<INF>X</INF> emissions in recent
years (i.e., the tons of NO<INF>X</INF> emitted per unit per year
ranging from less than two to less than 150).
[[Page 67033]]
EPA agrees with Delaware that it is not reasonable to upgrade any
of the sources' NO<INF>X</INF> existing controls due to the extremely
low emission reductions that would have been achieved, and that the
costs of compliance, as demonstrated through the four-factor analyses,
are not justified by the low amount of NO<INF>X</INF> emission
reductions that the sources would achieve if these were reconfigured.
More information on the amount of NO<INF>X</INF> emitted from these
units can be found in the TSD at 32-33.
EPA also reviewed and evaluated the State's selection and
modification of the applicable EGUs' title V permits to incorporate the
regional haze requirements of the second planning period. To meet Ask
1, DNREC updated ChEC, EMEC, and HREC's title V permits after
conducting four-factor analyses. For ChEC, DNREC added the 88 ppm
NO<INF>X</INF> emission limit during April and October. For EMEC and
HREC, DNREC added language requiring the facilities to operate and
maintain their existing NO<INF>X</INF> control systems in accordance
with Calpine's maintenance protocol. Based on the above, EPA thus
agrees with Delaware's conclusions and proposes to find that Delaware
reasonably satisfied Ask 1.
For Ask 2, MANE-VU requested that States ``perform a four-factor
analysis for reasonable installation or upgrade to emissions controls''
for specified sources. MANE-VU developed its Ask 2 list of sources for
analysis by performing modeling and identifying facilities with the
potential for 3.0 inverse megameters (Mm<SUP>-1</SUP>) or greater
impacts on visibility at any Class I Area in the MANE-VU region.\67\
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\67\ See appendix 8-12 ``MANE-VU Regional Haze Consultation
Report.''
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As an initial matter, EPA does not necessarily agree that MANE-VU
3.0 Mm<SUP>-1</SUP> visibility impact is a reasonable threshold for
source selection. The RHR recognizes that, due to the nature of
regional haze visibility impairment, numerous and sometimes relatively
small sources may need to be selected and evaluated for control
measures in order to make reasonable progress. See 2021 Clarifications
Memo at 4. As explained in the 2021 Clarifications Memo, while states
have discretion to choose any source selection threshold that is
reasonable, ``[a] state that relies on a visibility (or proxy for
visibility impact) threshold to select sources for four-factor analysis
should set the threshold at a level that captures a meaningful portion
of the State's total contribution to visibility impairment to Class I
Areas.'' 2021 Memo at 3. In this case, the 3.0 Mm<SUP>-1</SUP>
threshold did not identify sources in Delaware (only 22 across the
entire MANE-VU region), indicating that it may be unreasonably
high.\68\
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\68\ Even though MANE-VU's 3.0 Mm<SUP>-1</SUP> threshold did not
identify sources in Delaware, two EGU sources were selected for
CALPUFF modeling and identified as impacting two Class I Areas,
Shenandoah National Park (SHEN) and James River Face National Park
(JARI). These sources were the Indian River and the Edge Moor Energy
Centers, whose highest impacts to these Class I Areas were at 1.7
Mm\1\ in 2011 and 0.5 Mm<SUP>-1</SUP> in 2015 from Indian River to
SHEN, 1.1 Mm<SUP>-1</SUP> in 2011 and 0.7 Mm<SUP>-1</SUP> in 2015
from Indian River to JARI, 0.2 Mm<SUP>-1</SUP> in 2011 and none in
2015 from Edge Moor to SHEN, and 0.4 Mm<SUP>-1</SUP> in 2011 and
none in 2015 from Edge Moor to JARI. Nonetheless, their impacts were
well below the 3.0 Mm<SUP>-1</SUP> threshold during the selected
base years of 2011 and 2015. See DE Regional Haze SIP submittal at
75.
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However, EPA proposes to find that Delaware reasonably determined
that it has satisfied Ask 2. As explained above, we do not necessarily
agree that a 3.0 Mm<SUP>-1</SUP> threshold for selecting sources for
four-factor analysis results in a set of sources the evaluation of
which has the potential to meaningfully reduce the State's contribution
to visibility impairment. MANE-VU's Ask 2 did not identify any source
in Delaware for a four-factor analysis; however, as part of EPA's
evaluation, we note that other MANE-VU Asks identified multiple sources
and sectors for four-factor analyses in Delaware, and Delaware did
evaluate additional control measures and conducted four-factor analyses
through other Asks to meet the regional haze requirements for the
second planning period. Ask 2 is not the only source selection process
for this State, and thus EPA is basing this proposed finding on the
State's consideration of the four factors and units and sectors
analyzed in Asks 1, 3, and 5.
Ask 3 requests that, for ``each MANE-VU State that has not yet
fully adopted an ultra-low fuel oil standard as requested by MANE-VU in
2007'', to ``pursue this standard as expeditiously as possible and
before 2028, depending on supply availability.'' EPA proposes to find
that Delaware reasonably relied on MANE-VU's four-factor analysis for a
low-sulfur fuel oil regulation, which engaged with each of the
statutory factors and explained how the information supported a
conclusion that a 15 ppm-sulfur fuel oil standard for fuel oils is
reasonable. Delaware's ultra-low sulfur fuel oil regulations,\69\
which, as previously stated, were approved into Delaware's SIP on July
11, 2022 (87 FR 41074), are consistent with Ask 3. EPA therefore
proposes to find that Delaware reasonably determined that it has
satisfied Ask 3.
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\69\ See 7 DE Admin Code 1108 ``Sulfur Dioxide Emissions from
Fuel Burning Equipment.''
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MANE-VU Ask 4 requests that States ``pursue updating permits,
enforceable agreements, and/or rules to lock-in lower emission rates
for SO<INF>2</INF>, NO<INF>X</INF>, and PM'' at ``EGUs and other large
point emission sources larger than 250 MMBTU per hour heat input that
have switched to lower emitting fuels.'' Ask 4 also states that ``the
permit, enforceable agreement, and/or rule can allow for suspension of
the lower emission rate during natural gas curtailment.'' Delaware
concluded that no additional updates were needed to meet Ask 4 because
the EGU that fell under this Ask, Calpine EMEC, switched operations to
lower emitting fuels and has already locked into the lower emission
rates for NO<INF>X</INF>, SO<INF>2</INF>, and PM by permits. In
addition, the McKee Run Generating Station, that fell under this Ask,
had its permits cancelled on November 12, 2021. Finally, modified units
in Delaware are required to amend their permits through the New Source
Review (NSR) process if they plan to switch back to coal or a fuel that
will increase emissions. A change in fuel, unless already allowed in
the permit, would generally be a modification,\70\ and Delaware's
operating permits regulations require that an application to modify the
permit be submitted prior to the change in fuel.\71\
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\70\ See 7 DE Admin Code 1101, defining ``Modification'' means
any physical change in, or change in the method of operation of, any
air contaminant source which results in an emission to the
atmosphere of a new air contaminant or an increase in the emission
rate to the atmosphere of one or more existing air contaminants.
