[Federal Register Volume 79, Number 64 (Thursday, April 3, 2014)]
[Rules and Regulations]
[Pages 18644-18654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-07459]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0408; FRL-9909-11-Region-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Infrastructure Requirements for the 2008 Ozone National 
Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the State of Delaware 
pursuant to the Clean Air Act (CAA). Whenever new or revised national 
ambient air quality standards (NAAQS) are promulgated, the CAA requires 
states to submit a plan for the implementation, maintenance, and 
enforcement of such NAAQS. The plan is required to address basic 
program elements, including, but not limited to regulatory structure, 
monitoring, modeling, legal authority, and adequate resources necessary 
to assure attainment and maintenance of the standards. These elements 
are referred to as infrastructure requirements. The State of Delaware 
has made a submittal addressing the infrastructure requirements for the 
2008 ozone NAAQS.

DATES: This final rule is effective on May 5, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2013-0408. All documents in the docket are listed in 
the www.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 www.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 (DNREC), 89 Kings Highway, P.O. Box 1401, 
Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On August 30, 2013 (78 FR 53709), EPA published a notice of 
proposed rulemaking (NPR) for the State of Delaware. In the NPR, EPA 
proposed approval of Delaware's submittal that provides the basic 
elements specified in section 110(a)(2) of the CAA, necessary to 
implement, maintain, and enforce the 2008 ozone NAAQS.

[[Page 18645]]

II. Summary of SIP Revision

    On March 27, 2013, the Delaware Department of Natural Resources and 
Environmental Control (DNREC) submitted a SIP revision that addresses 
the infrastructure elements specified in section 110(a)(2) of the CAA, 
necessary to implement, maintain and enforce the 2008 ozone NAAQS. This 
submittal addressed the following infrastructure elements of section 
110(a)(2): (A), (B), (C), (D), (E), (F), (G), (H), (I), (J), (K), (L), 
and (M). EPA has analyzed the above identified submission and is 
approving the submittal as addressing the requirements of section 
110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), 
(K), (L), and (M) of the CAA. As discussed in the NPR, EPA will take 
separate action on the portions of the submittal which address section 
110(a)(2)(I) for the Part D, Title I nonattainment planning 
requirements and section 110(a)(2)(D)(i)(I) which addresses significant 
contribution to nonattainment or interference with maintenance of the 
NAAQS in another state.
    The rationale for EPA's rulemaking action, including the scope of 
infrastructure SIPs in general, is explained in the NPR and the 
technical support document (TSD) accompanying the NPR and will not be 
restated here. The TSD for this rulemaking is available at 
www.regulations.gov, Docket number EPA-R03-OAR-2013-0408.

III. Public Comments and EPA Responses

    EPA received three sets of comments on the August 30, 2013 proposed 
approval of Delaware's 2008 ozone infrastructure SIP. The commenters 
included the State of Connecticut, the Delaware Solid Waste Authority 
(DSWA), and the Sierra Club. A full set of these comments is provided 
in the docket for today's final rulemaking action.

A. State of Connecticut

    Comment: The State of Connecticut asserts that its ability to 
attain the 2008 ozone NAAQS is compromised by interstate transport of 
pollution from upwind states. Connecticut claims it would require 
additional reductions from upwind emissions to address transported 
emissions into Connecticut and to be able to attain the 2008 ozone 
NAAQS based on modeling from the Ozone Transport Commission and 
modeling done by EPA for the Cross State Air Pollution Rule (CSAPR). 
Connecticut comments that remaining measures to reduce in-state 
emissions were limited and not cost effective. Connecticut asserts that 
it and other states like Delaware had done their fair share to reduce 
in-state emissions while upwind states failed to fulfill minimal 
obligations under the CAA. Connecticut states that section 110(a)(1) of 
the CAA requires states like Delaware to submit, within three years of 
promulgation of a new NAAQS, a plan which provides for implementation, 
maintenance, and enforcement of such NAAQS within the state. 
Connecticut states that Delaware had submitted a plan to address its 
good neighbor obligations under section 110(a)(2)(D)(i)(I) of the CAA 
for Delaware's March 27, 2013 infrastructure SIP for the 2008 ozone 
NAAQS. Connecticut states that it had previously commented on 
Delaware's draft infrastructure SIP for the 2008 ozone NAAQS by stating 
Connecticut believed Delaware's already adopted control measures are 
sufficient to alleviate Delaware's contribution to Connecticut's ozone 
problems by December 15, 2015, which is Connecticut's attainment 
deadline for the 2008 ozone NAAQS.
    Connecticut argues that EPA lacks the discretion to defer action on 
Delaware's good neighbor portion of Delaware's infrastructure SIP for 
2008 ozone NAAQS (for section 110(a)(2)(D)(i)(I) of the CAA). 
Connecticut further argues that the CAA does not give EPA discretion to 
approve a SIP without the good neighbor provision on the grounds that 
EPA would take separate action on Delaware's obligations under section 
110(a)(2)(D)(i)(I). Connecticut asserts that EPA should either approve 
Delaware's infrastructure SIP with respect to its impact on 
Connecticut's ambient ozone levels or address Delaware's failure to 
satisfy its good neighbor obligations by promulgating a Federal 
Implementation Plan (FIP) under section 110(c)(1) of the CAA within two 
years to address section 110(a)(2)(D)(i)(I) of the CAA.
    Response: EPA acknowledges the commenter's concerns with regard to 
the interstate transport of ozone and ozone precursors. EPA also agrees 
in general with the commenter that each state should address its 
contribution to another state's nonattainment and that section 
110(a)(1) of the CAA requires states like Delaware to submit within 
three years of promulgation of a new or revised NAAQS a plan which 
provides for implementation, maintenance and enforcement of such NAAQS 
within the state. Many of the commenter's concerns, however, go to 
issues beyond the scope of this rulemaking action and the commenter 
does not allege that deferring action on Delaware's SIP will have any 
negative impact on Connecticut. To the contrary, the commenter asserts 
that ``it is very likely that the adopted control programs noted in the 
DNREC proposed SIP are sufficient to alleviate Delaware's contributions 
to Connecticut's ozone problems'' by Connecticut's attainment deadline 
for the 2008 eight-hour ozone NAAQS.
    In this rulemaking action, EPA is not taking any final action with 
respect to the provisions in section 110(a)(2)(D)(i)(I)--the portion of 
the good neighbor provision that addresses emissions that significantly 
contribute to nonattainment or interfere with maintenance of the NAAQS 
in another state. EPA did not propose to take any action with respect 
to Delaware's obligations pursuant to section 110(a)(2)(D)(i)(I) and is 
not, in this notice, taking any such action. As explained in this 
rulemaking action, while section 110(k) of the CAA requires EPA to act 
on all SIP submissions whether required or not, nothing in section 
110(k) requires EPA to act on all parts of a SIP submission in a single 
action or requires EPA to act on Delaware's section 110(a)(2)(D)(i)(I) 
submission at this time. Moreover, even if EPA were to disapprove the 
110(a)(2)(D)(i)(I) portion of the SIP submitted by Delaware, pursuant 
to the U.S. Court of Appeals for the District of Columbia (DC Circuit 
Court) opinion in EME Homer City, any such disapproval would not at 
this time trigger an obligation for EPA to promulgate a FIP within two 
years.
    EPA disagrees with the commenter that EPA cannot defer action on 
the 110(a)(2)(D)(i)(I) portion of the Delaware SIP submittal and 
therefore must now approve or disapprove Delaware's section 
110(a)(2)(D)(i)(I) SIP submission for the 2008 ozone NAAQS. EPA 
indicated in its notice of proposed rulemaking that it intended to take 
separate rulemaking action on the 110(a)(2)(D)(i)(I) portion of 
Delaware's SIP submission and nothing in the CAA bars EPA from 
concluding that action on that portion of the submittal should be 
deferred. EPA found Delaware's March 27, 2013 infrastructure SIP for 
the 2008 ozone NAAQS complete on May 20, 2013. Therefore, pursuant to 
section 110(k)(2) of the CAA, EPA has until May 20, 2014 to act on all 
portions of Delaware's submittal. In this case, EPA has chosen to act 
on a portion of the SIP submittal prior to that deadline. The commenter 
has not identified any provision of the CAA that prohibits EPA from 
doing so. The commenter has also not identified any provision of the 
CAA that prohibits EPA from approving a SIP without the good neighbor 
provision or

