Proposed Rule2026-08373
Air Plan Approval; Delaware; Excess Emissions Provisions Pertaining to Periods of Startup, Shutdown and Malfunction Events
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Published
April 30, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve revisions to the state implementation plan (SIP) for three state regulations submitted by the State of Delaware through the Delaware Department of Natural Resources and Environmental Control (DNREC) on February 3, 2025. The proposed 2025 revisions to the SIP amend certain startup and shutdown provisions in a manner that avoids the deficiencies that the EPA identified in a disapproval action dated October 23, 2023, in which the Agency disapproved portions of a prior SIP revision dated November 22, 2016. This action is being taken under section 110 of the Clean Air Act (CAA).
Full Text
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<title>Federal Register, Volume 91 Issue 83 (Thursday, April 30, 2026)</title>
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[Federal Register Volume 91, Number 83 (Thursday, April 30, 2026)]
[Proposed Rules]
[Pages 23206-23209]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-08373]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2025-0215; FRL-13068-01-R3]
Air Plan Approval; Delaware; Excess Emissions Provisions
Pertaining to Periods of Startup, Shutdown and Malfunction Events
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to the state implementation plan (SIP) for three
state regulations submitted by the State of Delaware through the
Delaware Department of Natural Resources and Environmental Control
(DNREC) on February 3, 2025. The proposed 2025 revisions to the SIP
amend certain startup and shutdown provisions in a manner that avoids
the deficiencies that the EPA identified in a disapproval action dated
October 23, 2023, in which the Agency disapproved portions of a prior
SIP revision dated November 22, 2016. This action is being taken under
section 110 of the Clean Air Act (CAA).
DATES: Written comments must be received on or before June 1, 2026.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2025-0215 at <a href="http://www.regulations.gov">www.regulations.gov</a>, or via email to
<a href="/cdn-cgi/l/email-protection#63040c11070c0d4d0e0a0806230613024d040c15"><span class="__cf_email__" data-cfemail="27404855434849094a4e4c426742574609404851">[email protected]</span></a>. For comments submitted at <a href="http://Regulations.gov">Regulations.gov</a>, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. For either
manner of submission, 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: Bryan Cashman, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, 1600 John F Kennedy
Boulevard, Philadelphia, Pennsylvania 19103. The telephone number is
(215) 814-2012. Mr. Cashman can also be reached via electronic mail at
<a href="/cdn-cgi/l/email-protection#791a180a11141817571b0b001817391c0918571e160f"><span class="__cf_email__" data-cfemail="e88b899b80858986c68a9a918986a88d9889c68f879e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On February 3, 2025, the State of Delaware
through DNREC submitted four separate SIP revisions to correct
deficiencies identified in a prior 2023 action in which the EPA
disapproved portions of a SIP revision dated November 22, 2016 (88 FR
72688; October 23, 2023). The EPA determined in the 2023 disapproval
action that provisions in the 2016 SIP revision did not address the
deficiencies identified in the EPA's June 2015 SIP Call (80 FR 33840,
June 12, 2015) related to exemptions during periods of startup,
shutdown, and malfunction (SSM) from the otherwise applicable SIP
emission limitations, and the SIP submission contained insufficient
analysis to meet the requirements of section 110(l) of CAA.
In response, Delaware amended the following four state regulations
relating: excess emissions during SSM events that comprise the SIP
revisions submitted February 3, 2025: 7 Delaware Administrative Code
(DE Admin. Code) 1104--Particulate Emissions from Fuel Burning
Equipment; 7 DE Admin. Code 1105--Particulate Emissions from Industrial
Process Operations; 7 DE Admin. Code 1109--Emission of Sulfur Compounds
from Industrial Operations; and 7 DE Admin. Code 1114--Visible
Emissions. In this proposed rulemaking, the EPA is proposing to approve
the amendments to the following three state regulations into the
State's SIP: 7 DE Admin. Code 1104, 1105, and 1109. Delaware submitted,
and the EPA views the SIP revisions for each of the three state
regulations as separate and the Agency may take final action on each
separately. This notice of proposed rulemaking (NPRM) does not include
Delaware's submitted SIP revision applicable to 7 DE Admin Code 1114
which the EPA will address separately.