Upon modification, an existing source shall become subject to 7 DE
Admin Code 1120 only with respect to those pollutants which, after
modification, are either newly emitted, or emitted at an increased
rate. Routine maintenance, repair and replacement shall not be
considered a modification. Conversion to coal required for energy
considerations, as specified in section 113(d)(5) of the 1977 Clean
Air Act, shall not be considered a modification. The relocation of
an existing facility shall be considered a modification whenever the
Department determines it necessary to maintain ambient air quality
standards. Change in ownership of an existing facility shall not be
considered a modification. This definition shall not apply to 7 DE
Admin Code 1125.
\71\ See 7 DE Admin Code 1101, ``Operating Permits,'' which
states that ``written notice that the operation of any air
contaminant source or control device has been approved by the
Department.''
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EPA proposes to find that Delaware reasonably determined it has
satisfied Ask 4. This is because the permitting and regulatory
requirements outlined above, including the fact that sources that have
switched fuel are generally required to revise their permits to reflect
the change, and because the State rules make any proposed reversion
difficult
[[Page 67034]]
by requiring permitting and other control analyses, including NSR.
Ask 5 requested that ``where emission rules have not been
adopted,'' MANE-VU States ``control NO<INF>X</INF> emissions for
peaking combustion turbines that have the potential to operate on
HEDD'' by meeting at least one of three options: (a) striving to meet
NO<INF>X</INF> emissions standards specified in the Ask for turbines
that run on natural gas and fuel oil, (b) performing a four-factor
analysis for reasonable installation of or upgrade to emission
controls, or (c) obtaining equivalent alternative emission reductions
on HEDD.\72\
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\72\ See appendix 8-12 ``MANE-VU Regional Haze Consultation
Report.''
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For Ask 5, EPA reviewed and evaluated Delaware's response to the
four-factor analyses on the five sources and found that the State
agreed with Calpine's conclusions for each of the sources. Delaware
agreed that it is economically and technically infeasible to retrofit
the sources' existing NO<INF>X</INF> controls or to add new
NO<INF>X</INF> controls to further reduce NO<INF>X</INF> emissions
during HEDD, because the units' operation and, hence, NO<INF>X</INF>
emissions are both limited. To support their conclusion, on table 10-5
of the SIP submittal, Delaware included the annual average operating
hours and NO<INF>X</INF> emissions of the sources for a five-year
period, which demonstrate the limited operation and the significantly
low NO<INF>X</INF> emissions in recent years (i.e., less than 4.5 tons
of NO<INF>X</INF> emitted per unit per year). EPA agrees with Delaware
that it is not reasonable to upgrade any of the sources' NO<INF>X</INF>
existing controls or to install new controls due to the extremely low
emission reductions that would have been achieved, and that the costs
of compliance, as demonstrated through the four-factor analyses, are
not justified by the low amount of NO<INF>X</INF> emission reductions
that the sources would achieve if these were reconfigured. More
information on the extremely low amount of NO<INF>X</INF> emitted from
these units with can be found in the TSD at 32-33.
EPA also reviewed and evaluated the State's selection and
modification of the applicable EGUs' title V permits to incorporate the
regional haze requirements of the second planning period. To meet Ask
5, DNREC updated ChEC, DEC, and WEC's Title V permits after conducting
four-factor analyses and added the 88 ppm NO<INF>X</INF> emission limit
during April and October. Delaware issued the new permits on May 19,
2021 and included them in appendix 10-2 of its SIP submittal; redacted
copies of these permits were subsequently resubmitted to EPA with an
effective date of December 19, 2023 so that the portions relevant to
compliance with the regional haze requirements of the second planning
period could be incorporated into the Delaware SIP.\73\ Based on the
above-mentioned facts, EPA thus agrees with Delaware's conclusions and
proposes to find that Delaware reasonably determined it has satisfied
Ask 5.
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\73\ DNREC public noticed the submission of the three Calpine
Title V permits to the Delaware SIP on February 4, 2024; these
permits were substantively identical to those issued by DNREC on May
21, 2021, and were updated to remove language designating the April
and October NO<INF>X</INF> limit as state enforceable only. DNREC
accepted public comment regarding the submittal of the permits to
the SIP through March 5, 2024. No public comment was received. DNREC
submitted the three permits as a supplement to its original Second
Visibility Plan to EPA on March 7, 2024. On May 28, 2024, DNREC
provided a clarification of this supplemental SIP submittal that
specified which provisions of the Title V permits it intended to be
incorporated by reference into the Delaware SIP. As a result, the 88
ppm NO<INF>X</INF> emission limit as extended to April and October
and related permit conditions will be federally enforceable. These
permits and their associated public notice and transmittal letters
are included in the rulemaking docket for this action.
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Through Ask 6, MANE-VU requests that ``each State should consider
and report in their SIP measures or programs to: (a) decrease energy
demand through the use of energy efficiency, and (b) increase the use
within their State of Combined Heat and Power (CHP) and other clean
Distributed Generation technologies including fuel cells, wind, and
solar.'' \74\ The fact that Delaware has listed its various greenhouse
gas initiatives and clean energy requirements within the State
including Executive Order 31--Energy Task Force, energy efficiency
initiatives such as the EEAC, grants programs, Delaware Energy Code
Coalition, and CHP Grant Pathway Program, RPS, RGGI, Delaware's Climate
Change Impact Assessment and a Climate Action Plan, suggests that
Delaware has in fact reasonably satisfied the Ask. EPA is therefore
proposing to find that Delaware has reasonably determined it has met
Ask 6's request to consider and report in its SIP measures or programs
related to energy efficiency, cogeneration, and other clean distributed
generation technologies.
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\74\ See appendix 8-12 ``MANE-VU Regional Haze Consultation
Report.''
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Based on all of the above, EPA is proposing to find that--based on
Delaware's participation in the MANE-VU planning process, how it has
addressed each of the Asks, its supplemental information and
explanation regarding NO<INF>X</INF> sources and emissions, and EPA's
additional assessment of Delaware's emissions and point sources--
Delaware has complied with the requirements of 40 CFR 51.308(f)(2).\75\
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\75\ More details about how Delaware met the requirements of 40
CFR 51.308(f)(2) can be found in the TSD of this rulemaking action.
