[Federal Register Volume 77, Number 148 (Wednesday, August 1, 2012)]
[Proposed Rules]
[Pages 45527-45530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18802]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0381; FRL-9709-7]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Requirements for Prevention of Significant Deterioration and 
Nonattainment New Source Review; Fine Particulate Matter (PM2.5)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of Delaware on March 14, 2012. This SIP 
revision pertaining to Delaware's Prevention of Significant 
Deterioration (PSD) and nonattainment New Source Review (NSR) programs 
incorporates preconstruction permitting requirements for fine 
particulate matter (PM2.5) into the Delaware SIP. In 
addition, EPA is proposing to approve SIP revisions and portions of SIP 
submissions for the purpose of determining that Delaware has met its 
statutory obligations with respect to the infrastructure requirements 
of the Clean Air Act (CAA) which relate to Delaware's PSD permitting 
program and are necessary to implement, maintain, and enforce the1997 
PM2.5 and ozone NAAQS, the 2006 PM2.5 NAAQS, and 
the 2008 lead NAAQS. EPA is approving these revisions in accordance 
with the requirements of the Clean Air Act (CAA).

DATES: Written comments must be received on or before August 31, 2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2012-0381 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2012-0381, Kathleen Cox, Associate Director, 
Office of Permits and Air Toxics, Mailcode 3AP10, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2012-0381. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in www.regulations.gov or 
in hard copy 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: Gerallyn Duke, (215) 814-2084, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean

[[Page 45528]]

EPA. On March 14, 2012, Delaware submitted a formal revision to the 
State Implementation Plan (SIP) (the March 2012 SIP submission). The 
SIP revision consists of amendments to 7 DE Admin. Code 1125, 
``Requirements for Preconstruction Review.'' This SIP revision 
generally pertains to two Federal rulemaking actions regarding 
PM2.5. The first is the ``Implementation of the New Source 
Review (NSR) Program for Particulate Matter less than 2.5 Micrometers 
(PM2.5)'' (NSR PM2.5 Rule), which was promulgated 
on May 16, 2008 (73 FR 28321). The second is the ``Prevention of 
Significant Deterioration (PSD) for Particulate Matter less than 2.5 
Micrometers (PM2.5)--Increments, Significant Impact Levels 
(SILs) and Significant Monitoring Concentration (SMC)'' (PSD 
PM2.5 Rule), which was promulgated on October 20, 2010 (75 
FR 64864).
    Whenever a new or revised NAAQS is promulgated, section 110(a) of 
the CAA imposes obligations upon states to submit SIP revisions that 
provide for the implementation, maintenance, and enforcement of the new 
or revised NAAQS within three years following the promulgation of such 
NAAQS--the ``Infrastructure SIP'' revisions. Although states typically 
have met many of the basic program elements required in section 
110(a)(2) through earlier SIP submissions in connection with previous 
particulate matter (PM) standards, states (including all the EPA Region 
III states) were still required to submit SIP revisions that address 
section 110(a)(2) for the 1997 and 2006 PM2.5 NAAQS. In 
addition to the March 2012 SIP submission, Delaware has previously 
submitted SIP revisions addressing requirements set forth in CAA 
section 110(a)(2) for the 1997 and 2006 PM2.5 NAAQS, as well 
as the 1997 ozone and 2008 lead NAAQS. Because these SIP submissions 
addressed Delaware's compliance with CAA section 110(a)(2), these SIP 
submissions are referred to as Infrastructure SIP submissions. These 
previous submittals, as well as a technical support document (TSD), are 
included in the docket for today's action. The TSD contains a detailed 
discussion of these submittals and their relationship to the 
requirements of CAA section 110(a)(2).