I. Background
A. The EPA's 2015 SSM SIP Action, Environmental Committee of the
Florida Electric Power Coordinating Group, Inc. v. EPA, 94 F.4th 77
(D.C. Cir. 2024), and Delaware's SSM SIP Revisions
On June 12, 2015, the EPA finalized the 2015 SSM SIP Action \1\
which clarified, restated, and updated the EPA's national policy
regarding SIP provisions applying to excess emissions that occur during
periods of SSM. The 2015 SSM SIP Action found that certain SIP
provisions in 36 states were substantially inadequate to meet CAA
requirements and issued a SIP call to those states to submit SIP
revisions to address the inadequacies. The EPA established an 18-month
deadline by which the affected states had to submit such SIP revisions
and states were required to submit corrective revisions to their SIPs
in response to the SIP calls by November 22, 2016. Delaware submitted a
revision to its SIP on November 22, 2016.\2\ On October 23, 2023 (88 FR
72688), the EPA took final action disapproving certain portions of
Delaware's November 22, 2016, SIP revision based on the EPA's finding
that
[[Page 23207]]
the SIP revision did not correct the remaining deficiencies in
Delaware's SIP identified in the 2015 SSM SIP Action. The EPA's
disapproval triggered mandatory sanctions and an obligation for the EPA
to issue a Federal Implementation Plan (FIP). See 88 FR 72688, 72690
(October 23, 2023).
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\1\ 80 FR 33840 (June 12, 2015). State Implementation Plans:
Response to Petition for Rulemaking; Restatement and Update of EPA's
SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy;
and SIP Calls To Amend Provisions Applying to Excess Emissions
During Periods of Startup, Shutdown and Malfunction.
\2\ 2016 DE SIP-Revision to Satisfy EPA's State Implementation
Plan (SIP) Call Related to Air Emissions During Equipment Start-up
and Shutdown.
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However, as a result of the March 1, 2024, decision from the United
States Court of Appeals for the District of Columbia Circuit in
Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024),
certain portions of the EPA's 2015 SSM SIP Action were vacated by the
D.C. Circuit and therefore have no legal effect. Thus, certain States
subject to the 2015 SSM SIP Action no longer have a legal obligation to
submit the revisions that the EPA had originally determined were
required to correct a deficiency identified in the SIP call. In other
words, by partially vacating the EPA's 2015 SSM SIP Action, the D.C.
Circuit's decision rendered Delaware's SIP submission in response to
the 2015 SSM SIP Action voluntary rather than mandatory. Therefore, the
EPA issued an error correction to terminate the triggering of mandatory
sanctions and FIP obligation following the October 23, 2023,
disapproval. See 89 FR 104434 (December 23, 2024). The EPA, however,
did not withdraw the disapproval action because the substantive basis
for the disapproval was not erroneous. See 89 FR 87826, 87828 (November
5, 2024).
On February 3, 2025, Delaware submitted to the EPA proposed SIP
revisions amending the four state regulations from the 2016 SIP
revision that the EPA disapproved in October 2023. Three of those state
regulations are the subject of this proposed rulemaking.
B. Delaware's Provisions Related to Excess Emissions
The EPA's 2015 SSM SIP Action determined that the following
Delaware regulations were substantially inadequate to meet CAA
requirements for SIP provisions: 7 DE Admin. Code 1104 Sec. 1.5
(Particulate Emissions from Fuel Burning Equipment); 7 DE Admin. Code
1105 Sec. 1.7 (Particulate Emissions from Industrial Process
Operations); 7 DE Admin. Code 1108 Sec. 1.2, (Sulfur Dioxide Emissions
from Fuel Burning Equipment); 7 DE Admin. Code 1109 Sec. 1.4
(Emissions of Sulfur Compounds From Industrial Operations); 7 DE Admin.
Code 1114 Sec. 1.3 (Visible Emissions); 7 DE Admin. Code 1124 Sec.
1.4 (Control of Volatile Organic Compound Emissions); and 7 DE Admin.
Code 1142 Sec. 2.3.1.6 (Specific Emission Control Requirements).\3\
These regulations included provisions that provided a state official
with the discretion, through the permitting process, to exempt sources
from otherwise applicable SIP emission limitations, or to set
alternative limitations for periods of SSM inconsistent with the SIP
requirements. 78 FR 12460, 12495 (February 22, 2013) and 80 FR 33840,
33960 (June 12, 2015).