[[Page 18646]]

that prohibits EPA from deciding to act separately on the portion of a 
SIP submission addressing that provision. Section 110(k)(3) of the CAA 
authorizes EPA to approve a plan in full, disapprove it in full, or 
approve it in part and disapprove it in part, depending on the extent 
to which such plan meets the requirements of the CAA. This authority to 
approve the states' SIP revisions in separable parts was included in 
the 1990 Amendments to the CAA to overrule a decision in the Court of 
Appeals for the Ninth Circuit holding that EPA could not approve 
individual measures in a plan submission without either approving or 
disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 
U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of 
Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).
    As such, EPA interprets its authority under section 110(k)(3) as 
affording EPA the discretion to approve or conditionally approve 
individual elements of Delaware's infrastructure SIP submission for the 
2008 ozone NAAQS, separate and apart from any action with respect to 
the requirements of section 110(a)(2)(D)(i)(I) of the CAA with respect 
to that NAAQS. EPA views discrete infrastructure SIP requirements, such 
as the requirements of section 110(a)(2)(D)(i)(I) of the CAA, as 
severable from the other infrastructure elements and interprets section 
110(k)(3) of the CAA as allowing it to act on individual severable 
measures in a plan submission. While EPA acknowledges it has an 
obligation under section 110(k)(2) to act on the 110(a)(2)(D)(i)(I) 
portion of the March 27, 2013 SIP submittal, EPA believes it has 
discretion under section 110(k) of the CAA to act upon the various 
individual elements of the State's infrastructure SIP submission, 
separately or together, as appropriate. The commenter has not raised a 
compelling legal or environmental rationale for an alternate 
interpretation. As the time for EPA to act upon the 110(a)(2)(D)(i)(I) 
portion of Delaware's submittal has not yet expired, EPA believes it 
may appropriately act upon the remainder of the SIP submittal and take 
action on the 110(a)(2)(D)(i)(I) portion in a separate action. And the 
decision to defer action on the portion of the submission addressing 
section 110(a)(2)(D)(i)(I) of the CAA is reasonable in light of the 
uncertainty created by the Supreme Court review of the DC Circuit Court 
decision in EME Homer City--a decision which, among other things, 
interpreted that section of the CAA.
    Additionally, EPA notes that the commenter has not demonstrated 
that EPA could take either of the actions requested. The commenter has 
neither demonstrated that the 110(a)(2)(D)(i)(I) portion of the SIP 
submission is sufficient to prohibit any emissions that significantly 
contribute to nonattainment or interfere with maintenance in any other 
state, nor demonstrated that EPA at this time could establish a two 
year deadline for EPA to promulgate a FIP addressing any such 
emissions. In light of the DC Circuit Court opinion in EME Homer City, 
there is not at this time any basis for contending that EPA must issue 
a FIP within two years of any future disapproval of Delaware's 
110(a)(2)(D)(i)(I) SIP submission as EPA has not yet quantified 
Delaware's good neighbor obligations under the 2008 ozone NAAQS.
    EPA has historically interpreted the CAA as requiring states to 
submit SIPs addressing the requirements of section 110(a)(2)(D)(i)(I) 
of the CAA within three years of the promulgation or revision of a 
NAAQS. Similarly, EPA has interpreted the CAA as providing that any 
disapproval of a 110(a)(2)(D)(i)(I) SIP submission, or a finding that a 
state has failed to make such a submission, would trigger an obligation 
for EPA to promulgate a FIP within two years if the state did not 
correct the SIP deficiency within that time. EPA continues to agree 
that the plain language of the statute establishes these obligations. 
However, the DC Circuit Court clearly articulated in its opinion in EME 
Homer City that SIPs under section 110(a)(2)(D)(i)(I) of the CAA are 
not due until EPA has defined a state's contribution to nonattainment 
or interference with maintenance in another state. See EME Homer City 
Generation, LP v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted 133 
U.S. 2857 (2013). EPA has not yet done this for the 2008 ozone NAAQS. 
While the Supreme Court has agreed to review the EME Homer City 
decision, the DC Circuit Court's decision currently remains in place. 
EPA intends to act in accordance with the EME Homer City opinion unless 
it is reversed or otherwise modified by the Supreme Court. See also 78 
FR 14683 (concluding that, under the DC Circuit Court opinion in EME 
Homer City, disapproval of a 110(a)(2)(D)(i)(I) SIP submitted by 
Kentucky did not start a FIP clock).
    Further, because the EPA rule known as CSAPR reviewed by the DC 
Circuit Court in EME Homer City was designated by EPA as a ``nationally 
applicable'' rule within the meaning of section 307(b)(1) of the CAA 
with petitions for review of CSAPR required to be filed in the DC 
Circuit Court, EPA believes the DC Circuit Court's decision in EME 
Homer City is also nationally applicable. As such, EPA does not intend 
to take any actions, even if they are only reviewable in another 
Federal Circuit Court of Appeals that are inconsistent with the 
decision of the DC Circuit Court. For this reason, even if EPA were to 
disapprove the 110(a)(2)(D)(i)(I) SIP submission from Delaware, any 
such disapproval would not at this time trigger an obligation for EPA 
to issue a FIP within two years.
    In sum, the concerns raised by the commenter do not establish that 
it is inappropriate or unreasonable for EPA to approve the portions of 
Delaware's March 27, 2013 infrastructure SIP submission for the 2008 
ozone NAAQS described in the proposed approval. Moreover, EPA notes 
that it is actively working with state partners to assess next steps to 
address air pollution that crosses state boundaries and has begun work 
on a rulemaking to address transported air pollution affecting the 
ability of states in the eastern half of the United States to attain 
and maintain the 2008 ozone NAAQS. That rulemaking action is separate 
from this SIP approval rulemaking action. It is also technically 
complex and must comply with the rulemaking requirements of section 
307(d) of the CAA.

