[Federal Register Volume 76, Number 150 (Thursday, August 4, 2011)]
[Rules and Regulations]
[Pages 47068-47074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19694]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0158; FRL-9447-7]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Section 110(a)(2) Infrastructure Requirements for the 1997 8-
Hour Ozone and the 1997 and 2006 Fine Particulate Matter National 
Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving submittals from the State of Delaware 
pursuant to the Clean Air Act (CAA) sections 110(k)(2) and (3). These 
submittals address the infrastructure elements specified in the CAA 
section 110(a)(2), necessary to implement, maintain, and enforce the 
1997 8-hour ozone and fine particulate matter (PM2.5) 
national ambient air quality standards (NAAQS) and the 2006 
PM2.5 NAAQS. This final rule is limited to the following 
infrastructure elements which were subject to EPA's completeness 
findings pursuant to CAA section (k)(1) for the 1997 8-hour ozone NAAQS 
dated March 27, 2008 and the 1997 PM2.5 NAAQS dated October 
22, 2008: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), 
(K), (L), and (M), or portions thereof.

DATES: Effective Date: This final rule is effective on September 6, 
2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2010-0158. All documents in the docket are listed in 
the http://regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through http://regulations.gov or in 
hard copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submittal are available at the Delaware Department of Natural Resources 
and Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, 
Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Ellen Wentworth, (215) 814-2034, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, whenever

[[Page 47069]]

``we,'' ``us,'' or ``our'' is used, we mean EPA.

I. Background

    On June 3, 2010 (75 FR 31340), EPA published a notice of proposed 
rulemaking (NPR) for the State of Delaware. The NPR proposed approval 
of Delaware's submittals that provide the basic program elements 
specified in the CAA sections 110(a)(2)(A), (B), (C), (D)(ii), (E), 
(F), (G), (H), (J), (K), (L), and (M), or portions thereof, necessary 
to implement, maintain, and enforce the 1997 8-hour ozone and 
PM2.5 NAAQS and the 2006 PM2.5 NAAQS. The formal 
submittals submitted by the State of Delaware on December 13, 2007, 
September 19, 2008, and September 16, 2009 addressed the section 
110(a)(2) requirements for the 1997 8-hour ozone NAAQS; the submittals 
dated December 13, 2007, March 12, 2008, September 16, 2009, and March 
10, 2010 addressed the section 110(a)(2) requirements for the 1997 
PM2.5 NAAQS; and the submittals dated September 16, 2009 and 
March 10, 2010 addressed the section 110(a)(2) requirements for the 
2006 PM2.5 NAAQS.