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\3\ See 80 FR 33840, 33960 (June 15, 2015).
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Delaware submitted a SIP revision on November 22, 2016, in response
to the 2015 SIP Call. In addition to addressing the 2015 SIP Call
deficiencies identified for 7 DE Admin. Code 1104 Sec. 1.5, 7 DE
Admin. Code 1105 Sec. 1.7, 7 DE Admin. Code 1109 Sec. 1.4, and 7 DE
Admin. Code 1114 Sec. 1.3, Delaware's 2016 submission noted that the
deficiency highlighted in 7 DE Admin. Code 1108 Sec. 1.2 (Sulfur
Dioxide Emissions from Fuel Burning Equipment) was corrected by a
previous SIP revision, which was submitted to the EPA on July 10, 2013.
A final rule in which the EPA acted on this 2013 submission to address
7 DE Admin. Code 1108 Sec. 1.2 published in the Federal Register on
July 11, 2022.\4\
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\4\ 87 FR 41074 (July 11, 2022), Air Plan Approval; Delaware;
Sulfur Content of Fuel Oil.
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Delaware's 2016 SIP revision also requested that the EPA approve a
change to the Delaware SIP by removing 7 DE Admin. Code 1124 Sec. 1.4
(Control of Volatile Organic Compound Emissions) and 7 DE Admin. Code
1142 Sec. 2.3.1.6 (Specific Emission Control Requirements) in their
entirety, thereby removing these provisions, and their deficiencies,
from the Delaware SIP. A final rule by the EPA approving these
revisions which remedied 7 DE Admin. Code 1124 Sec. 1.4 and 7 DE
Admin. Code 1142 Sec. 2.3.1.6 published in the Federal Register on
February 14, 2023.\5\
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\5\ 88 FR 9399 (February 14, 2023); Air Plan Approval; Delaware;
Removal of Excess Emissions Provisions.
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On October, 23, 2023, the EPA published a final action in the
Federal Register related to the remaining four provisions 7 DE Admin.
Code 1104 Sec. 1.5, 7 DE Admin. Code 1105 Sec. 1.7, 7 DE Admin. Code
1109 Sec. 1.4, and 7 DE Admin. Code 1114 Sec. 1.3, identified in the
EPA's 2015 SIP Call that had not yet been addressed by prior EPA
actions.\6\ In that document, the EPA finalized disapproval of the
remainder of Delaware's 2016 SIP revision for multiple reasons.
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\6\ 88 FR 72688 (October 23, 2023); Air Plan Disapproval;
Delaware; Removal of Excess Emissions Provisions.
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With regards to 7 DE Admin. Code 1104 and 7 DE Admin. Code 1105,
Delaware's 2016 submittal requested the EPA revise the Delaware SIP to
replace the shorter averaging periods for particulate emission
limitations with 30-day rolling averages with no change to the
numerical level of the limit. The increases in averaging times were not
supported by a sufficient analysis explaining why these changes met the
requirements of CAA section 110(l). Additionally, Delaware did not
provide an explanation or analysis of how increasing the averaging time
of the affected limits without any adjustment to their levels would, or
would not, affect attainment or maintenance of the national ambient air
quality standards (NAAQS).
With regards to 7 DE Admin. Code 1109, Delaware's 2016 SIP revision
requested the EPA to approve removal of the provision from the SIP in
its entirety, while retaining it in the State regulation, and stated
that other requirements, including the CAA New Source Performance
Standards (NSPS), were adequate to protect the NAAQS. The EPA explained
that this was problematic because the specific NSPS which Delaware
cited allowed for periods of excess emissions during SSM events.
Additionally, the EPA explained that there was insufficient analysis to
explain how these changes would meet the requirements of CAA section
110(l). A more detailed explanation of the reasons for the disapproval
can be found in the June 21, 2023, NPRM.\7\
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\7\ 88 FR 40136 (June 21, 2023) NPRM, Air Plan Disapproval;
Delaware; Removal of Excess Emissions Provisions.
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II. Summary of SIP Revision and EPA Analysis
In this proposed rulemaking, the EPA is evaluating the February 3,
2025, SIP submission from Delaware. Delaware's revisions to 7 DE Admin.