B. Delaware Solid Waste Authority

    Comment: DSWA comments on the possibility of Delaware adopting the 
Ozone Transport Commission's anti-idling recommendations for certain 
motor vehicles. DSWA expresses its concern with the temperature 
exemptions meant to safeguard the equipment operators. DSWA recommends 
changing the temperature range when exemptions are allowed from anti-
idling regulations from below 25 degrees Fahrenheit and above 85 
degrees Fahrenheit to below 40 degrees Fahrenheit and above 75 degrees 
Fahrenheit. DSWA asserts the recommended temperature exemption was 
overly optimistic and the narrower temperature range (below 40 degrees 
Fahrenheit and above 75 degrees Fahrenheit) would allow operation of 
heating and air conditioning systems in certain motor vehicles when 
idling when temperature control may be necessary for safeguarding 
operators of those motor vehicles.
    Response: EPA appreciates DSWA's comment. However, in this 
rulemaking action, EPA is neither approving nor disapproving any 
existing state rules or regulations into the Delaware SIP. Thus, the 
comment is not relevant to this

[[Page 18647]]

rulemaking action. Delaware already has an anti-idling regulation, 
Regulation 1145, Excessive Idling of Heavy Duty Vehicles. In addition, 
EPA has previously approved this regulation, Regulation 1145, into the 
Delaware SIP. See 40 CFR 52.420(c) and 74 FR 51792, October 8, 2009. 
While Delaware's infrastructure SIP for the 2008 ozone NAAQS has listed 
Regulation 1145 as one enforceable control measure for section 
110(a)(2)(A) of the CAA which meets applicable requirements of the CAA, 
EPA is acting on the infrastructure SIP as meeting the section 
110(a)(2) requirements overall. As EPA stated in ``Guidance on 
Infrastructure SIP Elements under CAA Sections 110(a)(1) and 
110(a)(2),'' dated September 13, 2013 (Infrastructure SIP Guidance), 
``[t]he conceptual purpose of an infrastructure SIP submission is to 
assure that the air agency's SIP contains the necessary structural 
requirements for the new or revised NAAQS, whether by establishing that 
the SIP already contains the necessary provisions, by making a 
substantive SIP revision to update the SIP, or both.'' Infrastructure 
SIP Guidance at p. 2. EPA has established that Delaware's existing SIP 
meets requirements of section 110(a)(2)(A) of the CAA and is not adding 
any regulations to the Delaware SIP. As DSWA is commenting about 
suggested changes in a provision which is already Delaware law, EPA 
suggests DSWA pursue its comments with DNREC. EPA believes Delaware's 
infrastructure SIP adequately address section 110(a)(2)(A) of the CAA 
for the 2008 ozone NAAQS.

C. Sierra Club

    Comment 1: Sierra Club contends that EPA cannot approve the section 
110(a)(2)(A) portion of Delaware's 2008 ozone infrastructure SIP 
revision because the plain language of 110(a)(2)(A) of the CAA, 
legislative history of the CAA, case law, EPA regulations such as 40 
CFR 51.112(a), and EPA interpretations in rulemakings, require the 
inclusion in an infrastructure SIP of enforceable emission limits to 
prevent NAAQS violations in areas not designated nonattainment. 
Specifically, Sierra Club cites air monitoring reports for Kent County, 
Delaware indicating a violation of the NAAQS based on Kent County's 
2010-2012 design value. The commenter states EPA must disapprove the 
infrastructure SIP because it impermissibly fails to include 
enforceable eight-hour ozone emission limits to ensure attainment and 
maintenance of the NAAQS in areas designated attainment. Sierra Club 
comments that Delaware had only added two provisions, related to 
visibility and state boards, to its ``old SIP'' which addressed the 
1997 ozone NAAQS and claims the Delaware SIP is insufficient for 
Delaware to attain and maintain the 2008 ozone NAAQS as evidenced by 
the monitoring data from Kent County showing violation of the 2008 
ozone NAAQS for 2010-2012.
    The commenter alleges that this violation in Kent County, a 
designated attainment area, demonstrates that the Delaware 
infrastructure SIP lacks adequate emission limits to attain and 
maintain the 2008 ozone NAAQS and thus EPA must disapprove the 
infrastructure SIP. Sierra Club notes that Delaware has not specified 
how it plans to address the violation in Kent County nor established 
emission limits to reduce the ``dangerous ozone concentrations'' in the 
county. The commenter states EPA must require Delaware to amend its 
infrastructure SIP to include enforceable eight-hour ozone emission 
limits that ensure sources cannot cause violations of the 2008 ozone 
NAAQS in areas designated attainment. Sierra Club contends that the 
infrastructure SIP must be disapproved because it fails to include 
adequate enforceable eight-hour emission limitations for sources of 
ozone precursors to ensure attainment and maintenance of the NAAQS in 
areas designated attainment in violation of section 110(a)(1) and 
(a)(2)(A) of the CAA and 40 CFR 51.112.
    Response 1: EPA disagrees with the commenter that the statute is 
clear on its face that infrastructure SIPs must include detailed 
attainment and maintenance plans for all areas of the state and must be 
disapproved if air quality data that became available late in the 
process or after the infrastructure SIP was due and submitted changes 
the status of areas within the state. In subsections (a) through (e) of 
this rulemaking action, EPA addresses the commenter's specific 
arguments that the statutory language, legislative history, case law, 
EPA regulations, and prior rulemaking actions by EPA mandate the narrow 
interpretation they advocate. EPA believes that section 110(a)(2)(A) is 
reasonably interpreted to require states to submit SIPs that reflect 
the first step in their planning for attaining and maintaining a new or 
revised NAAQS and that they contain enforceable control measures and a 
demonstration that the state has the available tools and authority to 
develop and implement plans to attain and maintain the NAAQS.
    As an initial matter, EPA disagrees that air quality monitoring 
that became available four years following promulgation of the 2008 
ozone NAAQS and after the ozone infrastructure SIP was submitted 
provides a basis for disapproving the Delaware ozone infrastructure 
SIP. States must develop SIPs based on the information they have during 
the SIP development process and data that becomes available after that 
process is completed cannot undermine the reasonable assumptions that 
were made by the state based on the information it had available as it 
developed the plan. Thus, the data cited by the commenter should not be 
considered in determining whether the SIP should be approved. The 
suggestion that Delaware's ozone infrastructure SIP must include 
measures addressing a violation of the standard that did not occur 
until shortly after the SIP was due and submitted cannot be supported. 
The CAA provides states with three years to develop infrastructure SIPs 
and states cannot reasonably be expected to address the annual change 
in an area's design value for each year over that period, nor to 
predict the air quality data in periods after development and 
submission of the SIPs. Moreover, the CAA recognizes and has provisions 
to address changes in air quality over time, such as an area slipping 
from attainment to nonattainment or changing from nonattainment to 
attainment. These include provisions providing for redesignation in 
section 107(d) of the CAA and provisions in section 110(k)(5) of the 
CAA allowing EPA to call on the state to revise its SIP, as 
appropriate.
    The commenter suggests that EPA must disapprove the Delaware ozone 
infrastructure SIP because the fact that an area in Delaware has air 
quality data slightly above the standard proves that the infrastructure 
SIP is inadequate to demonstrate maintenance for that area. EPA 
disagrees because we do not believe that section 110(a)(2)(A) of the 
CAA requires detailed planning SIPs demonstrating either attainment or 
maintenance for specific geographic areas of the state. The 
infrastructure SIP is triggered by promulgation of the NAAQS, not 
designation. Moreover, infrastructure SIPs are due three years 
following promulgation of the NAAQS and designations are not due until 
two years (or in some cases three years) following promulgation of the 
NAAQS. Thus, during a significant portion of the period that a state 
has available for developing the infrastructure SIP, it does not know 
what the designation will be for individual areas of the state.\1\

[[Page 18648]]