II. Scope of Action on Infrastructure Submissions

    EPA is currently acting upon State Implementation Plans (SIPs) that 
address the infrastructure requirements of CAA section 110(a)(1) and 
(2) for the ozone and PM2.5 NAAQS for various states across 
the country. Commenters on EPA's recent proposals for some states 
raised concerns about EPA statements that it was not addressing certain 
substantive issues in the context of acting on those infrastructure SIP 
submissions.\1\ Those commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements in other 
proposals that it would address two issues separately and not as part 
of actions on the infrastructure SIP submissions: (i) Existing 
provisions related to excess emissions during periods of start-up, 
shutdown, or malfunction (SSM) at sources, that may be contrary to the 
CAA and EPA's policies addressing such excess emissions; and (ii) 
existing provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA. EPA notes that there 
are two other substantive issues for which EPA likewise stated in other 
proposals that it would address the issues separately: (i) Existing 
provisions for minor source new source review programs that may be 
inconsistent with the requirements of the CAA and EPA's regulations 
that pertain to such programs (``minor source NSR'') and (ii) existing 
provisions for Prevention of Significant Deterioration programs that 
may be inconsistent with current requirements of EPA's ``Final NSR 
Improvement Rule,'' (67 FR 80186, December 31, 2002), as amended by the 
NSR Reform Rule (72 FR 32526, June 13, 2007) (NSR Reform). In light of 
the comments, EPA now believes that its statements in various proposed 
actions on infrastructure SIPs with respect to these four individual 
issues should be explained in greater depth.
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    \1\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply. EPA did receive specific 
adverse comments in this action that are discussed in more detail in 
section IV.
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    EPA intended the statements in the other proposals concerning these 
four issues merely to be informational and to provide general notice of 
the potential existence of provisions within the existing SIPs of some 
states that might require future corrective action. EPA did not want 
states, regulated entities, or members of the public to be under the 
misconception that EPA's approval of the infrastructure SIP submission 
of a given state should be interpreted as a reapproval of certain types 
of provisions that might exist buried in the larger existing SIP for 
such state. Thus, for example, EPA explicitly noted that we believe 
that some states may have existing SIP approved SSM provisions that are 
contrary to the CAA and EPA policy, but that ``in this rulemaking, EPA 
is not proposing to approve or disapprove any existing State provisions 
with regard to excess emissions during SSM of operations at 
facilities.'' EPA further explained, for informational purposes, that 
``EPA plans to address such State regulations in the future.'' EPA made 
similar statements, for similar reasons, with respect to the director's 
discretion, minor source NSR, and NSR Reform issues. EPA's objective 
was to make clear that approval of an infrastructure SIP for these 
ozone and PM2.5 NAAQS should not be construed as explicit or 
implicit reapproval of any existing provisions that relate to these 
four substantive issues.
    Unfortunately, the commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the other three substantive issues to be integral parts 
of acting on an infrastructure SIP submission, and therefore that EPA 
was merely postponing taking final action on the issue in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the potential for 
certain types of deficiencies in existing SIPs and to prevent any 
misunderstanding that it was reapproving any such existing provisions. 
EPA's intention was to convey its position that the statute does not 
require that infrastructure SIPs address these specific substantive 
issues in existing SIPs and that these issues may be dealt with 
separately, outside the context of acting on the infrastructure SIP 
submission of a state. To be clear, EPA did not mean to imply that it 
was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements in those proposals, however, we want to explain more 
fully EPA's reasons for concluding that these four potential 
substantive issues in existing SIPs may be addressed separately.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof)'' and 
that these SIPs are to provide for the ``implementation, maintenance, 
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 
specific elements that ``[e]ach such plan'' submission must meet. EPA 
has historically referred to these particular submissions that states 
must make after the promulgation of a new or revised NAAQS as 
``infrastructure SIPs.'' This specific term does not appear in the 
statute, but EPA uses the term to distinguish this particular type of 
SIP submission designed to address basic structural requirements of a 
SIP from other types of SIP submissions designed to address other 
different requirements, such as ``nonattainment SIP'' submissions 
required to address the nonattainment planning requirements of part D, 
``regional haze SIP'' submissions required to address the visibility 
protection requirements of CAA section 169A, new source review 
permitting program submissions required to

[[Page 47070]]