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As explained above, Delaware relied on MANE-VU's technical analyses
and framework (i.e., the Asks) to select sources and form the basis of
its long-term strategy. MANE-VU conducted an inventory analysis to
identify the source sectors that produced the greatest amount of
SO<INF>2</INF> and NO<INF>X</INF> emissions in 2011; inventory data
were also projected to 2018. Based on this analysis, MANE-VU identified
the top-emitting sectors for each of the two pollutants, which for
SO<INF>2</INF> include coal-fired EGUs, industrial boilers, oil-fired
EGUs, and oil-fired area sources including residential, commercial, and
industrial sources. Major-emitting sources of NO<INF>X</INF> include
on-road vehicles, non-road vehicles, and EGUs. The RPO's documentation
explains that ``[EGUs] emitting SO<INF>2</INF> and NO<INF>X</INF> and
industrial point sources emitting SO<INF>2</INF> were found to be
sectors with high emissions that warranted further scrutiny. Mobile
sources were not considered in this analysis because any ask concerning
mobile sources would be made to EPA and not during the intra-RPO and
inter-RPO consultation process among the states and tribes.'' EPA
proposes to find that Delaware reasonably evaluated the two
pollutants--SO<INF>2</INF> and NO<INF>X</INF>--that currently drive
visibility impairment within the MANE-VU region and that it adequately
explained and supported its decision to focus on these two pollutants
through its reliance on the MANE-VU technical analyses cited in its
submission.
Section 51.308(f)(2)(i) requires States to evaluate and determine
the emission reduction measures that are necessary to make reasonable
progress by applying the four statutory factors to sources in a control
analysis. As explained previously, the MANE-VU Asks are a mix of
measures for sectors and groups of sources identified as reasonable for
States to address in their regional haze plans. While MANE-VU
formulated the Asks to be ``reasonable emission reduction strategies''
to control emissions of visibility impairing pollutants, EPA believes
that Delaware's responses to four of the Asks, in particular, engage
with the requirement that States determine the emission reduction
measures that are necessary to make reasonable progress through
consideration of the four factors. Specifically, MANE-VU Asks 1, 2, 3
[[Page 67035]]
and 5 engage with the requirement that States evaluate and determine
the emission reduction measures that are necessary to make reasonable
progress by considering the four statutory factors. EPA is proposing to
find that Delaware's approach to Asks 1, 2, 3 and 5 is reasonable
because it demonstrated that the sources and source sectors with
impacts on visibility either: (1) have reduced their emissions so
significantly that it is clear a four-factor analysis would not yield
further reasonable emission reductions, (2) completed four-factor
analyses and adopted economically feasible controls, or (3) are subject
to stringent emission control measures. Delaware's SIP-approved control
measures, emissions inventory \76\ and information provided in response
to comments \77\ demonstrate that the sources of SO<INF>2</INF> and
NO<INF>X</INF> within the State that would be expected to contribute to
visibility impairment have low emissions of NO<INF>X</INF> and
SO<INF>2</INF>, are well controlled, or both. Therefore, it is
reasonable to assume that selecting additional sources for four-factor
analysis would not have resulted in additional emission reduction
measures being determined to be necessary to make reasonable progress
for the second implementation period. EPA is proposing to incorporate
the redacted permits submitted on March 7, 2024 into the SIP.
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\76\ See appendix 1-1, ``Selection of States for MANE-VU
Regional Haze Consultation (2018)--Final''.
\77\ See the ``Response to Comment Memo'' document in the docket
of this rulemaking action.
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c. Additional Long-Term Strategy Requirements
The consultation requirements of 40 CFR 51.308(f)(2)(ii) provide
that States must consult with other States that are reasonably
anticipated to contribute to visibility impairment in a Class I Area to
develop coordinated emission management strategies containing the
emission reductions measures that are necessary to make reasonable
progress. Section 51.308(f)(2)(ii)(A) and (B) require States to
consider the emission reduction measures identified by other States as
necessary for reasonable progress and to include agreed upon measures
in their SIPs, respectively. Section 51.308(f)(2)(ii)(C) speaks to what
happens if States cannot agree on what measures are necessary to make
reasonable progress.
Delaware participated in and provided documentation of the MANE-VU
intra- and inter-RPO consultation processes and addressed the MANE-VU
Asks by providing information on the measures it has in place that
satisfy each Ask.<SUP>78 79</SUP> MANE-VU also documented disagreements
that occurred during consultation. MANE-VU noted in their Consultation
Report that upwind States expressed concern regarding the analyses the
RPO utilized for the selection of States for the consultation. MANE-VU
agreed that these tools, as all models, have their limitations, but
nonetheless deemed them appropriate. Additionally, there were several
comments regarding the choice of the 2011 modeling base year. MANE-VU
agreed that the choice of base year is critical to the outcome of the
study. MANE-VU acknowledged that there were newer versions of the
emission inventories and the need to use the best available inventory
for each analysis. However, MANE-VU disagreed that the choice of these
inventories was not appropriate for the analysis. Upwind States also
suggested that MANE-VU States adopt the 2021 timeline for regional haze
SIP submissions for the second planning period. MANE-VU agreed with the
reasons the comments provided, such as collaboration with data and
planning efforts. However, MANE-VU disagreed that the 2018 timeline
would prohibit collaboration. Additionally, upwind States noted that
they would not be able to address the MANE-VU Asks until they finalize
their SIPs. MANE-VU believed the assumption of the implementation of
the Asks from upwind States in its 2028 control case modeling was
reasonable.
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\78\ See appendix 9-2 ``Inter-RPO Consultation Briefing Book;''
appendix 8-12 ``MANE-VU Regional Haze Consultation Report;'' and
appendix 8-13 ``National Park Service Letters (April 2018).''
\79\ See appendix 4-1 ``Federal Land Manager Comments and
Delaware Response;'' and document ``7. Response to Comment Memo.''
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In sum, Delaware participated in the MANE-VU intra- and inter-RPO
consultation and satisfied the MANE-VU Asks, satisfying 40 CFR
51.308(f)(2)(ii)(A) and (B). Delaware satisfied 40 CFR
51.308(f)(2)(ii)(C) by participating in MANE-VU's consultation process,
which documented the disagreements between the upwind States and MANE-
VU and explained MANE-VU's reasoning on each of the disputed issues.