Code 1104 Sec. 1.5, 7 DE Admin. Code 1105 Sec. 1.7, 7 DE Admin. Code
1109 Sec. 1.4, and the EPA's corresponding analysis are explained
below. Delaware is proposing to remove the potential exemption from the
otherwise applicable SIP emission limitations during startup and
shutdown in each of the three provisions. An underline/strike-out
version of each regulation, showing the changes to the regulations, is
included in the docket for this rulemaking.\8\
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\8\ See Delaware's Final Regulations published in the Delaware
Register of Regulations, Vol. 28, Issue 8 on February 1, 2025.
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A. 7 DE Admin. Code 1104--Particulate Emissions From Fuel Burning
Equipment
Specifically, 7 DE Admin. Code 1104 establishes particulate matter
emissions limitation for fuel burning equipment
[[Page 23208]]
with a heat input capacity equal to, or greater than 1 million British
Thermal units (MMBtu) per hour and addresses emissions during startup
and shutdown events. Regulated sources include commercial and
industrial generators, engines, boilers and turbines. Delaware revised
its State regulation to: (1) remove language from the SIP that could
potentially allow exemptions from the emission limitations during
startup and shutdown; (2) remove from 7 DE Admin. Code 1104 the 0.3 lb/
MMBtu, maximum 30-day rolling average emission limitation \9\ that the
EPA had disapproved in 2023 and never included in the Delaware SIP; and
(3) thus make the 0.3 lb/MMBtu, maximum two-hour average emission
limitation apply to affected sources at all times and maintain the
numerical limit and averaging time that is in the SIP.
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\9\ Delaware amended its State regulation at 7 DE Admin. Code
1104 to remove Subsection 2.2 of Section 2.0 ``Emission Limits'',
which the EPA disapproved in October 2023 and never incorporated
into the SIP because of insufficient analysis demonstrating
compliance with CAA section 110(l). This subsection allowed emission
of particulate matter up to 0.3 lb/MMBtu heat input over a maximum
30-day rolling average, from any fuel burning equipment which could
potentially exceed the 0.3 lb/MMBtu, maximum two-hour average
emission limit specified in subsection 2.1.
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Delaware requests in the SIP submission that the EPA approve the
removal of Subsection 1.5 of Section 1.0 ``General Provisions,'' from
Delaware's approved SIP. This subsection allowed a potential exemption
from the emission limitations specified in subsection 2.1 during
startup and shutdown if a source was operating under a permit issued
under section 2.0 of 7 DE Admin. Code 1102 (Permits). The EPA is
proposing to approve Delaware's request to remove from the SIP
Subsection 1.5 of Section 1.0 of 7 DE Admin. Code 1104. If the removal
is finalized, the existing SIP-approved emission limitation of 0.3 lb/
MMBtu, maximum two-hour average limit will then apply at all times.
B. 7 DE Admin. Code 1105--Particulate Emissions From Industrial Process
Operations
The State regulation at 7 DE Admin. Code 1105 ensures that
particulate emissions from industrial process equipment do not exceed
0.2 grains per standard cubic foot (gr/scf). Delaware revised its state
regulation to: (1) remove language from the SIP that could potentially
allow exemptions from emission limitations during startup and shutdown;
(2) remove from 7 DE Admin. Code 1105 the ``0.2 grains per standard
cubic foot, on a 30-day rolling average'' emission limitation that the
EPA had disapproved in 2023 and never included in the Delaware SIP
\10\; and (3) thus make the ``0.2 grains per standard cubic foot''
emission limitation apply at all times, and maintain the limit as it
appears in the SIP.
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\10\ Delaware amended its state regulation at 7 DE Admin. Code
1105 to remove subsection 2.2 of section 2.0 ``General
Restrictions'', which the EPA disapproved in October 2023 and never
incorporated into the SIP because of insufficient analysis
demonstrating compliance with CAA section 110(l). This subsection
allowed emission of particulate matter up to 0.2 grains per standard
cubic foot over a 30-day rolling average which could potentially
exceed the 0.2 gr/scf emission limit specified in subsection 2.1.