address the requirements of part D, and a host of other specific types 
of SIP submissions that address other specific matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, the list of required 
elements provided in section 110(a)(2) contains a wide variety of 
disparate provisions, some of which pertain to required legal 
authority, some of which pertain to required substantive provisions, 
and some of which pertain to requirements for both authority and 
substantive provisions.\2\ Some of the elements of section 110(a)(2) 
are relatively straightforward, but others clearly require 
interpretation by EPA through rulemaking, or recommendations through 
guidance, in order to give specific meaning for a particular NAAQS.\3\
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    \2\ For example, section 110(a)(2)(E) provides that states must 
provide assurances that they have adequate legal authority under 
state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \3\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each state's SIP contains adequate provisions to prevent 
significant contribution to nonattainment of the NAAQS in other 
states. This provision contains numerous terms that require 
substantial rulemaking by EPA in order to determine such basic 
points as what constitutes significant contribution. See, e.g., 
``Rule To Reduce Interstate Transport of Fine Particulate Matter and 
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; 
Revisions to the NOx SIP Call; Final Rule,'' (70 FR 
25162, May 12, 2005) (defining, among other things, the phrase 
``contribute significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) states that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\4\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because EPA bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\5\ This illustrates that EPA may conclude that 
subdividing the applicable requirements of section 110(a)(2) into 
separate SIP actions may sometimes be appropriate for a given NAAQS 
where a specific substantive action is necessitated, beyond a mere 
submission addressing basic structural aspects of the state's SIP. 
Finally, EPA notes that not every element of section 110(a)(2) would be 
relevant, or as relevant, or relevant in the same way, for each new or 
revised NAAQS and the attendant infrastructure SIP submission for that 
NAAQS. For example, the monitoring requirements that might be necessary 
for purposes of section 110(a)(2)(B) for one NAAQS could be very 
different than what might be necessary for a different pollutant. Thus, 
the content of an infrastructure SIP submission to meet this element 
from a state might be very different for an entirely new NAAQS, versus 
a minor revision to an existing NAAQS.\6\
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    \4\ See, e.g., Id., (70 FR 25162, at 63-65, May 12, 2005) 
(explaining relationship between timing requirement of section 
110(a)(2)(D) versus section 110(a)(2)(I)).
    \5\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See, ``Guidance for State 
Implementation Plan (SIP) Submissions to Meet Current Outstanding 
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards,'' from 
William T. Harnett, Director Air Quality Policy Division OAQPS, to 
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \6\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of SIP submission may implicate some subsections of section 110(a)(2) 
and not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\7\ Within this guidance document, 
EPA described the duty of states to make these submissions to meet what 
EPA characterized as the ``infrastructure'' elements for SIPs, which it 
further described as the ``basic SIP requirements, including emissions 
inventories, monitoring, and modeling to assure attainment and 
maintenance of the standards.'' \8\ As further identification of these 
basic structural SIP requirements, ``attachment A'' to the guidance 
document included a short description of the various elements of 
section 110(a)(2) and additional information about the types of issues 
that EPA considered germane in the context of such infrastructure SIPs. 
EPA emphasized that the description of the basic requirements listed on 
attachment A was not intended ``to constitute an interpretation of'' 
the requirements and was merely a ``brief description of the required 
elements.'' \9\ EPA also stated its belief that with one exception, 
these requirements were ``relatively self explanatory, and past 
experience with SIPs for other NAAQS should enable states to meet these 
requirements with

[[Page 47071]]