Based on the entirety of MANE-VU's intra- and inter-RPO consultation
and both MANE-VU's and Delaware's responses to States' comments on the
SIP submission and various technical analyses therein, we propose to
determine that Delaware has satisfied the consultation requirements of
40 CFR 51.308(f)(2)(ii).
The documentation requirement of 40 CFR 51.308(f)(2)(iii) provides
that States may meet their obligations to document the technical bases
on which they are relying to determine the emission reductions measures
that are necessary to make reasonable progress through an RPO, as long
as the process has been ``approved by all State participants.'' As
explained above, Delaware chose to rely on MANE-VU's technical
information, modeling, and analysis to support development of its long-
term strategy. The MANE-VU technical analyses on which Delaware relied
are listed in the State's SIP submission and include source
contribution assessments, information on each of the four factors and
visibility modeling information for certain EGUs, and evaluations of
emission reduction strategies for specific source categories. Delaware
also provided supplemental information to further demonstrate the
technical bases and emission information on which it relied on to
determine the emission reductions measures that are necessary to make
reasonable progress. Based on the documentation provided by the State,
we propose to find Delaware satisfies the requirements of 40 CFR
51.308(f)(2)(iii).
Section 51.308(f)(2)(iii) also requires that the emissions
information considered to determine the measures that are necessary to
make reasonable progress include information on emissions for the most
recent year for which the State has submitted triennial emissions data
to EPA (or a more recent year), with a 12-month exemption period for
newly submitted data. Delaware's SIP submission included 2017 NEI
emission data for NO<INF>X</INF>, SO<INF>2</INF>, PM, VOCs and
NH<INF>3</INF>, and 2017 Air Markets Program Data (AMPD) emissions for
NO<INF>X</INF> and SO<INF>2</INF>. Delaware's SIP submission also
included 2019 AMPD for NO<INF>X</INF> and SO<INF>2</INF>.\80\ Based on
Delaware's consideration and analysis of the 2017 and 2019 emission
data in their SIP submittal and supplemental documentation, EPA
proposes to find that Delaware has satisfied the emissions information
requirement in 40 CFR 51.308(f)(2)(iii).
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\80\ See section 7.1 of the DE Regional Haze SIP submittal.
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We also propose to find that Delaware reasonably considered the
five additional factors in 40 CFR 51.308(f)(2)(iv) in developing its
long-term strategy. Pursuant to 40 CFR 51.308(f)(2)(iv)(A), Delaware
noted that existing and ongoing State and Federal emission control
programs that contribute to emission reductions through 2028 would
impact emissions of visibility impairing pollutants from point and
nonpoint sources in the second implementation period.
[[Page 67036]]
Delaware included in its SIP comprehensive lists of control measures
with their effective dates, pollutants addressed, and corresponding
Delaware Administrative Code provisions.\81\
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\81\ See section 8.6. of the DE Regional Haze SIP submittal.
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Delaware's consideration of measures to mitigate the impacts of
construction activities as required by 40 CFR 51.308(f)(2)(iv)(B) began
during the Regional Haze first implementation period. Delaware
indicated that it has regulations that mitigate potential impacts of
construction on visibility such as the 7 DE Admin Code 1106, which
regulates particulate emissions from construction and materials
handling in the State. In addition, Delaware stated that based on the
2017 NEI, commercial construction emissions of PM<INF>2.5</INF> were
135 tons, which makes up only 3% of the PM<INF>2.5</INF> emissions
inventory within the State. Delaware concluded that ``Because the
contribution from construction dust is small, Delaware is determining
that no changes in its regulatory program for construction dust is
necessary to make reasonable progress.'' \82\
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\82\ 7 DE Admin Code 1106--Particulate Emissions from
Construction and Materials Handling.
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Pursuant to 40 CFR 51.308(f)(2)(iv)(C), source retirements and
replacement schedules are addressed in section 8.8 of Delaware's
submission. Source retirements and replacements were considered in
developing the 2028 emission projections, with on the books/on the way
retirements and replacements included in the 2028 projections, with on
the books/on the way retirements and replacements included in the 2028
projections. The EGU point sources included in the inventories used in
the MANE-VU contribution assessment and that were subsequently retired
are identified in Delaware's SIP submittal as McKee Run and Indian
River Generating Stations. No non-EGU point source retirements in
Delaware were considered when developing the 2028 emissions
projections.
In considering smoke management as required in 40 CFR
51.308(f)(2)(iv)(D), Delaware explained, in section 8.9 of its
submission, that emission contribution from prescribed agricultural and
forest burning within the State are low; PM<INF>2.5</INF> statewide
emissions from prescribed fires were 36 tons and emissions from
agricultural burning were 60 tons (2% of Delaware's overall
PM<INF>2.5</INF> emissions inventory). Delaware therefore concludes
that it is unlikely that fires in Delaware for agricultural or forestry
management cause impacts on visibility in the MANE-VU and nearby Class
I Areas, including the Brigantine Wilderness Class I Area. Delaware
states that Smoke Management Plans (SMPs) is a required element of a
SIP only if it is required to make reasonable progress, and that
Delaware does not need an official SMP since both a speciation trends
analysis report \83\ and Delaware's 2014 emissions inventory data show
that agricultural and forestry management woodsmoke emissions are low.
However, Delaware notes that under 7 DE Admin 1113 for Open Burning,
during the months of May to September, both prescribed and agricultural
burning are prohibited, and even though DNREC does not consider open
burning regulation an SMP, the regulation does benefit Class I Areas to
some degree.
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\83\ See appendix 8-8 ``Hopke Report''.
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Delaware considered the anticipated net effect of projected changes
in emissions as required by 51.308(f)(2)(iv)(E) by discussing, in
section 8.10 of its submission, the photochemical modeling for the
2018-2028 period it conducted in collaboration with MANE-VU. The two
modeling cases run were a 2028 base case, which considered only on-the-
books controls, and a 2028 control case that considered implementation
of the MANE-VU Ask. Delaware presented the differences between the base
and control cases on the 20% most impaired and 20% clearest days for
each MANE-VU Class I Area.\84\
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\84\ See Figure 8-2 of DE Regional Haze SIP submittal at 86.
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Because Delaware has reasonably considered each of the five
additional factors, EPA proposes to find that Delaware has satisfied
the requirements of 40 CFR 51.308(f)(2)(iv).