A. Fine Particulate Matter and the NAAQS

    On July 18, 1997, EPA revised the NAAQS for PM to add new standards 
for fine particles, using PM2.5 as the indicator. 
Previously, EPA used PM10 (inhalable particles smaller than 
or equal to 10 micrometers in diameter) as the indicator for the PM 
NAAQS. EPA established health-based (primary) annual and 24-hour 
standards for PM2.5, setting an annual standard at a level 
of 15 micrograms per cubic meter ([mu]g/m\3\) and a 24-hour standard at 
a level of 65 [mu]g/m\3\ (62 FR 38652). At the time the 1997 primary 
standards were established, EPA also established welfare-based 
(secondary) standards identical to the primary standards. The secondary 
standards are designed to protect against major environmental effects 
of PM2.5, such as visibility impairment, soiling, and 
materials damage. On October 17, 2006, EPA revised the primary and 
secondary NAAQS for PM2.5. In that rulemaking, EPA reduced 
the 24-hour NAAQS for PM2.5 to 35 [mu]g/m\3\ and retained 
the existing annual PM2.5 NAAQS of 15 [mu]g/m\3\ (71 FR 
61236).

B. Implementation of NSR Requirements for PM2.5--the NSR PM2.5 Rule

    On May 16, 2008, EPA finalized the NSR PM2.5 Rule to 
implement the 1997 PM2.5 NAAQS, including changes to the NSR 
program (73 FR 28321). The 2008 NSR PM2.5 Rule revised the 
NSR program requirements to establish the framework for implementing 
preconstruction permit review for the PM2.5 NAAQS in both 
attainment and nonattainment areas. The 2008 NSR PM2.5 Rule 
also established the following NSR requirements to implement the 
PM2.5 NAAQS: (1) Require NSR permits to address directly 
emitted PM2.5 and precursor pollutants; (2) establish 
significant emission rates for direct PM2.5 and precursor 
pollutants (including sulfur dioxide (SO2) and oxides of 
nitrogen (NOX); (3) establish PM2.5 emission 
offsets; and (4) require states to account for gases that condense to 
form particles (condensables) in PM2.5 emission limits.
    Additionally, the 2008 final rule authorized states to adopt 
provisions in their nonattainment NSR rules that would allow major 
stationary sources and major modifications which will be located or 
take place in areas designated nonattainment for PM2.5 to 
offset emissions increases of direct PM2.5 emissions or 
PM2.5 precursors with reductions of either direct 
PM2.5 emissions or PM2.5 precursors in accordance 
with offset ratios contained in the approved SIP for the applicable 
nonattainment area. The inclusion, in whole or in part, of the 
interpollutant offset provisions for PM2.5 is discretionary 
on the part of the states. In the preamble to the 2008 final rule, EPA 
included preferred or presumptive offset ratios, applicable to specific 
PM2.5 precursors that states may adopt in conjunction with 
the new interpollutant offset provisions for PM2.5 and for 
which the state could rely on the EPA's technical work to demonstrate 
the adequacy of the ratios for use in any PM2.5 non 
attainment area. Alternatively, the preamble indicated that states may 
adopt their own ratios, subject to the EPA's approval, that would have 
to be substantiated by modeling or other technical demonstrations of 
the net air quality benefit for ambient PM2.5 
concentrations.
    The preferred ratios were subsequently the subject of a petition 
for reconsideration which the Administrator granted. EPA continues to 
support the basic policy that sources may offset increases in emissions 
of direct PM2.5 or of any PM2.5 precursor in a 
PM2.5 nonattainment area with actual emissions reductions in 
direct PM2.5 or PM2.5 precursors in accordance 
with offset ratios as approved in the SIP for the applicable 
nonattainment area. However, we no longer consider the preferred ratios 
set forth in the preamble to the 2008 final rule for PM2.5 
NSR implementation to be presumptively approvable. Instead, any ratio 
involving PM2.5 precursors adopted by the state for use in 
the interpollutant offset program for PM2.5 nonattainment 
areas must be accompanied by a technical demonstration that shows the 
net air quality benefits of such ratio for the PM2.5 
nonattainment area in which it will be applied.