assistance from EPA Regions.'' \10\ For the one exception to that 
general assumption, however, i.e., how states should proceed with 
respect to the requirements of section 110(a)(2)(G) for the 1997 
PM2.5 NAAQS, EPA gave much more specific recommendations. 
But for other infrastructure SIP submittals, and for certain elements 
of the submittals for the 1997 PM2.5 NAAQS, EPA assumed that 
each state would work with its corresponding EPA regional office to 
refine the scope of a state's submittal based on an assessment of how 
the requirements of section 110(a)(2) should reasonably apply to the 
basic structure of the state's SIP for the NAAQS in question.
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    \7\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division, to Air Division Directors, 
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \8\ Id., at page 2.
    \9\ Id., at attachment A, page 1.
    \10\ Id., at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.
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    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM2.5 NAAQS.\11\ In the 2009 Guidance, EPA addressed a 
number of additional issues that were not germane to the infrastructure 
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but 
were germane to these SIP submissions for the 2006 PM2.5 
NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had 
bifurcated from the other infrastructure elements for those specific 
1997 ozone and PM2.5 NAAQS.
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    \11\ See, ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T, Harnett, Director Air Quality Policy Division, to 
Regional Air Division Directors, Regions I-X, dated September 25, 
2009 (the ``2009 Guidance'').
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    Significantly, neither the 2007 Guidance nor the 2009 Guidance 
explicitly referred to the SSM, director's discretion, minor source 
NSR, or NSR Reform issues as among specific substantive issues EPA 
expected states to address in the context of the infrastructure SIPs, 
nor did EPA give any more specific recommendations with respect to how 
states might address such issues even if they elected to do so. The SSM 
and director's discretion issues implicate section 110(a)(2)(A), and 
the minor source NSR and NSR Reform issues implicate section 
110(a)(2)(C). In the 2007 Guidance, however, EPA did not indicate to 
states that it intended to interpret these provisions as requiring a 
substantive submission to address these specific issues in the context 
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 
Guidance merely indicated its belief that the states should make 
submissions in which they established that they have the basic SIP 
structure necessary to implement, maintain, and enforce the NAAQS. EPA 
believes that states can establish that they have the basic SIP 
structure, notwithstanding that there may be potential deficiencies 
within the existing SIP. Thus, EPA's other proposals mentioned these 
issues not because EPA considers them issues that must be addressed in 
the context of an infrastructure SIP as required by section 110(a)(1) 
and (2), but rather because EPA wanted to be clear that it considers 
these potential existing SIP problems as separate from the pending 
infrastructure SIP actions.
    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable, because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern, 
review of each and every provision of an existing SIP merely for 
purposes of assuring that the state in question has the basic 
structural elements for a functioning SIP for a new or revised NAAQS. 
Because SIPs have grown by accretion over the decades as statutory and 
regulatory requirements under the CAA have evolved, they may include 
some outmoded provisions and historical artifacts that, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of 
the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriate 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever EPA determines that a state's SIP is substantially 
inadequate to attain or maintain the NAAQS, to mitigate interstate 
transport, or otherwise to comply with the CAA.\12\ Section 110(k)(6) 
authorizes EPA to correct errors in past actions, such as past 
approvals of SIP submissions.\13\ Significantly, EPA's determination 
that an action on the infrastructure SIP is not the appropriate time 
and place to address all potential existing SIP problems does not 
preclude EPA's subsequent reliance on provisions in section 110(a)(2) 
as part of the basis for action at a later time. For example, although 
it may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on the infrastructure SIP, EPA believes that section 110(a)(2)(A) may 
be among the statutory bases that EPA cites in the course of addressing 
the issue in a subsequent action.\14\
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    \12\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' (74 FR 21639, April 18, 2011).
    \13\ EPA has recently utilized this authority to correct errors 
in past actions on SIP submissions related to PSD programs. See, 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas Emitting-Sources in State 
Implementation Plans; Final Rule,'' (75 FR 82536, Dec. 30, 2010). 
EPA has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that EPA determined it had approved in 
error. See, e.g., (61 FR 38664, July 25, 1996) and (62 FR 34641, 
June 27, 1997) (corrections to American Samoa, Arizona, California, 
Hawaii, and Nevada SIPs); (69 FR 67062, November 16, 2004) 
(corrections to California SIP); and (74 FR 57051, November 3, 2009) 
(corrections to Arizona and Nevada SIPs).
    \14\ EPA has recently disapproved a SIP submission from Colorado 
on the grounds that it would have included a director's discretion 
provision inconsistent with CAA requirements, including section 
110(a)(2)(A). See, e.g., (75 FR 42342-42344, July 21, 2010)(proposed 
disapproval of director's discretion provisions); (76 FR 4540, Jan. 
26, 2011) (final disapproval of such provisions).
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    EPA's proposed approval of the infrastructure SIP submissions from 
Delaware predated the actions on the submissions of other states and 
thus occurred before EPA decided to provide the informational 
statements concerning the SSM, director's discretion, minor source NSR, 
and NSR Reform issues as specific substantive issues that EPA was not 
addressing in this context. However, EPA determined that these four 
issues should be addressed, as appropriate, separately from the action 
on the infrastructure SIPs for this state for the same reasons. Given 
this determination, EPA did not address these substantive issues in the 
prior proposals. Accordingly, EPA emphasizes that

[[Page 47072]]

today's action should not be construed as a reapproval of any potential 
problematic provisions related to these substantive issues that may be 
buried within the existing SIP of this state. To the extent that there 
is any such existing problematic provision that EPA determines should 
be addressed, EPA plans to address such provisions in the future. In 
the meantime, EPA encourages any state that may have a deficient 
provision related to these issues to take steps to correct it as soon 
as possible.