F. Reasonable Progress Goals
Section 51.308(f)(3) contains the requirements pertaining to RPGs
for each Class I Area. Section 51.308(f)(3)(i) requires a State in
which a Class I Area is located to establish RPGs--one each for the
most impaired and clearest days--reflecting the visibility conditions
that will be achieved at the end of the implementation period as a
result of the emission limitations, compliance schedules and other
measures required under paragraph (f)(2) to be in States' long-term
strategies, as well as implementation of other CAA requirements. The
long-term strategies as reflected by the RPGs must provide for an
improvement in visibility on the most impaired days relative to the
baseline period and ensure no degradation on the clearest days relative
to the baseline period. Section 51.308(f)(3)(ii) applies in
circumstances in which a Class I Area's RPG for the most impaired days
represents a slower rate of visibility improvement than the uniform
rate of progress calculated under 40 CFR 51.308(f)(1)(vi). Under 40 CFR
51.308(f)(3)(ii)(A), if the State in which a mandatory Class I Area is
located establishes an RPG for the most impaired days that provides for
a slower rate of visibility improvement than the URP, the State must
demonstrate that there are no additional emission reduction measures
for anthropogenic sources or groups of sources in the State that would
be reasonable to include in its long-term strategy. Section
51.308(f)(3)(ii)(B) requires that if a State contains sources that are
reasonably anticipated to contribute to visibility impairment in a
Class I Area in another State, and the RPG for the most impaired days
in that Class I Area is above the URP, the upwind State must provide
the same demonstration. Because Delaware has no Class I Areas within
its borders, it is subject only to 40 CFR 51.308(f)(3)(ii)(B).
Under 40 CFR 51.308(f)(3)(ii)(B), a State that contains sources
that are reasonably anticipated to contribute to visibility impairment
in a Class I Area in another State for which a demonstration by the
other State is required under 40 CFR 51.308(f)(3)(ii)(B) must
demonstrate that there are no additional emission reduction measures
that would be reasonable to include in its long-term strategy.
Delaware's SIP submittal included MANE-VU's glidepath checks for nearby
downwind Class I Areas,\85\ such as the Brigantine Wilderness Class I
Area,\86\ which show that the RPG for the 20 percent most
anthropogenically impaired days for the affected downwind Class I Areas
(Acadia, Moosehorn, Great Gulf, Lye Brook, Brigantine, Shenandoah,
Dolly Sods and James River Face) are not above the URP glidepath, and
that the RPG for the 20 percent clearest days shows no degradation. In
addition, the modeled MANE-VU 2028 visibility projections at nearby
Class I Areas show that the base case 2028 projections for the most
impaired days at these areas are below the respective 2028 points on
the URPs. Therefore, we propose it is reasonable to assume that the
demonstration requirement under 40 CFR
[[Page 67037]]
51.308(f)(3)(ii)(B) as it pertains to these areas will not be
triggered.
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\85\ See appendix 8-6 ``Regional Haze Metrics Trends and HYSPLIT
Trajectory Analyses''.
\86\ See Figure 8-2 ``Brigantine Wilderness Area Haze Metrics
Trends'' in the DE Regional Haze SIP submittal at 86.
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EPA proposes to determine that Delaware has satisfied the
applicable requirements of 40 CFR 51.308(f)(3) relating to RPGs.
G. Monitoring Strategy and Other Implementation Plan Requirements
Section 51.308(f)(6) specifies that each comprehensive revision of
a State's regional haze SIP must contain or provide for certain
elements, including monitoring strategies, emissions inventories, and
any reporting, recordkeeping and other measures needed to assess and
report on visibility. A main requirement of this section is for States
with Class I Areas to submit monitoring strategies for measuring,
characterizing, and reporting on visibility impairment. Compliance with
this requirement may be met through participation in the IMPROVE
network.
Section 51.308(f)(6)(i) requires SIPs to provide for the
establishment of any additional monitoring sites or equipment needed to
assess whether reasonable progress goals to address regional haze for
all mandatory Class I Areas within the State are being achieved.
Section 51.308(f)(6)(ii) requires SIPs to provide for procedures by
which monitoring data and other information are used in determining the
contribution of emissions from within the State to regional haze
visibility impairment at mandatory Class I Areas both within and
outside the State. Because Delaware does not have any Class I Areas
located within its borders, Sec. 51.308(f)(6)(i) and (ii) do not
apply.
Section 51.308(f)(6)(iii) requires States with no Class I Areas to
include procedures by which monitoring data and other information are
used in determining the contribution of emissions from within the State
to regional haze visibility impairment at Class I Areas in other
States. States with Class I Areas must establish a monitoring program
and report data to EPA that is representative of visibility at the
Class I Areas. The IMPROVE network meets this requirement. Delaware
stated that, it has conducted receptor modeling and emissions inventory
analysis to determine source contributions from within the State, and
the proportional impacts of those sources to areas outside the State.
Even though, Delaware does not have IMPROVE monitors, Delaware agrees
that NESCAUM is providing quality technical information by using the
IMPROVE program data and the Visibility Information Exchange Web System
(VIEWS) site for the regional haze purposes.
Section 51.308(f)(6)(iv) requires the SIP to provide for the
reporting of all visibility monitoring data to the Administrator at
least annually for each Class I Area in the State. As noted above,
Delaware does not have any Class I Areas located within its borders,
therefore this requirement does not apply.
Section 51.308(f)(6)(v) requires SIPs to provide for a statewide
inventory of emissions of pollutants that are reasonably anticipated to
cause or contribute to visibility impairment, including emissions for
the most recent year for which data are available and estimates of
future projected emissions. It also requires a commitment to update the
inventory periodically. Delaware provides for emissions inventories and
estimates for future projected emissions by participating in the MANE-
VU RPO and complying with EPA's Air Emissions Reporting Rule (AERR). In
40 CFR part 51, subpart A, the AERR requires States to submit updated
emissions inventories for criteria pollutants to EPA's Emissions
Inventory System (EIS) every three years. The emission inventory data
is used to develop the NEI, which provides for, among other things, a
triennial state-wide inventory of pollutants that are reasonably
anticipated to cause or contribute to visibility impairment.
Section 7 of Delaware's submission includes tables of NEI data. The
source categories of the emissions inventories included are: (1) point
sources, (2) nonpoint sources, (3) non-road mobile sources, and (4) on-
road mobile sources. The point source category is further divided into
AMPD point sources and non-AMPD point sources.\87\ Delaware included
NEI emissions inventories for the following years: 2002 (one of the
regional haze program baseline years), 2008, 2011, 2014, and 2017; \88\
and for the following pollutants: NO<INF>X</INF>, PM<INF>10</INF>,
PM<INF>2.5</INF>, SO<INF>2</INF>, VOCs, and NH<INF>3</INF>. Delaware
also provided a summary of SO<INF>2</INF> and NO<INF>X</INF> emissions
for AMPD sources for the years of 2016, 2017, 2018, and 2019.\89\
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\87\ AMPD sources are facilities that participate in EPA's
emission trading programs. The majority of AMPD sources are EGUs.