C. PSD PM2.5 Rule

    On October 20, 2010 (75 FR 64865), EPA promulgated the final 
``Prevention of Significant Deterioration (PSD) for Particulate Matter 
less than 2.5 Micrometers (PM2.5)--Increments, Significant 
Impact Levels (SILs) and Significant Monitoring Concentration (SMC)'' 
(PSD PM2.5 Rule). That rulemaking finalized certain program 
provisions under the regulations to prevent significant deterioration 
of air quality due to emissions of PM2.5 (i.e., under the 
PM2.5 PSD regulations). This final rule supplemented the 
final implementation rule for PM2.5, known as the Clean Air 
Fine Particle Implementation Rule (CAFPIR) that we promulgated on April 
25, 2007 (72 FR 20586), and the PM2.5 NSR Implementation 
Rule that we promulgated on May 16, 2008 (73 FR 28321). Together, these 
three rules establish a regulatory framework for implementation of a 
PM2.5 program in any area. This final rule established 
increments, SILs, and an SMC for PM2.5 to facilitate ambient 
air quality monitoring and modeling under the PSD

[[Page 45529]]

regulations for areas designated attainment or unclassifiable for 
PM2.5.

D. Infrastructure Requirements Relating to Delaware's PSD Permit 
Program

    With the addition of the PM2.5 requirements described 
above, Delaware's nonattainment NSR and PSD programs contain all of the 
emission limitations and control measures and other program elements 
required by 40 CFR 51.165 and 40 CFR 51.166 related to the 
PM2.5 NAAQS. Therefore, we also are proposing to approve the 
March 2012 SIP submittal and the relevant portions of Delaware's 
Infrastructure SIP submittals relating to the PSD permit program 
requirements under CAA sections 110(a)(2)(D)(i)(II) for the 1997 ozone 
and PM2.5 NAAQS, the 2006 PM2.5 NAAQS, and the 
2008 lead NAAQS. EPA also is proposing to approve the relevant portion 
of Delaware's submittal relating to the PSD permit program pursuant to 
CAA section 110(a)(2)(C) and (J) for the 2008 lead NAAQS. As already 
noted, the TSD for this action contains a detailed discussion of the 
relevant submissions and EPA's rationale for making this determination.