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Delaware requests in the SIP submission that the EPA approve the
removal of subsection 1.7 of section 1.0 ``General Provisions'', from
Delaware's SIP. This subsection allowed a potential exemption from the
emission limitations specified in subsection 2.1 during startup and
shutdown if a source was operating under a permit issued under section
2.0 of 7 DE Admin. Code 1102 (Permits). The EPA is proposing to approve
Delaware's request to remove from the SIP subsection 1.7 of section 1.0
of 7 DE Admin. Code 1105. As a result, if finalized, the existing SIP-
approved 0.2 grains per standard cubic foot emission limit will apply
at all times.\11\
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\11\ The EPA is also proposing to include in the SIP a non-
substantive change to section 5.0 of 7 DE Admin. 1105 where one
sentence stating that ``[f]or the purpose of interpolation and
extrapolation calculations, `Coke Burn-Off Rate' shall be construed
to be equivalent to `Process Weight Rate','' was shifted from one
location to another within subsection 5.1 without altering the
meaning.
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C. 7 DE Admin. Code 1109--Emissions of Sulfur Compounds From Industrial
Operations
The State regulation at 7 DE Admin. Code 1109 sets specific sulfur
dioxide (SO<INF>2</INF>) emission limitations for sulfuric acid
manufacturing and sulfur recovery operations. For instance, the
regulation limits SO<INF>2</INF> emissions from sulfuric acid
manufacturing operations to 0.5 pounds per ton (lb/ton) for acid mist
and sets the maximum SO<INF>2</INF> emission rate of 2,000 parts per
million (ppm) for sulfur recovery operations. The State revised the
regulation to remove language that could allow potential exemptions
during startup and shutdown events and to require sources to meet the
emission limitations stated in the regulation at all times.
Delaware requests in the SIP submission that the EPA approve the
removal of Subsection 1.4 of Section 1.0 ``General Provisions'' from
Delaware's SIP. This subsection allowed potential exemptions from the
emission limitations imposed in sections 2.0 and 3.0, if a source was
operating under a permit issued under section 2.0 of 7 DE Admin. Code
1102 (Permits). The EPA is proposing to approve Delaware's request to
remove from the SIP subsection 1.4 of section 1.0 of 7 DE Admin. Code
1109 such that, if finalized, the SO<INF>2</INF> limits at section 2.0
and 3.0 will apply at all times.
III. Proposed Action
The EPA's review of this material indicates that the SIP revision
submitted on February 3, 2025, is approvable. The February 3, 2025,
submission requests that the EPA approve into the Delaware SIP the
revised versions of 7 DE Admin. Code 1104, 7 DE Admin. Code 1105, and 7
DE Admin. Code 1109, thus removing subsection 1.5, subsection 1.7, and
subsection 1.4 respectively, and the startup and shutdown exemptions
contained therein, as described earlier in this document.
The EPA is proposing to approve these three revisions to the
Delaware SIP because they are consistent with applicable statutory
requirements, strengthen Delaware's SIP, and align the approved SIP
with revised state regulations. The EPA is soliciting public comments
on the issues discussed in this document. The EPA is only taking
comment on the proposed SIP revisions to the specific provisions
discussed in this document. The EPA will consider comments before
taking final action.
IV. Incorporation by Reference
In this proposed rulemaking, the EPA is proposing to include in a
final EPA rule regulatory text that includes incorporation by
reference. In accordance with the requirements of 1 CFR 51.5, the EPA
is proposing to incorporate by reference the revisions to 7 DE Admin.
Code 1104, 7 DE Admin. Code 1105, and 7 DE Admin. Code 1109, as
described in section II of this document. The EPA has made, and will
continue to make, these materials generally available through
<a href="http://Regulations.gov">Regulations.gov</a> and at the EPA Region III office (please contact the
person identified in the For Further Information Contact section of
this preamble for more information).
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Clean Air Act
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 Clean Air Act.
Accordingly, this
[[Page 23209]]
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Order 12866 (58
FR 51735, October 4, 1993);
<bullet> Is not subject to Executive Order 14192 (90 FR 9065,
February 6, 2025) because SIP actions are exempt from review under
Executive Order 12866;
<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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<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 Clean Air Act.
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where 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 dioxide.
Amy Van Blarcom-Lackey,
Regional Administrator, Region III.
[FR Doc. 2026-08373 Filed 4-29-26; 8:45 am]
BILLING CODE 6560-50-P
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