\88\ See section 7 of the DE Regional Haze SIP submittal at 29.
\89\ See sections 7.1.1 and 7.1.4 in the Delaware Regional Haze
SIP submittal.
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Section 51.308(f)(6)(v) also requires States to include estimates
of future projected emissions and include a commitment to update the
inventory periodically. Delaware relied on the MANE-VU 2028 emissions
projections for MANE-VU States. MANE-VU completed two 2028 projected
emissions modeling cases--a 2028 base case that considers only on-the-
books controls and a 2028 control case that considers implementation of
the MANE-VU Asks.\90\
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\90\ See appendix 7-2 ``OTC MANE-VU 2011 Based Modeling Platform
Support Document October 2018--Final.''
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EPA proposes to find that Delaware has met the requirements of 40
CFR 51.308(f)(6) as described above, including through its continued
participation in the IMPROVE network and the MANE-VU RPO and its
ongoing compliance with the AERR, and that no further elements are
necessary at this time for Delaware to assess and report on visibility
pursuant to 40 CFR 51.308(f)(6)(vi).
H. Requirements for Periodic Reports Describing Progress Towards the
Reasonable Progress Goals
Section 51.308(f)(5) requires that periodic comprehensive revisions
of States' regional haze plans also address the progress report
requirements of 40 CFR 51.308(g)(1) through (5). The purpose of these
requirements is to evaluate progress towards the applicable RPGs for
each Class I Area within the State and each Class I Area outside the
State that may be affected by emissions from within that State. Section
51.308(g)(1) and (2) apply to all States and require a description of
the status of implementation of all measures included in a State's
first implementation period regional haze plan and a summary of the
emission reductions achieved through implementation of those measures.
Section 51.308(g)(3) applies only to States with Class I Areas within
their borders and requires such States to assess current visibility
conditions, changes in visibility relative to baseline (2000-2004)
visibility conditions, and changes in visibility conditions relative to
the period addressed in the first implementation period progress
report. Section 51.308(g)(4) applies to all States and requires an
analysis tracking changes in emissions of pollutants contributing to
visibility impairment from all sources and sectors since the period
addressed by the first implementation period progress report. This
provision further specifies the year or years through which the
analysis must extend depending on the type of source and the platform
through which its emission information is reported. Finally, 40 CFR
51.308(g)(5), which also applies to all States, requires an assessment
of any significant changes in
[[Page 67038]]
anthropogenic emissions within or outside the State that have occurred
since the period addressed by the first implementation period progress
report, including whether such changes were anticipated and whether
they have limited or impeded expected progress towards reducing
emissions and improving visibility.
Delaware's submission describes the status of measures of the long-
term strategy from the first implementation period. As a member of
MANE-VU, Delaware considered the MANE-VU Asks and adopted corresponding
measures into its long-term strategy for the first implementation
period. The MANE-VU Asks were: (1) timely implementation of BART
requirements; (2) EGU controls including Controls at 167 Key Sources
that most affect MANE-VU Class I Areas; (3) low sulfur fuel oil
strategy; and (4) continued evaluation of other control measures.
Delaware met all the identified reasonable measures requested during
the first implementation period. During the first planning period for
regional haze, programs that were put in place focused on reducing
SO<INF>2</INF> emissions. The reductions achieved led to vast
improvements in visibility at the MANE-VU Class I Areas due to reduced
sulfates formed from SO<INF>2</INF> emissions. Delaware describes in
section 11 of its submittal control measures put in place during the
first implementation period to help reduce the emissions of visibility
impairing pollutants, including NO<INF>X</INF> and SO<INF>2</INF>. This
includes a non-trading emissions control regulation \91\ for EGUs to
aid in the attainment of ozone and PM ambient air quality standards and
reduce emissions of neurotoxin mercury. Delaware Stated that the
regulation ``provides for stringent control of EGU NOX and SO2
emissions by implementation of unit-specific annual NOX and SO2 mass
emissions caps and short term (rolling 24-hour) NOX and SO2 emission
rate limits (lb/MMBTU).'' Delaware added that implementation of the 7
DE Admin Code 1146, among other measures, like related consent decrees
and permit conditions, have served to significantly reduce Delaware's
NO<INF>X</INF> and SO<INF>2</INF> emissions from the EGUs that were
subject to it and demonstrated it in table 10-8 and Figure 10-1 of the
DE Regional Haze SIP submittal. The first step change reduction of
NO<INF>X</INF> and SO<INF>2</INF> emissions happened in 2009,
corresponding to the promulgation of 7 DE Admin Code 1146. Based on the
data, by 2019, the EGUs that were subject to this State regulation had
reduced their SO<INF>2</INF> and NO<INF>X</INF> mass emissions by
30,197 tpy and 8,005 tpy, which is approximately 99% and 98% emissions
reductions, respectively.
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\91\ See 7 DE Admin Code 1146 ``Electric Generating Unit Multi-
Pollutant Regulation.''
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Delaware also described the status of the implementation of primary
particulate matter BART for the respective eligible EGUs, how they were
able to meet the 90% or greater SO<INF>2</INF> reduction emissions at
167 stacks inside and outside of MANE-VU, their low sulfur fuel oil
standards \92\ for the State, and the status of other control methods
\93\ established during and after the first implementation period.
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\92\ See DE Regional Haze SIP submittal section 10.3 at 109.
\93\ See DE Regional Haze SIP submittal section 8.6 at 76.
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EPA proposes to find that Delaware has met the requirements of 40
CFR 51.308(g)(1) and (2) because its SIP submission describes the
measures included in the long-term strategy from the first
implementation period, as well as the status of their implementation
and the emission reductions achieved through such implementation.
Section 51.308(g)(3) requires States to assess Reasonable Progress
Goals, including current visibility conditions and changes, for any
Class I Areas within the State. As described above, Delaware does not
have any Class I Areas within its borders, therefore Sec. 51.308(g)(3)
does not apply.
Pursuant to 40 CFR 51.308(g)(4), in section 7 of their submittal,
Delaware provided a summary of emissions of NO<INF>X</INF>,
PM<INF>10</INF>, PM<INF>2.5</INF>, SO<INF>2</INF>, VOCs, and
NH<INF>3</INF> from all sources and activities, including from point,
nonpoint, non-road mobile, and on-road mobile sources, for the time
period from 2002 to 2017. Delaware also included AMPD data for
SO<INF>2</INF> and NO<INF>X</INF> emissions for 2016, 2017, 2018 and
2019 in their submission.