In light of the structure of the CAA, EPA's long-standing position 
regarding infrastructure SIPs is that they are general planning SIPs to 
ensure that the state has adequate resources and authority to implement 
a NAAQS in general throughout the state and not detailed attainment and 
maintenance plans for each individual area of the state.
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    \1\ While it is true that there may be some monitors within a 
state with values so high as to make a nonattainment designation of 
the county with that monitor almost a certainty, the geographic 
boundaries of the nonattainment area associated with that monitor 
would not be known until EPA issues final designations. In any 
event, the Kent County area of concern to the commenter does not fit 
that description.
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    Our interpretation that infrastructure SIPs are more general 
planning SIPs is consistent with the statute as understood in light of 
its history and structure. When Congress enacted the CAA in 1970, it 
did not include provisions requiring states and the EPA to label areas 
as attainment or nonattainment. Rather, states were required to include 
all areas of the state in ``air quality control regions'' (AQCRs) and 
section 110 set forth the core substantive planning provisions for 
these AQCRs. At that time, Congress anticipated that states would be 
able to address air pollution quickly pursuant to the very general 
planning provisions in section 110 and could bring all areas into 
compliance with the NAAQS within five years. Moreover, at that time, 
section 110(a)(2)(A)(i) of the CAA specified that the section 110 plan 
provide for ``attainment'' of the NAAQS and section 110(a)(2)(B) 
specified that the plan must include ``emission limitations, schedules, 
and timetables for compliance with such limitations, and such other 
measures as may be necessary to insure attainment and maintenance [of 
the NAAQS].'' In 1977, Congress recognized that the existing structure 
was not sufficient and many areas were still violating the NAAQS. At 
that time, Congress for the first time added provisions requiring 
states and EPA to identify whether areas of the state were violating 
the NAAQS (i.e., were nonattainment) or were meeting the NAAQS (i.e., 
were attainment) and established specific planning requirements in 
section 172 of the CAA for areas not meeting the NAAQS. In 1990, many 
areas still had air quality not meeting the NAAQS and Congress again 
amended the CAA and added yet another layer of more prescriptive 
planning requirements for each of the NAAQS, with the primary 
provisions for ozone in section 182 of the CAA. At that same time, 
Congress modified section 110 to remove references to the section 110 
SIP providing for attainment, including removing pre-existing section 
110(a)(2)(A) in its entirety and renumbering subparagraph (B) as 
section 110(a)(2)(A) of the CAA. Additionally, Congress replaced the 
clause ``as may be necessary to insure attainment and maintenance [of 
the NAAQS]'' with ``as may be necessary or appropriate to meet the 
applicable requirements of this chapter.'' Thus, the CAA has 
significantly evolved in the more than 40 years since it was originally 
enacted. While at one time section 110 did provide the only detailed 
SIP planning provisions for states and specified that such plans must 
provide for attainment of the NAAQS, under the structure of the current 
CAA, section 110 is only the initial stepping-stone in the planning 
process for a specific NAAQS. And, more detailed, later-enacted 
provisions govern the substantive planning process, including planning 
for attainment of the NAAQS.
    For all of these reasons, EPA disagrees with the commenter that EPA 
must disapprove an infrastructure SIP revision if there are monitored 
violations of the standard in the state and the section 110(a)(2)(A) 
revision does not have detailed plans for demonstrating how the state 
will bring that area into attainment. Rather, EPA believes that the 
proper inquiry at this juncture is whether the state has met the basic 
structural SIP requirements appropriate at the point in time EPA is 
acting upon the submittal.
    Moreover, as addressed in EPA's proposed approval for this rule, 
Delaware submitted a list of existing emission reduction measures in 
the SIP that control emissions of volatile organic compounds (VOCs) and 
nitrogen oxides (NOx). Delaware's SIP revision reflects several 
provisions that have the ability to reduce ground level ozone and its 
precursors. The Delaware SIP relies on measures and programs used to 
implement previous ozone NAAQS. Because there is no substantive 
difference between the previous ozone NAAQS and the more recent ozone 
NAAQS, other than the level of the standard, the provisions relied on 
by Delaware will provide benefits for the new NAAQS; in other words, 
the measures reduce overall ground-level ozone and its precursors and 
are not limited to reducing ozone levels to meet one specific NAAQS.
    EPA shares the commenter's concern regarding Kent County's 
violation of the 2008 eight-hour ozone NAAQS in 2010-2012 and will work 
appropriately with the State to address any issues.\2\ Further, in 
approving Delaware's infrastructure SIP revision, EPA is affirming that 
Delaware has sufficient authority to take the types of actions required 
by the CAA in order to bring such areas back into attainment.
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    \2\ EPA notes that preliminary monitoring data for 2013 
indicates that Kent County, Delaware is not violating the 2008 ozone 
NAAQS for the period 2011-2013. The 2013 data is uncertified. States 
are required to certify 2013 data by May 1, 2014.
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a. The Plain Language of the CAA
    Comment 2: The commenter states that on its face the CAA ``requires 
I-SIPs to be adequate to prevent violations of the NAAQS.'' In support, 
the commenter quotes the language in section 110(a)(1) which requires 
states to adopt a plan for implementation, maintenance, and enforcement 
of the NAAQS and the language in section 110(a)(2)(A) of the CAA which 
requires SIPs to include enforceable emissions limitations as may be 
necessary to meet the requirements of the CAA and which commenter 
claims includes the maintenance plan requirement. Sierra Club notes the 
CAA definition of emission limit and reads these provisions together to 
require ``enforceable emission limits on source emissions sufficient to 
ensure maintenance of the NAAQS.''
    Response 2: EPA disagrees that section 110 is ``clear on its face'' 
and must be interpreted in the manner suggested by Sierra Club. As 
explained earlier in this rulemaking action, section 110 of the CAA is 
only one provision that is part of the complicated structure governing 
implementation of the NAAQS program under the CAA, as amended in 1990, 
and it must be interpreted in the context of not only that structure, 
but also of the historical evolution of that structure. In light of the 
revisions to section 110 since 1970 and the later-promulgated and more 
specific planning requirements of the CAA, EPA reasonably interprets 
the requirement in section 110(a)(2)(A) that the plan provide for 
``implementation, maintenance and enforcement'' to mean that the 
infrastructure SIP must contain enforceable emission limits that will 
aid in attaining and/or maintaining the NAAQS and that the state 
demonstrate that it has the necessary tools to implement and enforce a 
NAAQS, such as adequate state personnel and an enforcement program. 
With regard to the requirement for emission limitations, EPA has 
interpreted this to mean for purposes of section 110 of the CAA that 
the state may rely on measures already in place to address the 
pollutant at issue or any new control measures

[[Page 18649]]