III. Summary of Relevant Submissions

    The submittals referenced in the Background section above address 
the infrastructure elements specified in the CAA section 110(a)(2). 
These submittals refer to the implementation, maintenance and 
enforcement of the 1997 8-hour ozone, the 1997 PM2.5 NAAQS, 
and the 2006 PM2.5 NAAQS. The rationale supporting EPA's 
proposed action is explained in the NPR and the technical support 
document (TSD) and will not be restated here. On July 6, 2010, EPA 
received adverse comments on the June 3, 2010 NPR. A summary of the 
comments submitted and EPA's responses are provided in Section IV of 
this document. EPA is also revising the portion of the TSD relating to 
section 110(a)(2)(D)(ii) in order to provide a more accurate and 
detailed explanation of the rationale supporting EPA's approval. The 
TSD is available on line at http://regulations.gov, Docket number EPA-
R03-OAR-2010-0158.

IV. Summary of Public Comments and EPA Responses

    Comment: The commenter objected to EPA's proposed approval of the 
infrastructure SIP submission on the grounds that the existing Delaware 
SIP contain provisions addressing excess emissions during periods of 
SSM, that do not meet the requirements of the CAA. The commenter argued 
that even though the SIP revisions that EPA proposed to approve in this 
action did not contain the provisions to which the commenter objects, 
the presence of existing SSM provisions in Delaware's SIP that are 
contrary to the CAA compromise the State's ability to ensure compliance 
with the PM2.5 and ozone NAAQS. The commenter provided 
details on specific regulatory provisions that the commenter 
characterized as inconsistent with Federal law. According to the 
commenter, these provisions ``potentially create blanket exemptions'' 
for emissions during SSM events and these exemptions enable sources to 
emit excessive amounts of pollutants that could ``compromise the 
state's ability to achieve and maintain the PM2.5 and ozone 
NAAQS.''
    Response: EPA disagrees with the commenter's view that if a state's 
existing SIP contains any arguably illegal existing SSM provision, then 
EPA cannot approve the infrastructure SIP submission of that state. As 
discussed in more detail in section II of this final rulemaking, EPA 
does not agree that an action upon the infrastructure SIP required by 
section 110(a)(1) and (2) requires that EPA address any existing SSM 
provisions.
    EPA shares the commenter's concerns that certain existing SSM 
provisions may be contrary to the CAA and existing EPA guidance, and 
that such provisions can have an adverse impact on air quality control 
efforts in a given state. EPA plans to address such provisions in the 
future, as appropriate, and in the meantime encourages any state having 
a deficient SSM provision to take steps to correct it as soon as 
possible. EPA is not evaluating the merits of the commenter's claims 
with respect to the particular provisions identified in the comments in 
this action because EPA considers these to be beyond the scope of this 
action.
    Comment: The commenter also objected to EPA's proposed approval of 
the infrastructure SIP submission because of existing provisions of the 
Delaware SIP that pertain to NOX emission from certain 
stationary sources. According to the commenter, these provisions enable 
the state to allow sources to avoid otherwise applicable NOX 
emissions limits during SSM events. Moreover, the commenter objected to 
the provisions on the grounds that they allegedly allow the state to 
make such revisions to the NOX limits ``outside the SIP-
revision process,'' thereby precluding EPA from ensuring that such 
revisions would meet EPA's applicable guidance on provisions related to 
SSM. Thus, according to the commenter, the existing provisions combine 
an impermissible director's discretion provision with an impermissible 
SSM provision, and these director's discretion and variance provisions 
are contrary to the CAA.
    Response: EPA also disagrees with the commenter's conclusion that 
if a state's existing SIP contains any arguably illegal director's 
discretion or director's variance provision in combination with an 
arguably illegal SSM provision, then EPA cannot approve the 
infrastructure SIP submission of that state. As discussed in more 
detail in section II of this final rulemaking, EPA does not agree that 
an action upon the infrastructure SIP required by section 110(a)(1) and 
(2) requires that EPA address any existing director's discretion 
provisions, or such provisions in combination with existing SSM 
provisions.
    EPA shares the commenter's concerns that certain existing 
director's discretion provisions in combination with existing SSM 
provisions may be contrary to the CAA and existing EPA guidance and 
that such provisions can have an adverse impact on air quality control 
efforts in a given state. EPA plans to take action in the future to 
address such provisions, as appropriate, and in the meantime encourages 
any state having a deficient director's discretion or director's 
variance provision to take steps to correct it as soon as possible. EPA 
is not evaluating the merits of the commenter's claims with respect to 
the particular provisions identified in the comments in this action 
because EPA considers these to be beyond the scope of this action.
    Comment: The commenter asserted that Delaware's New Source 
Performance Standards (NSPS) regulations are not SIP approved but 
nevertheless contain ``loopholes'' for emissions during periods of 
startup, shutdown, and/or malfunction that are less stringent than, or 
inconsistent with, federal law. The commenter provided details on 
specific regulatory provisions that the commenter characterized as 
inconsistent with federal law. The commenter acknowledged that these 
specific provisions are not SIP approved, but argued that the 
provisions affect the ability to enforce emissions limits in state 
court or administrative proceedings and therefore potentially undermine 
the CAA and EPA's ability to ensure implementation of the CAA.
    Response: EPA disagrees with these comments. First, as the 
commenter agrees, provisions of state law that are not SIP approved are 
by definition not something that is relevant to EPA's action on the 
specific infrastructure SIP under consideration in this action. EPA's 
review of the infrastructure SIP is to evaluate the basic structural 
components of the SIP to assure that it meets basic requirements for 
implementation, maintenance, and enforcement of the NAAQS. Provisions 
of state law that are not within the SIP are outside the scope of this 
action, even if they related to an issue that was otherwise germane to 
this action.
    Second, as explained in response to commenters other concerns with 
provisions that are within the SIP, EPA does not agree that an action 
upon an infrastructure SIP submission required by section 110(a)(1) and 
(2) requires that EPA address any existing SSM