The reductions achieved by Delaware emission control measures are
seen in the emissions inventory. Based on Delaware's SIP submission,
NO<INF>X</INF> emissions have continuously declined in Delaware from
2002 through 2017, especially in the point, nonroad and onroad mobile
sectors. During that period, onroad sources contributed almost half of
the emissions at 41%, followed by area sources at 21%. Nonroad sources
contributed 15% and point sources contributed the least at 14%. Table
7-2 of Delaware's SIP submittal also shows additional NO<INF>X</INF>
emissions data from 2016 to 2019 for Delaware's point sources that
report to EPA's AMPD.\94\ NO<INF>X</INF> emissions are expected to
continue to decrease as fleet turnover occurs and the older more
polluting vehicles and equipment are replaced by newer, cleaner
ones.\95\
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\94\ See DE Regional Haze SIP submittal section 7.1.1.
\95\ Id
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Emissions of PM<INF>10</INF> have generally remained relatively
stable and in a downward trend in Delaware from 2002 to 2017,
particularly in the point, nonroad and onroad sectors, see section
7.1.2 and table 7-7 of Delaware's SIP submittal. The variations in the
onroad are due to changes in emission inventory calculation
methodologies, which resulted in higher particulate matter estimates in
the other years than in 2002. The large variation in emissions in the
nonpoint category is due to changes in calculation methodologies for
residential wood burning and fugitive dust categories, which have
varied significantly. Similar trends are observed for emissions of
PM<INF>2.5</INF> in Delaware from 2002 to 2017, see section 7.1.3 and
table 7-10 of Delaware's SIP submittal. As with PM<INF>10</INF>, some
of the variations could be due to changes in estimation methodologies
for categories such as yard waste burning, paved and unpaved road dust
and residential wood combustion.
Emissions of SO<INF>2</INF> have shown a steady significant decline
in Delaware over the period 2002 to 2017, across all multiple
sectors.\96\ Delaware stated that these reductions are primarily due to
promulgation of 7 DE Admin Code 1146 and 1108.\97\ Additionally, some
of these decreases are attributable to the MANE-VU low sulfur fuel
strategy and the 90% or greater reduction in SO<INF>2</INF> emissions
at 167 EGU stacks, both inside and outside of MANE-VU, requested in the
``Non-MANE-VU Ask'' for States within MANE-VU for the first regional
haze planning period.\98\
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\96\ See section 7.1.4 and table 7-15 of DE Regional Haze SIP
submittal.
\97\ Id.
\98\ Statement of the Mid-Atlantic/Northeast Visibility Union
(MANE-VU) Concerning a Course of Action within MANE-VU Toward
Assuring Reasonable Progress. (<a href="http://otcair.org/MANEVU/Upload/Publication/Formal%20Actions/Statement%20on%20Controls%20in%20MV_072007.pdf">otcair.org/MANEVU/Upload/Publication/Formal%20Actions/Statement%20on%20Controls%20in%20MV_072007.pdf</a>).
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Table 7-21 of Delaware's SIP submittal shows VOC emissions from all
NEI data categories for the period 2002 to 2017 in Delaware, which have
shown a steady decline. VOC decreases were achieved in all sectors due
to Federal and State rules for evaporative sources of VOC emissions
such as portable fuel containers; architectural, industrial, and
maintenance coatings (AIM); adhesives and sealants, consumer products;
and solvent degreasing.\99\ The State added
[[Page 67039]]
that other decreases are due to States' VOC RACT rules and due to State
motor vehicle Inspection & Maintenance (I&M) programs and the
permeation of more on-board refueling vapor recovery (ORVR) equipped
vehicles into the fleet.
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\99\ Delaware added that the State has promulgated regulations
for portable fuel containers, AIM coatings, adhesives and sealants,
consumer products and solvent degreasing. See section 8.6.3 of DE's
Regional Haze SIP submittal.
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Emissions of NH<INF>3</INF> have shown declines in Delaware from
2002 to 2017; see section 7.1.6 and table 7-24 of Delaware's SIP
submittal. Ammonia decreases were achieved in the onroad sector due to
Federal new engine standards for vehicles and equipment. Nonpoint
increases and decreases from 2002 to 2014 are due to reporting,
grouping and methodology changes. While ammonia emissions were stable
between 2014 and 2017 inventories, there was a slight increase in
ammonia emissions from 2011 and 2014. The increase is due to
methodology changes and the addition of NH<INF>3</INF> emissions from
domestic and wild animals in 2014.
EPA is proposing to find that Delaware has satisfied the
requirements of 40 CFR 51.308(g)(4) by providing emissions information
for NO<INF>X</INF>, PM<INF>10</INF>, PM<INF>2.5</INF>, SO<INF>2,</INF>
VOCs, and NH<INF>3</INF> broken down by type of source.
Delaware uses the emissions trend data in the SIP submission \100\
and supporting MANE-VU information \101\ provided to support the
assessment that anthropogenic haze-causing pollutant emissions in
Delaware have decreased during the reporting period and that changes in
emissions have not limited or impeded progress in reducing pollutant
emissions and improving visibility. Delaware's 2017 emission
inventories for NO<INF>X</INF>, PM<INF>10</INF>, PM<INF>2.5</INF>,
SO<INF>2</INF>, VOCs, and NH<INF>3</INF> were lower than their 2014
emission inventories for those same pollutants emissions.\102\ EPA is
proposing to find that Delaware has met the requirements of 40 CFR
51.308(g)(5).
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\100\ See section 7 of the DE Regional Haze SIP Submittal.
\101\ See appendices 7-1 and 7-2, ``Technical Support Document
for 2011 for the Northeastern U.S. Gamma Inventory (January 2018)''
and ``Ozone Transport Commission/Mid-Atlantic Northeastern
Visibility Union 2011 Based Modeling Platform Support Document--
October 2018 Update (October 2018),'' respectively.
\102\ See section 7 of the DE Regional Haze SIP Submittal.
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I. Requirements for State and Federal Land Manager Coordination
Section 169A(d) of the Clean Air Act requires States to consult
with FLMs before holding the public hearing on a proposed regional haze
SIP, and to include a summary of the FLMs' conclusions and
recommendations in the notice to the public. In addition, 40 CFR
51.308(i)(2)'s FLM consultation provision requires a State to provide
FLMs with an opportunity for consultation that is early enough in the
State's policy analyses of its emission reduction obligation so that
information and recommendations provided by the FLMs can meaningfully
inform the State's decisions on its long-term strategy. If the
consultation has taken place at least 120 days before a public hearing
or public comment period, the opportunity for consultation will be
deemed early enough. Regardless, the opportunity for consultation must
be provided at least sixty days before a public hearing or public
comment period at the State level. Section 51.308(i)(2) also provides
two substantive topics on which FLMs must be provided an opportunity to
discuss with States: assessment of visibility impairment in any Class I
Area and recommendations on the development and implementation of
strategies to address visibility impairment. Section 51.308(i)(3)
requires States, in developing their implementation plans, to include a
description of how they addressed FLMs' comments.