that the state may choose to submit. As EPA stated in ``Guidance on 
Infrastructure SIP Elements under CAA Sections 110(a)(1) and 
110(a)(2),'' dated September 13, 2013 (Infrastructure SIP Guidance), 
``[t]he conceptual purpose of an infrastructure SIP submission is to 
assure that the air agency's SIP contains the necessary structural 
requirements for the new or revised NAAQS, whether by establishing that 
the SIP already contains the necessary provisions, by making a 
substantive SIP revision to update the SIP, or both. Overall, the 
infrastructure SIP submission process provides an opportunity . . . to 
review the basic structural requirements of the air agency's air 
quality management program in light of each new or revised NAAQS.'' 
Infrastructure SIP Guidance at p. 2.
    The commenter makes a general allegation that Delaware does not 
have regulations sufficient to ensure compliance with the 2008 ozone 
NAAQS ``proven by the fact that Kent County violated the 2008 Ozone 
NAAQS.'' EPA addressed the adequacy of Delaware's infrastructure SIP 
for 110(a)(2)(A) purposes to meet applicable requirements of the CAA in 
the TSD accompanying the August 30, 2013 NPR and explained why EPA 
believes the SIP includes enforceable emission limitations and other 
control measures necessary for maintenance of the 2008 ozone NAAQS 
throughout the state. For Delaware, including Kent County, these 
include Delaware's enforceable emission limitations and other control 
measures at: 7 DE Admin. Codes 1113, 1124, 1141, 1144, 1145, 1146, and 
1148. These regulations are identified as part of the Delaware SIP at 
40 CFR 52.420(c). Enforceable emission limitations and schedules are 
also contained in Delaware's submitted Reasonable Further Progress 
(RFP) and attainment demonstration SIPs that were approved on April 8, 
2010 (75 FR 17863) and October 5, 2012 (77 FR 60914), respectively.
b. The Legislative History of the CAA
    Comment 3: Sierra Club cites two excerpts from the legislative 
history of the CAA Amendments of 1970 claiming they support an 
interpretation that SIP revisions under section 110 of the CAA must 
include emissions limitations sufficient to show maintenance of the 
NAAQS in Delaware, citing the Senate Committee Report and the 
subsequent Senate Con ference Report accompany ing the 1970 CAA.
    Response 3: As provided in the previous response, the CAA, as 
enacted in 1970, including its legislative history, cannot be 
interpreted in isolation from the later amendments that refined that 
structure and deleted relevant language from section 110 concerning 
demonstrating attainment. In any event, the two excerpts of legislative 
history cited by the commenter merely provide that states should 
include enforceable emission limits in their SIPs and they do not 
mention or otherwise address whether states are required to include 
maintenance plans for all areas of the state as part of the 
infrastructure SIP. Moreover, the cited legislative history pertains to 
section 110 as promulgated in 1970 and not to section 110 as amended by 
the CAA Amendments of 1990. As provided earlier in this rulemaking 
action, the TSD for the proposed rule explains why EPA believes the SIP 
includes enforceable emissions limitations for the State of Delaware 
including Kent County.
c. Case Law
    Comment 4: Sierra Club also discusses several cases applying the 
CAA which Sierra Club claims support their contention that courts have 
been clear that section 110(a)(2)(A) of the CAA requires enforceable 
emissions limits in infrastructure SIPs to prevent violations of the 
NAAQS. Sierra Club first cites to language in Train v. NRDC, 421 U.S. 
60, 78 (1975), addressing the requirement for ``emission limitations'' 
and stating that emission limitations ``are specific rules to which 
operators of pollution sources are subject, and which if enforced 
should result in ambient air which meet the national standards.'' 
Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v. 
EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA 
directs EPA to withhold approval of a SIP where it does not ensure 
maintenance of the NAAQS and Mision Industrial, Inc. v. EPA, 547 F.2d 
123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA 
of 1970. The commenter contends that the 1990 Amendments do not alter 
how courts have interpreted the requirements of section 110 of the CAA, 
quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 
(2004) which in turn quoted section 110(a)(2)(A) of the CAA and also 
states that ``SIPs must include certain measures Congress specified'' 
to ensure attainment of the NAAQS. The commenter also quotes several 
additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 
F.3d 1174, 1180 (9th Cir. 2012) (``The Clean Air Act directs states to 
develop implementation plans--SIPs--that `assure' attainment and 
maintenance of [NAAQS] through enforceable emissions limitations''); 
Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (``Each State must 
submit a [SIP] that specif[ies] the manner in which [NAAQS] will be 
achieved and maintained within each air quality control region in the 
State''). Finally, they cited Mich. Dept. of Envtl. Quality v. Browner, 
230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may not 
approve a SIP revision that does not demonstrate how the rules would 
not interfere with attainment and maintenance of the NAAQS.
    Response 4: None of the cases cited by the commenter support the 
commenter's contention that section 110(a)(2)(A) is clear that 
infrastructure SIPs must include detailed plans providing for 
attainment and maintenance of the NAAQS in all areas of the state nor 
do they shed light on how section 110(a)(2)(A) of the CAA may 
reasonably be interpreted. With the exception of Train, none of the 
cases cited by the commenter concerned the interpretation of section 
110(a)(2)(A) of the CAA (or section 110(a)(2)(B) of the pre-1990 CAA). 
Rather, in the context of a challenge to an EPA action on revisions to 
a SIP that were required and approved as meeting other provisions of 
the CAA or in the context of an enforcement action, the D.C. Circuit 
Court references section 110(a)(2)(A) (or section 110(a)(2)(B) of the 
pre-1990 CAA) in the background section of its decision.
    In Train, 421 U.S. 60, a case that was decided almost 40 years ago, 
the D.C. Circuit Court was addressing a state revision to an attainment 
plan submission made pursuant to section 110 of the CAA, the sole 
statutory provision at that time regulating such submissions. The issue 
in that case concerned whether changes to requirements that would occur 
before attainment was required were variances that should be addressed 
pursuant to the provision governing SIP revisions or were 
``postponements'' that must be addressed under section 110(f) of the 
CAA of 1970, which contained prescriptive criteria. The D.C. Circuit 
Court concluded that EPA reasonably interpreted section 110(f) not to 
restrict a state's choice of the mix of control measures needed to 
attain the NAAQS and that revisions to SIPs that would not impact 
attainment of the NAAQS by the attainment date were not subject to the 
limits of section 110(f). Thus the issue was not whether a section 110 
SIP needs to provide for attainment or whether emissions limits are 
needed as part of the SIP; rather the issue was which statutory 
provision governed when the state wanted to revise the emission limits 
in its SIP if such revision would not impact attainment or

[[Page 18650]]

maintenance of the NAAQS. To the extent the holding in the case has any 
bearing on how section 110(a)(2)(A) of the CAA might be interpreted, it 
is important to realize that in 1975, when the opinion was issued, 
section 110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) 
expressly referenced the requirement to attain the NAAQS, a reference 
that was removed in 1990.
    The decision in Pennsylvania Dept. of Envtl. Resources was also 
decided based on the pre-1990 provision of the CAA. At issue was 
whether EPA properly rejected a revision to an approved plan where the 
inventories relied on by the state for the updated submission had gaps. 
The D.C. Circuit Court quoted section 110(a)(2)(B) of the pre-1990 CAA 
in support of EPA's disapproval, but did not provide any interpretation 
of that provision. Yet, even if the D.C. Circuit Court had interpreted 
that provision, EPA notes that it was modified by Congress in 1990; 
thus, this decision has little bearing on the issue here.
    At issue in Mision Industrial, 547 F.2d 123, was the definition of 
``emissions limitation'' not whether section 110 of the CAA requires 
the state to demonstrate how all areas of the state will attain and 
maintain the NAAQS as part of their infrastructure SIPs. The language 
from the opinion quoted by the commenter does not interpret but rather 
merely describes section 110(a)(2)(A). The commenter does not raise any 
concerns about whether the measures relied on by the state in the 
infrastructure SIP are ``emissions limitations'' and the decision in 
this case has no bearing here.\3\ In Mont. Sulphur & Chem. Co., 666 
F.3d 1174, the D.C. Circuit Court was reviewing a FIP that EPA 
promulgated after a long history of the state failing to submit an 
adequate SIP. The D.C. Circuit Court cited generally to section 107 and 
110(a)(2)(A) of the CAA for the proposition that SIPs should assure 
attainment and maintenance of NAAQS through emission limitations, but 
this language was not part of the court's holding in the case. The 
commenter suggested that Alaska Dept. of Envtl. Conservation, 540 U.S. 
461, stands for the proposition that the 1990 CAA Amendments do not 
alter how courts interpret section 110. This claim is inaccurate. 
Rather, the D.C. Circuit Court quoted section 110(a)(2)(A), which, as 
noted previously, differs from the pre-1990 version of that provision 
and the court makes no mention of the changed language. Furthermore, 
the commenter also quotes the D.C. Circuit Court's statement that 
``SIPs must include certain measures Congress specified'' but that 
statement specifically referenced the requirement in section 
110(a)(2)(C)of the CAA, which requires an enforcement program and a 
program for the regulation of the modification and construction of new 
sources. Notably, at issue in that case was the state's ``new source'' 
permitting program, not its infrastructure SIP.
---------------------------------------------------------------------------