II. Summary of SIP Revision

    The March 2012 SIP revision submitted by Delaware consists of 
amendments to 7 DE Admin. Code 1125, Requirements for Preconstruction 
Review. The revision fulfills the federal program requirements 
established by the 2008 NSR PM2.5 Rule. The amendments 
establish the major source threshold, significant emission rate and 
offset ratios for PM2.5, establish NOX and 
SO2 as precursors to PM2.5, and establish the 
allowance for interpollutant trading for offsets and NSR applicability 
to PM2.5 precursor pollutants, pursuant to the May 2008 NSR 
PM2.5 Rule. In addition, the amendments add maximum 
allowable ambient pollutant concentrations (increments) and an SMC for 
PM2.5 pursuant to the October 2010 PSD PM2.5 
Rule.
    The amendments add definitions, in Section 1 (General Provisions), 
for the following terms: ``major source baseline date,'' ``condensable 
particulate matter,'' ``direct PM2.5,'' and ``filterable 
PM.'' The amendments revise the definitions of existing terms 
``baseline area,'' ``baseline concentration,'' ``building, structure, 
facility or installation,'' ``minor source baseline date,'' and 
``significant'' to include the requirements for PM2.5 to 
support the amendments to Chapter 1125. Section 2.2.5 is added to 
Chapter 2.0, Emission Offset Provisions, to identify NOX and 
SO2 as precursors. Section 2.4.3.3 is added to allow 
emissions offsets of SO2, NOX or PM2.5 
at a 1-to-1 ratio for the same criteria pollutants. Section 2.5.7 is 
added to Chapter 2.0 to allow interpollutant trading between direct 
PM2.5 emissions and SO2 or NOX 
emissions using a ratio that would be approved by Delaware after public 
review and comment and then approved by EPA as a SIP revision. Section 
3.2 in Chapter 3.0, Prevention of Significant Deterioration of Air 
Quality, is modified to establish increments for PM2.5. 
Section 3.7 (Review of Major Stationary Sources and Major 
Modifications--Source Applicability and Exemptions) is revised at 
Section 3.7.7.1 to establish an SMC for PM2.5. No other 
changes to increments or SMCs for other regulated NSR pollutants are 
being addressed in this SIP approval.
    The amendments submitted in March 2012 by Delaware for approval 
into the SIP were adopted by Delaware on January 17, 2012 and became 
effective on February 11, 2012. Based upon EPA's review of the 
revisions submitted by Delaware for approval into the SIP, EPA finds 
these revisions to be consistent with their Federal counterparts.
    The revisions submitted by the State of Delaware to address the new 
PSD requirements for PM2.5 pursuant to the EPA's October 20, 
2010 final rule include the regulatory text at 40 CFR 51.166(k)(2), 
concerning the implementation of SILs for PM2.5. (See, 7 DE 
Admin. Code 1125 Section 3.9 (Source Impact Analysis)). We stated in 
the preamble to the 2010 final rule that we do not consider the SILs to 
be a mandatory SIP element, but regard them as discretionary on the 
part of permitting authority for use in the PSD permitting process. 
Nevertheless, the PM2.5 SILs are currently the subject of 
litigation before the U.S. Court of Appeals (D.C. Circuit). In response 
to that litigation, the EPA has requested that the Court remand and 
vacate the regulatory text in the EPA's PSD regulations at paragraph 
(k)(2) of section 51.166 so that the EPA can make necessary rulemaking 
revisions to that text.
    In light of EPA's request for remand and vacatur and our 
acknowledgement of the need to revise the regulatory text presently 
contained at paragraph (k)(2) of sections 51.166 and 52.21, we do not 
believe that it is appropriate at this time to approve that portion of 
the State's SIP revision that contains the affected regulatory text in 
the State's PSD regulations, specifically new section 3.9 of 7 DE 
Admin. Code 1125. Instead, we are taking no action at this time with 
regard to that specific provision contained in the SIP revision.

III. Proposed Action

    Based upon EPA's review of the March 14, 2012 submittal, EPA finds 
the revised regulations consistent with their Federal counterparts. 
Only the increment portion of the October 20, 2010 PM2.5 
rule is a required PSD program element. Therefore, EPA is proposing to 
approve the Delaware SIP revision with the exception of the SILs as 
noted earlier, upon which we are taking no action. Additionally, in 
light of this SIP revision, EPA is proposing to approve the portions of 
Delaware's December 13, 2007, March 12, 2008, September 19, 2008, 
September 16, 2009, and April 1, 2010 infrastructure SIP submittals 
which address the obligations set forth at CAA section 
110(a)(2)(D)(i)(II) relating to Delaware's PSD permit program for the 
1997 PM2.5 and ozone NAAQS as well as for the 2006 
PM2.5 NAAQS. Finally, in light of Delaware's submission 
dated October 17, 2011 and the March 2012 SIP revision which address 
the obligations set forth at CAA sections 110(a)(2)(C), (D)(i)(II) and 
(J) relating to the Delaware's PSD permit program, EPA is proposing to 
determine that Delaware's SIP meets the statutory obligations relating 
to its PSD permit program set forth at CAA sections 110(a)(2)(C), 
(D)(i)(II), and (J) for the 2008 lead NAAQS. EPA is soliciting public 
comments on the issues discussed in this document. These comments will 
be considered before taking final action.

IV. 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:
     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

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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 proposed rule pertaining to NSR requirements for 
PM2.5 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides.

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

    Dated: July 20, 2012.
James W. Newsom,
Acting Regional Administrator, Region III.
[FR Doc. 2012-18802 Filed 7-31-12; 8:45 am]
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