The States in the MANE-VU RPO conducted FLM consultation early in
the planning process concurrent with the state-to-state consultation
that formed the basis of the RPO's decision making process. As part of
the consultation, the FLMs were given the opportunity to review and
comment on the technical documents developed by MANE-VU. The FLMs were
invited to attend the intra- and inter-RPO consultations calls among
States and at least one FLM representative was documented to have
attended seven intra-RPO meetings and all inter-RPO meetings. Delaware
participated in these consultation meetings and calls.\103\
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\103\ See appendices 9-1, 9-3 and 9-4 of the DE Regional Haze
SIP submittal, ``MANE-VU Intra-Regional Ask,'' ``Inter-RPO Ask,''
and ``MANE-VU FLM Ask,'' respectively.
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As part of this early engagement with the FLMs, on April 12, 2018,
the NPS sent letters to the MANE-VU States requesting that they
consider specific individual sources in their long-term
strategies.\104\ NPS used an analysis of emissions divided by distance
(Q/d) to estimate the impact of MANE-VU facilities. To select the
facilities, NPS first summed 2014 NEI NO<INF>X</INF>, PM<INF>10</INF>,
SO<INF>2</INF>, and SO<INF>4</INF> emissions and divided by the
distance to a specified NPS mandatory Class I Federal area. NPS summed
the Q/d values across all MANE-VU States relative to Acadia, Mammoth
Cave and Shenandoah National Parks, ranked the Q/d values relative to
each Class I Area, created a running total, and identified those
facilities contributing to 80% of the total impact at each NPS Class I
Area. NPS applied a similar process to facilities in Maine relative to
Acadia National Park. NPS merged the resulting lists of facilities and
sorted them by their States. NPS suggested that a State consider those
facilities comprising 80% of the Q/d total, not to exceed the 25 top
ranked facilities. The NPS identified two facilities in Delaware in
this letter.\105\ Delaware included the NPS initial letter in their
proposed SIP. In a subsequent letter dated October 22, 2018, NPS
identified two facilities for which more control information was
desired. Delaware detailed the emission controls and updates to the two
facilities to address the NPS's request for more information.\106\
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\104\ Id.
\105\ See appendix 8-13 ``National Park Service Letters.''
\106\ See appendix 4-1 ``Federal Land Manager Comments and
Delaware Response.''
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On February 11, 2021, Delaware submitted a draft Regional Haze SIP
to the U.S. Forest Service, the U.S. Fish and Wildlife Service, and the
National Park Service for a 60-day review and comment period pursuant
to 40 CFR 51.308(i)(2).\107\ Delaware received comments from the Forest
Service on March 31, 2021, and from the National Park Service on April
9, 2021. Delaware responded to the FLM comments and included the
responses in appendix 4-1 of their submission to EPA, in accordance
with 40 CFR 51.308(i)(3). Notices of the proposed SIP, availability and
the public hearing were published on DNREC's website and in the
Delaware Register, and interested parties were emailed the notice,
along with air quality contacts from other States, air quality regional
organizations and the EPA. A public hearing on the proposed SIP
revision was held on December 29, 2021. Written comments relevant to
the proposal were accepted until the close of business January 13,
2022.
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\107\ Id.
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For the reasons stated above, EPA proposes to find that Delaware
has satisfied the requirements under 40 CFR 51.308(i) to consult with
the FLMs on its regional haze SIP for the second implementation period.
Delaware's August 2022 SIP submission includes a commitment to
revise and submit a regional haze SIP by July 31, 2028, and every ten
years thereafter. The State's commitment includes submitting periodic
progress reports in accordance with 40 CFR 51.308(f) and a commitment
to evaluate
[[Page 67040]]
progress towards the reasonable progress goal for each mandatory Class
I Area located within the State and in each mandatory Class I Area
located outside the State that may be affected by emissions from within
the State in accordance with 40 CFR 51.308(g).\108\
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\108\ See section 12, ``Determination of the Adequacy of the
Existing Plan'' of the DE Regional Haze SIP submittal.
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V. Proposed Action
EPA is proposing to approve Delaware's August 8, 2022, SIP
submission, and supplemental SIP submission dated March 7, 2024, as
satisfying the regional haze requirements for the second implementation
period contained in 40 CFR 51.308(f).
VI. Incorporation by Reference
In accordance with requirements of 1 CFR 51.5, EPA is proposing to
incorporate by reference specific provisions of the revised title V
permits for Calpine Christiana Energy Center, Calpine Delaware City
Energy Center, and Calpine West Energy Center, dated and effective
December 19, 2023, between DNREC and Calpine Mid-Atlantic Generation,
LLC, which includes emission limits and associated permit conditions
for these facilities to comply with Regional Haze requirements for the
2nd Planning Period, as discussed in section IV of this preamble. These
permit revisions are contained in DNREC's supplemental SIP submittal
dated March 7, 2024, submitted on behalf of the State of Delaware; the
portions of these permit revisions that will be incorporated by
reference into the SIP are clarified by the DNREC Air Quality Division
Director via a letter dated May 28, 2024. EPA has made, and will
continue to make, these materials generally available through
<a href="http://www.regulations.gov">www.regulations.gov</a> and at the EPA Region 3 Office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information). Therefore, these materials have
been proposed for approval by EPA for inclusion in the SIP, will be
incorporated by reference by EPA into that plan, will be fully
federally enforceable under sections 110 and 113 of the CAA as of the
effective date of the final rule of EPA's approval, and will be
incorporated by reference in the next update to the SIP compilation.
VII. 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,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this proposed action:
<bullet> Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
<bullet> Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
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.'' The Delaware
Department of Natural Resources and Environmental Control 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.
In addition, this proposed rulemaking action, pertaining to
Delaware's regional haze SIP submission for the second planning period,
is not approved to apply on any Indian reservation land or in any other
area where the EPA or an Indian tribe has demonstrated that a tribe has
jurisdiction. In those areas of Indian country, the rule does not have
Tribal implications and will not impose substantial direct costs on
Tribal governments or preempt Tribal law as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
Adam Ortiz,
Regional Administrator, Region III.
[FR Doc. 2024-18174 Filed 8-16-24; 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.