    \3\ While the commenter does contend that the State shouldn't be 
allowed to rely on emission reductions that were developed for the 
prior ozone standards (which we address above), commenter does not 
claim that any of the measures are not ``emissions limitations'' 
within the definition of the CAA.
---------------------------------------------------------------------------

    Two of the cases cited by the commenter, Mich. Dept. of Envtl. 
Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret section 
110(l) of the CAA, the provision governing ``revisions'' to plans, and 
not the initial plan submission requirement under section 110(a)(2) for 
a new or revised NAAQS, such as the infrastructure SIP at issue in this 
instance. In those cases, the D.C. Circuit Court cited to section 
110(a)(2)(A) of the CAA solely for the purpose of providing a brief 
background of the CAA.
d. EPA Regulations, Such as 40 CFR 51.112(a)
    Comment 5: The comments cite to 40 CFR 51.112(a), providing that 
``[e]ach plan must demonstrate that the measures, rules and regulations 
contained in it are adequate to provide for the timely attainment and 
maintenance of the [NAAQS].'' The commenter asserts that this 
regulation requires all SIPs to include emissions limits necessary to 
ensure attainment of the NAAQS. The commenter states that ``[a]lthough 
these regulations were developed before the Clean Air Act separated 
infrastructure SIPs from nonattainment SIPs--a process that began with 
the 1977 amendments and was completed by the 1990 amendments--the 
regulations apply to I-SIPs.'' The commenter relies on a statement in 
the preamble to the 1986 action restructuring and consolidating 
provisions in part 51, in which EPA stated that ``[i]t is beyond the 
scope of th[is] rulemaking to address the provisions of Part D of the 
Act . . .'' (51 FR 40656, November 7, 1986).
    Response 5: The commenter's reliance on 40 CFR 51.112 to support 
its argument that infrastructure SIPs must contain emission limits 
``adequate to prohibit NAAQS violations'' and adequate or sufficient to 
ensure the maintenance of the NAAQS is not supported. As an initial 
matter, EPA notes and the commenter recognizes this regulatory 
provision was initially promulgated and ``restructured and 
consolidated'' prior to the CAA Amendments of 1990, in which Congress 
removed all references to ``attainment'' in section 110(a)(2)(A). And, 
it is clear on its face that 40 CFR 51.112 applies to plans 
specifically designed to attain the NAAQS. EPA interprets these 
provisions to apply when states are developing ``control strategy'' 
SIPs such as the detailed attainment and maintenance plans required 
under other provisions of the CAA, as amended in 1977 and again in 
1990, such as section 175A and 182. The commenter suggests that these 
provisions must apply to section 110 SIPs because in the preamble to 
EPA's action ``restructuring and consolidating'' provisions in part 51, 
EPA stated that the new attainment demonstration provisions in the 1977 
Amendments to the CAA were ``beyond the scope'' of the rulemaking. It 
is important to note, however, that EPA's action in 1986 was not to 
establish new substantive planning requirements, but rather was meant 
merely to consolidate and restructure provisions that had previously 
been promulgated. EPA noted that it had already issued guidance 
addressing the new ``Part D'' attainment planning obligations. Also, as 
to maintenance regulations, EPA expressly stated that it was not making 
any revisions other than to re-number those provisions. Id. at 40657.
    Although EPA was explicit that it was not establishing requirements 
interpreting the provisions of new ``part D'' of the CAA, it is clear 
that the regulations being restructured and consolidated were intended 
to address control strategy plans. In the preamble, EPA clearly stated 
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy: 
SOx and p.m. (portion)''), 51.14 (``Control strategy: CO, 
HC, Ox and NO2 (portion)''), 51.80 
(``Demonstration of attainment: Pb (portion)''), and 51.82 (``Air 
quality data (portion)''). Id. at 40660. Thus, the present-day 51.112 
contains consolidated provisions that are focused on control strategy 
SIPs and the infrastructure SIP is not such a plan.
e. EPA Interpretations in Other Rulemakings
    Comment 6: The commenter also references two prior EPA rulemaking 
actions where EPA disapproved or proposed to disapprove SIPs and claims 
they were actions in which EPA relied on section 110(a)(2)(A) of the 
CAA and 40 CFR 51.112 to reject infrastructure SIPs. The commenter 
first points to a 2006 partial approval and partial disapproval of 
revisions to Missouri's existing plan addressing the sulfur dioxide 
(SO2) NAAQS. In that action,

[[Page 18651]]