[[Page 47073]]

provisions. The bases for EPA's view that such provisions should be 
addressed separately is explained in more detail in section II of this 
final rulemaking,

V. Final Action

    EPA is approving the State of Delaware's submittals that provide 
the basic program elements specified in the CAA sections 110(a)(2)(A), 
(B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M), or 
portions thereof, necessary to implement, maintain, and enforce the 
1997 8-hour ozone and PM2.5 NAAQS and the 2006 
PM2.5 NAAQS. EPA made completeness findings for the 1997 8-
hour ozone NAAQS on March 27, 2008 (73 FR 16205) and on October 22, 
2008 (73 FR 62902) for the 1997 PM2.5 NAAQS. These findings 
pertained only to whether the submissions were complete, pursuant to 
110(k)(1)(A), and did not constitute EPA approval or disapproval of 
such submissions. The March 27, 2008 finding noted that Delaware failed 
to submit a complete SIP addressing the portions of (C) and (J) 
relating to the Part C permit program for the 1997 8-hour ozone NAAQS. 
Specifically, EPA found that Delaware failed to address sections 
110(a)(2)(C) and (J) pertaining to changes to its Part C PSD permit 
program required by the November 29, 2005 (70 FR 71612, page 71699) 
final rule that made nitrogen oxides (NOX) a precursor for 
ozone in the Part C regulations found at 40 CFR 51.166 and in 40 CFR 
52.21. EPA has taken separate action on the portions of section 
110(a)(2)(C) and (J) for the 1997 8-hour ozone NAAQS as they relate to 
Delaware's PSD permit program (76 FR 26679).
    Two elements identified in section 110(a)(2) are not governed by 
the three year submission deadline of section 110(a)(1) because SIPs 
incorporating necessary local nonattainment area controls are not due 
within three years after promulgation of a new or revised NAAQS, but 
rather are due at the time the nonattainment area plan requirements are 
due pursuant to section 172. These elements are: (i) Submissions 
required by section 110(a)(2)(C) to the extent that subsection pertains 
to a permit program in Part D Title I of the CAA; and (ii) any 
submissions required by section 110(a)(2)(I), which pertain to the 
nonattainment planning requirements of Part D Title I of the CAA. This 
action does not cover these specific elements. This action also does 
not address the requirements of 110(a)(2)(D)(i) for the 1997 8-hour 
ozone and PM2.5 NAAQS or for the 2006 PM2.5 
NAAQS. A portion of these requirements have been addressed by separate 
findings issued by EPA (See (70 FR 21147, April 25, 2005); (75 FR 
32673, June 9, 2010), and (76 FR 2853, January 18, 2011)). A portion of 
these requirements are addressed through 110(a)(2) SIP submittals, 
which EPA will be addressing through separate action.