EPA cited section 110(a)(2)(A) of the CAA as a basis for disapproving a 
revision to the State plan on the basis that the State failed to 
demonstrate the SIP was sufficient to ensure maintenance of the 
SO2 NAAQS after revision of an emission limit and cited to 
40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP 
are adequate to attain the NAAQS. Second, Sierra Club cites a 2013 
proposed disapproval of a revision to the SO2 SIP for 
Indiana, where the revision removed an emission limit that applied to a 
specific emissions source at a facility in the State. EPA relied on 40 
CFR 51.112(a) in proposing to reject the revision, stating that the 
State had not demonstrated that the emission limit was ``redundant, 
unnecessary, or that its removal would not result in or allow an 
increase in actual SO2 emissions.'' EPA further stated in 
that proposed disapproval that the State had not demonstrated that 
removal of the limit would not ``affect the validity of the emission 
rates used in the existing attainment demonstration.''
    Response 6: EPA does not agree that the two prior actions 
referenced by the commenter establish how EPA reviews infrastructure 
SIPs. It is clear from both the final Missouri rule and the proposed 
Indiana rule that EPA was not reviewing initial infrastructure SIP 
submissions under section 110 of the CAA, but rather reviewing 
revisions that would make an already approved SIP designed to 
demonstrate attainment of the NAAQS less stringent. EPA's partial 
approval and partial disapproval of revisions to restrictions on 
emissions of sulfur compounds for the Missouri SIP in 71 FR 12623 
addressed a control strategy SIP and not an infrastructure SIP. The 
Indiana action provides even less support for the commenter's position. 
As an initial matter, the Indiana action is a proposal and thus cannot 
be presumed to reflect the Agency's final position. In any event, the 
review in that rule was of a completely different requirement than the 
110(a)(2)(A) SIP. Rather, in that case, the State had an approved 
SO2 attainment plan and was seeking to remove from the SIP 
provisions relied on as part of the modeled attainment demonstration. 
EPA proposed that the State had failed to demonstrate under section 
110(l) of the CAA why the SIP revision would not result in increased 
SO2 emissions and thus interfere with attainment of the 
NAAQS. Nothing in that rulemaking addresses the necessary content of 
the initial infrastructure SIP for a new or revised NAAQS. Rather, it 
is simply applying the clear statutory requirement that a state must 
demonstrate why a revision to an approved attainment plan will not 
interfere with attainment of the NAAQS.
    Comment 7: Sierra Club states that EPA should disapprove Delaware's 
infrastructure SIP submittal for the 2008 ozone NAAQS with regard to 
section 110(a)(2)(D)(i)(II) (visibility prong) and 110(a)(2)(J) because 
the commenter asserts that Delaware failed to submit its five-year 
progress report for regional haze by the required date and EPA has not 
evaluated the report or taken final action on that report. Sierra Club 
states that Delaware's five-year progress report for regional haze was 
due on September 25, 2013 pursuant to 40 CFR 51.308(g) because 
Delaware's initial regional haze SIP was submitted on September 25, 
2008. Sierra Club states EPA could not assess the efficacy of 
Delaware's regional haze SIP without reviewing the five-year progress 
report nor determine if the Delaware regional haze SIP was effective in 
improving visibility in other states. In addition, the commenter 
contends that Delaware does not have adequate best available retrofit 
technology (BART) limits because Delaware based its BART determination 
on comparing reductions that would be obtained under its multi-
pollutant rule from BART and non-BART eligible sources to the 
reductions that would be obtained from just BART eligible sources 
applying BART. Therefore, Sierra Club states EPA should disapprove the 
visibility elements of the Delaware infrastructure SIP submittal for 
2008 ozone NAAQS because NOX is a visibility impairing 
pollutant.
    Response 7: EPA disagrees with the commenter that EPA must 
disapprove the visibility elements of Delaware's ozone infrastructure 
SIP due to allegedly inadequate BART limits in its regional haze SIP. 
The Delaware regional haze SIP did not include source-specific BART 
emission limits but rather required alternative measures that the State 
showed would achieve greater reasonable progress than BART. See (76 FR 
27973, May 13, 2011). EPA agreed, finding that the total emission 
reductions from Delaware's Regulation 1146, a multi-pollutant 
regulation for EGUs, greatly exceeded the reductions to be expected 
from BART at the four BART-eligible units in Delaware. Id.; see also 
(76 FR 42557, July 19, 2011). Although the commenter is now suggesting 
that the demonstration that Regulation 1146 would provide for greater 
reasonable progress than BART was flawed, EPA approved Delaware's 
regional haze plan as meeting the regional haze requirements, including 
those addressing BART, in July 2011. (76 FR 42557, July 19, 2011).
    The adequacy of the measures in the Delaware regional haze SIP 
addressing the BART requirements, however, is irrelevant to the 
question of whether Delaware's SIP meets the requirements of section 
110(a)(2)(D) of the CAA with respect to visibility. EPA interprets the 
visibility provisions in this section of the CAA as requiring states to 
include in their SIPs measures to prohibit emissions that would 
interfere with the reasonable progress goals set to protect Class I 
areas in other states. The regional haze rule at 40 CFR 51.308(d)(3) 
includes a similar requirement. EPA notes that in 2011, EPA determined 
that Delaware's regional haze SIP adequately prevents sources in 
Delaware from interfering with the reasonable progress goals adopted by 
other states to protect visibility during the first planning period. 
See 76 FR 27979. Specifically, EPA found that the Delaware regional 
haze SIP included the appropriate enforceable emission limitations, 
compliance schedules, and other measures necessary to achieve the 
reasonable progress goals set by New Jersey for the one Class I area 
influenced by Delaware emissions. Id. EPA also found that the Delaware 
regional haze SIP met the requirements of section 110(a)(2)(D)(i)(II) 
of the CAA regarding visibility for the 1997 eight-hour Ozone NAAQS and 
the 1997 and 2006 PM2.5 NAAQS. 76 FR 27984 (proposal); 76 FR 
42557 (final). EPA notes that the requirements of section 
110(a)(2)(D)(i)(II) of the CAA regarding visibility for the 2008 ozone 
NAAQS are the same as those for the 1997 eight-hour ozone NAAQS and the 
earlier PM2.5 standards. The commenter has not explained how 
the allegedly inadequate BART determination would affect these prior 
findings.
    EPA also disagrees with the commenter that EPA must disapprove 
Delaware's ozone infrastructure SIP because the State has not submitted 
and EPA has not approved a regional haze progress report. The regional 
haze regulations at 40 CFR 51.308(g) require Delaware (and other 
states) to submit a report to EPA five years from the submittal of its 
initial regional haze SIP. In the report, the state must, among other 
things, assess whether its current regional haze SIP is sufficient to 
enable nearby states to meet their established reasonable progress 
goals. Subsequent to EPA's proposed approval of the ozone 
infrastructure SIP, Delaware submitted as a proposed SIP revision, 
dated September 24, 2013, its five-year progress report on its approved 
regional haze SIP. In a separate rulemaking

[[Page 18652]]

signed February 11, 2014, EPA has proposed to approve Delaware's 
progress report; however, final action on the September 24, 2013 
submittal is not due pursuant to section 110(k)(2) of the CAA at this 
time. See (79 FR 10442, February 25, 2014). EPA accordingly disagrees 
with the commenter that EPA's approval of Delaware's five-year progress 
report is a required structural element necessary before EPA may 
approve Delaware's infrastructure SIP for element 110(a)(2)(D)(i)(II).
    EPA also disagrees with the commenter that Delaware's five-year 
report was overdue at the time EPA proposed to approve Delaware's 
infrastructure SIP for the 2008 ozone NAAQS. On August 30, 2013, the 
date of EPA's proposed action on the Delaware infrastructure SIP, 
Delaware was under no obligation as yet to submit its five-year 
progress report to meet the requirements in 40 CFR 51.308(g). As 
correctly identified by Sierra Club, the Delaware five-year progress 
report required by 40 CFR 51.308(g) was due on September 25, 2013. 
Although EPA has not taken final action to approve Delaware's progress 
report, from EPA's review of data provided by Delaware in its five-year 
progress report, including EPA's review of emissions data from 2008 
through 2011 on Delaware electric generating units (EGUs) from EPA's 
Clean Air Markets Division (CAMD) as provided by the State in its SIP 
submittal, emissions of SO2, the primary contributor to 
visibility impairment in the Mid-Atlantic/Northeast Visibility Union 
(MANE-VU) region, have declined significantly in the State since the 
Delaware regional haze SIP was submitted to EPA on September 25, 2008. 
Emissions of NOX from EGUs also have declined significantly 
since the regional haze SIP submittal. Specifically, Delaware's five-
year progress report notes that total SO2 emissions from 
point sources using ``currently available'' information were 
significantly less than the 2018 point source projections in the 
Delaware 2008 regional haze SIP submittal.\4\ EPA's review of 
visibility data from Delaware in its five-year progress report also 
shows the Class I area impacted by sources within Delaware is meeting 
or below its reasonable progress goals. In addition, based on EPA's 
review of the Delaware five-year progress report as discussed in EPA's 
proposed approval of the report, EPA has no reason to question the 
accuracy of Delaware's negative declaration to EPA pursuant to 40 CFR 
51.308(h) that no revision to Delaware's regional haze SIP is needed at 
this time to achieve established goals for visibility improvement and 
emissions reductions.
---------------------------------------------------------------------------

    \4\ Delaware's five-year progress report calculated total 
SO2 emissions from point sources using 2008 emissions 
inventory information supplemented with 2011 SO2 
emissions data for EGUs from EPA's CAMD to compare ``currently 
available'' data to projections for 2018 which were in Delaware's 
2008 regional haze SIP submittal.
---------------------------------------------------------------------------

    Therefore, based upon EPA's review of the relevant visibility data, 
emissions data, and modeling results provided by Delaware in the five-
year progress report and upon Delaware's approved regional haze SIP, 
EPA continues to believe that the State's existing SIP contains 
adequate provisions prohibiting sources from emitting visibility 
impairing pollutants in amounts which would interfere with neighboring 
states' SIP measures to protect visibility.
    In addition, with regard to the visibility protection aspect of 
section 110(a)(2)(J) of the CAA, as discussed in the TSD accompanying 
the NPR for this rulemaking, EPA stated that it recognizes that states 
are subject to visibility and regional haze program requirements under 
part C of the CAA. In the establishment of a new NAAQS such as the 2008 
ozone NAAQS, however, the visibility and regional haze program 
requirements under part C of Title I of the CAA do not change and there 
are no applicable visibility obligations under part C ``triggered'' 
under section 110(a)(2)(J) when a new NAAQS becomes effective. Given 
this, Delaware was under no obligation to address section 110(a)(2)(J) 
in its 2008 ozone infrastructure SIP.
    Comment 8: Sierra Club contends that EPA should not approve 
Delaware's 2008 eight-hour ozone infrastructure SIP revision because 
Delaware's SIP fails to incorporate the 2008 ozone NAAQS of 75 parts 
per billion (ppb) in Delaware Regulation 1103 and therefore fails to 
meet requirements of section 110(a)(2)(A) and 110(a)(2)(E)(i) of the 
CAA.
    Response 8: Sierra Club is correct that Regulation 1103, as 
reflected in the existing Delaware SIP, does not reference the 2008 
ozone NAAQS. However, Sierra Club fails to explain why they believe the 
failure of this regulation to reference the 2008 ozone standard would 
prevent approval of the infrastructure SIP. Regulation 1103 
specifically provides ``[t]he absence of a specific ambient air quality 
standard shall not preclude actions by the Department to control 
contaminants to assure protection, safety, welfare, and comfort of the 
people of the State of Delaware.'' Thus, even in the absence of an 
explicit reference to the 2008 ozone NAAQS, Regulation 1103 clearly 
provides that the State has the authority to adopt and implement 
regulations for that standard. Moreover, Sierra Club does not cite and 
EPA is not aware of any other provisions in Delaware's regulations that 
would undermine such authority. While certain regulations reference 
specific ozone NAAQS in the ``purposes'' section (see e.g., Regulation 
1142) in the context of describing the designation of areas for those 
standards, we have not identified any regulations that would expire or 
would no longer be effective for purposes of the 2008 ozone NAAQS. In 
short, EPA sees nothing in the SIP that indicates that the State does 
not have the ability to implement and enforce the 2008 ozone NAAQS. 
Although we do not believe that the failure of Regulation 1103 to 
specifically reference the 2008 ozone NAAQS renders the infrastructure 
SIP unapprovable, EPA notes that the State recently revised Regulation 
1103 to expressly include that standard and submitted that regulation 
to EPA as a SIP revision dated February 17, 2014. EPA plans to act on 
that SIP submission shortly.
    Comment 9: Sierra Club contends that EPA should not approve 
Delaware's 2008 eight-hour ozone infrastructure SIP revision until EPA 
and Delaware clarify what was intended by citing to two provisions of 
Delaware regulations in EPA's TSD for the NPR. First, Sierra Club 
comments that EPA cited to 7 DE Admin. Code 1137 to satisfy section 
110(a)(2)(F) of the CAA. The commenter states it could not find 7 DE 
Admin. Code 1137 in the Delaware General Assembly: Delaware 
Regulations: Administrative Code: Title 7: 1000: 1100. Second, the 
commenter mentions that EPA cited in its TSD to 7 Del. C. Chapter 29 in 
discussing the requirements of section 110(a)(2)(J) of the CAA relating 
to public notification and states 7 Del. C. Chapter 29 is not relevant 
to the 2008 ozone NAAQS.
    Response 9: EPA agrees with the commenter regarding the incorrect 
reference to these two provisions; however, EPA disagrees with the 
commenter that EPA cannot approve the Delaware infrastructure SIP 
submittal for 2008 ozone NAAQS. After reviewing Delaware's March 27, 
2013 infrastructure SIP submittal and EPA's TSD reviewing that SIP 
submittal, EPA acknowledges that Delaware inadvertently included a 
citation to Delaware Regulation 1137 in its March 27, 2013 SIP 
submittal listing provisions meeting requirements in section 
110(a)(2)(F) of the CAA, and EPA inadvertently also refers to Delaware 
Regulation 1137 when discussing in the TSD how Delaware met the 
requirements of section 110(a)(2)(F) of

[[Page 18653]]

the CAA. Sierra Club correctly identified that there is no Delaware 
Regulation 1137. However, EPA believes this was merely a typographical 
mistake within a list of applicable regulations which do address 
Delaware's programs for monitoring and reporting in both Delaware's SIP 
submittal and in EPA's TSD. As mentioned in the TSD, Delaware has 
numerous regulations within its program and SIP for requiring 
installation and maintenance of monitoring equipment and periodic 
emissions reporting including 7 DE Admin. Codes 1112, 1123, 1124, 1126, 
1131, 1139, 1140, 1141, 1142, and others in the approved Delaware SIP, 
which is identified at 40 CFR 52.420(c). EPA maintains these provisions 
appropriately support Delaware's ozone infrastructure SIP for section 
110(a)(2)(F) for adequate provisions for monitoring and reporting. 
EPA's and Delaware's inadvertent inclusion of the reference to 
Regulation 1137 was merely a typographical mistake and immaterial to 
EPA's conclusion regarding approvability of the Delaware SIP 
submission.
    Regarding Sierra Club's second comment, EPA acknowledges it 
inadvertently refers to 7 Del. C. Chapter 29 as an additional provision 
which satisfies section 110(a)(2)(J)'s requirements relating to public 
notification. EPA believes the remaining Delaware provision discussed 
in EPA's TSD for section 110(a)(2)(J) requirements related to public 
notice, 7 Del. C. Chapter 60, adequately supports that Delaware has met 
the requirements of section 110(a)(2)(J) of the CAA. 7 Del. C. Chapter 
60 requires SIP revisions and new or amended regulations to undergo 
public notice and hearing, publication in newspapers and in the 
Delaware Register, and opportunity for comment by the public and local 
political subdivisions. Therefore, EPA believes it appropriately 
proposed that Delaware's March 27, 2013 infrastructure SIP submittal 
for the 2008 ozone NAAQS meets all requirements of section 110(a)(2)(F) 
and 110(a)(2)(J) of the CAA. EPA's inadvertent mention of 7 Del. C. 
Chapter 29 is immaterial to EPA's conclusion regarding approvability of 
the Delaware SIP submission.

IV. Final Action

    EPA is approving Delaware's submittal which provides the basic 
program elements specified in sections 110(a)(2)(A), (B), (C), 
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the 
CAA, necessary to implement, maintain, and enforce the 2008 ozone 
NAAQS, as a revision to the Delaware SIP. This rulemaking action does 
not include approval of Delaware's submittal for section 110(a)(2)(I) 
of the CAA which pertains to the nonattainment requirements of part D, 
Title I of the CAA, since this element is not required to be submitted 
by the 3-year submission deadline of section 110(a)(1) of the CAA and 
will be addressed in a separate process. This rulemaking action also 
does not include approval of the portion of Delaware's submittal 
relating to section 110(a)(2)(D)(i)(I) which will be addressed in a 
separate rulemaking action.

V. 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 June 2, 2014. 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 elements for the 2008 ozone 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, Ozone, Reporting and recordkeeping requirements.


[[Page 18654]]


    Dated: March 21, 2014.
W.C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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 an 
entry for Section 110(a)(2) Infrastructure Requirements for the 2008 
Ozone NAAQS at the end of the table to read as follows:


Sec.  52.420  Identification of plan.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          State
 Name of non-regulatory SIP revision     Applicable geographic area     submittal         EPA approval date               Additional explanation
                                                                          date
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Section 110(a)(2) Infrastructure       Statewide....................       3/27/13  4/3/14 [Insert Federal        This action addresses the following
 Requirements for the 2008 Ozone                                                     Register page number where    CAA elements: 110(a)(2)(A), (B), (C),
 NAAQS.                                                                              the document begins and       (D)(i)(II), (D)(ii), (E), (F), (G),
                                                                                     date].                        (H), (J), (K), (L), and (M).
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 2014-07459 Filed 4-2-14; 8:45 am]
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