VI. Statutory and Executive Order Reviews

A. General Requirements

    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 approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     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);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     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.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     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
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 3, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action pertaining to Delaware's section 110(a)(2) 
infrastructure requirements for the 1997 8-hour ozone and 
PM2.5 NAAQS, and the 2006 PM2.5 NAAQS, may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: July 22, 2011.
W.C. Early,
Acting, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

[[Page 47074]]

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

     Authority:  42 U.S.C. 7401 et seq.

Subpart I--Delaware

0
2. In Sec.  52.420, the table in paragraph (e) is amended by adding 
entries at the end of the table for Delaware's section 110(a)(2) 
Infrastructure Requirements for the 1997 8-Hour Ozone NAAQS, Section 
110(a)(2) Infrastructure Requirements for the 1997 PM2.5 
NAAQS, and Section 110(a)(2) Infrastructure Requirements for the 2006 
PM2.5 NAAQS. The amendments read as follows:


Sec.  52.420  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                       Applicable
   Name of non-regulatory SIP        geographic or      State submittal   EPA approval date       Additional
            revision               nonattainment area        date                                 explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure  Statewide..........          12/13/07  8/4/11 [Insert       This action
 Requirements for the 1997 8-                                   9/19/08   Federal Register     address the
 Hour Ozone NAAQS.                                              9/16/09   page number where    following CAA
                                                                          the document         elements:
                                                                          begins]              110(a)(2)(A),
                                                                                               (B), (C),
                                                                                               (D)(ii), (E),
                                                                                               (F), (G), (H),
                                                                                               (J), (K), (L),
                                                                                               and (M) or
                                                                                               portions thereof.
Section 110(a)(2) Infrastructure  Statewide..........          12/13/07  8/4/11 [Insert       This action
 Requirements for the 1997 PM2.5                                3/12/08   Federal Register     addresses the
 NAAQS.                                                         9/16/09   page number where    following CAA
                                                                3/10/10   the document         elements:
                                                                          begins]              110(a)(2)(A),
                                                                                               (B), (C), (D)(ii)
                                                                                               (E), (F), (G),
                                                                                               (H), (J), (K),
                                                                                               (L), and (M) or
                                                                                               portions thereof.
Infrastructure Requirements for   Statewide..........           9/16/09  8/4/11 [Insert       This action
 the 2006 PM2.5 NAAQS.                                          3/10/10   Federal Register     addresses the
                                                                          page number where    following CAA
                                                                          the document         elements:
                                                                          begins]              110(a)(2)(A),
                                                                                               (B), (C),
                                                                                               (D)(ii), (E),
                                                                                               (F), (G), (H),
                                                                                               (J), (K), (L),
                                                                                               and (M), or
                                                                                               portions thereof.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2011-19694 Filed 8-3-11; 8:45 am]
BILLING CODE 6560-50-P