[Federal Register Volume 81, Number 203 (Thursday, October 20, 2016)]
[Rules and Regulations]
[Pages 72529-72537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24657]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0816; FRL-9953-90-Region 3]


Delaware; Disapproval of Air Quality Implementation Plan for 
Nonattainment New Source Review; Emissions Offset Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is disapproving a 
State Implementation Plan (SIP) revision submitted by the Delaware 
Department of Natural Resources and Environmental Control (DNREC) for 
the State of Delaware on October 15, 2013. EPA is disapproving this 
action because the submittal does not satisfy the requirements of the 
Clean Air Act (CAA) or the federal implementing regulations, which 
establish the criteria under which the owner or operator of a new or 
modified major stationary source must obtain the required emission 
offsets from the same source or other sources in the same nonattainment 
area with limited exceptions under Delaware's nonattainment new source 
review (NSR) preconstruction permitting program. In addition, EPA is 
finalizing disapproval of the SIP revision because Delaware exercises 
authorities that are reserved for EPA under section 107 of the CAA. EPA 
is disapproving this revision to DNREC's SIP in accordance with the 
requirements of the CAA.

DATES: This final rule is effective on November 21, 2016.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2013-0816. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some

[[Page 72530]]

information is not publicly available, e.g., 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 through 
http://www.regulations.gov, or please contact the person identified in 
the ``For Further Information Contact'' section for additional 
availability information.

FOR FURTHER INFORMATION CONTACT: Amy Johansen, (215) 814-2156, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On May 26, 2015 (80 FR 30015), EPA published a notice of proposed 
rulemaking (NPR) for the State of Delaware. At the request of a 
commenter, EPA published a notice reopening the comment period for the 
NPR on July 15, 2015 (80 FR 41449), which allowed the public to comment 
on the May 26, 2015 NPR until August 14, 2015. In the NPR, EPA proposed 
disapproval of DNREC's SIP revision because the submittal does not 
satisfy the requirements of CAA sections 172(c)(5) and 173(c)(1) or the 
federal implementing regulations in 40 CFR 51.165 and in 40 CFR part 
51, appendix S,\1\ which establish the criteria under which the owner 
or operator of a new or modified major stationary source must obtain 
the required emission offsets ``from the same source or other sources 
in the same nonattainment area'' with limited exceptions, for 
Delaware's nonattainment NSR preconstruction permitting program. In 
addition, EPA proposed disapproval of the SIP revision because Delaware 
exercises authorities that are reserved for EPA under section 107 of 
the CAA. The formal SIP revision was submitted by Delaware on October 
15, 2013.
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    \1\ 40 CFR 51.165(a)(3)(ii)(F) requires that ``[p]rocedures 
relating to the permissible location of offsetting emissions shall 
be followed which are at least as stringent as those set out in 40 
CFR part 51 appendix S section IV.D.''
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II. Summary of SIP Revision

    The SIP revision consists of changes to 7 DE Admin. Code 1125 
(herein referred to as 7 DNREC 1125 or Regulation 1125), Requirements 
for Preconstruction Review, sections 2.5.5 and 2.5.6, Emission Offset 
Provisions. First, Delaware's revised regulation enables sources in 
Delaware seeking NSR permits to obtain emission offsets from sources 
located in other areas, including areas outside of the State of 
Delaware, irrespective of the areas' nonattainment status as compared 
to Delaware's nonattainment status for the same national ambient air 
quality standard (NAAQS). Second, the revised regulation also permits 
sources seeking NSR permits in Delaware to obtain emissions offsets 
from areas without a determination that the other areas ``contribute to 
a violation'' of the NAAQS in Delaware where a source seeking a NSR 
permit would be located, as required in CAA section 173 and its 
implementing regulations. The language in section 2.5.6 in 7 DNREC 1125 
provides that sources can obtain emission offsets ``in the 
nonattainment area which the source is located which shall specifically 
include any area in the States of Connecticut, Delaware, Illinois, 
Indiana, Kentucky, Maryland, Michigan, Missouri, New Jersey, New York, 
North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia 
and Wisconsin.''
    Finally, the revised regulation language allows ``the Department'' 
to determine the areas in which owners or operators can acquire 
emission offsets, regardless of the attainment status of those areas. 
Specifically, Delaware proposed language for the SIP that ``the 
Department may consider any area in the following states as having the 
same nonattainment classification as the area of Delaware where the 
offsets are used: Connecticut, Delaware, Illinois, Indiana, Kentucky, 
Maryland, Michigan, Missouri, New Jersey, New York, North Carolina, 
Ohio, Pennsylvania, Tennessee, Virginia, West Virginia and Wisconsin.''
    Other specific requirements of 7 DNREC 1125, Requirements for 
Preconstruction Review, sections 2.5.5 and 2.5.6, Emission Offset 
Provisions and the rationale for EPA's disapproval are explained in the 
NPR and will not be restated here. See 80 FR 30015 (May 26, 2015). EPA 
received three sets of comments on the NPR. A summary of the comments 
and EPA's responses are provided in Section III of this document.

III. Public Comments and EPA Responses

    During the reopened public comment period for the May 26, 2015 
proposed rule, EPA received three sets of comments, which are 
summarized and addressed here. The comments were submitted by DNREC 
(herein referred to as Delaware), the New Jersey Department of 
Environmental Protection (herein referred to as New Jersey), and the 
Delaware State Chamber of Commerce (DSCC).
    Comment 1: Generally, Delaware and New Jersey noted that unhealthy 
levels of ground-level ozone continue to impact their states years 
after the passage of the CAA and after they have implemented several 
rounds of voluntary and required emissions reduction strategies. The 
States allege ground-level ozone and precursor emissions are pervasive 
and readily transported. Delaware and New Jersey stated that they 
cannot attain the 75 parts per billion (ppb) ozone NAAQS due to 
emissions from other states' pollution and not their own, as they have 
done all they can to control large and small sources throughout their 
States.
    Response 1: EPA appreciates Delaware's and New Jersey's interest in 
addressing interstate transport of ozone pollution and other air 
quality concerns through implementation of the CAA requirements. While 
it is not relevant to the approvability of Delaware's revisions to 7 
DNREC 1125, sections 2.5.5 and 2.5.6, EPA recognizes both Delaware and 
New Jersey have implemented various regulations to address the ozone 
NAAQS in their respective States. Delaware's and New Jersey's 
commitment, as well as other states' commitments, has had a beneficial 
impact on the air quality in areas designated nonattainment for the 
2008 ozone NAAQS including the Philadelphia-Wilmington-Atlantic City 
Area, the PA-NJ-MD-DE Area (Philadelphia Area) and the Seaford, DE 
Area, for example. Currently, the Philadelphia Area is meeting the 2008 
ozone NAAQS of 75 ppb with preliminary 2013-2015 air quality monitoring 
(AQM) data showing a design value of 75 ppb.\2\ Additionally, on May 4, 
2016, EPA made a final determination that the Seaford, DE marginal 
nonattainment area attained the 2008 ozone NAAQS by the applicable 
attainment date of July 20, 2015, with a design value of 74 ppb, 
pursuant to section 181(b)(2)(A) of the CAA and 40 CFR 51.1103. See 81 
FR 26701.
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    \2\ The 2008 ozone NAAQS is an 8-hour ozone standard that was 
set at 75 ppb. See 73 FR 16436 (March 27, 2008).
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    Comment 2: Delaware discussed efforts they have made to ``prod 
EPA'' into addressing interstate transport through a petition under CAA 
section 126 and a joint state petition asking EPA to enlarge the Ozone 
Transport Region (OTR) under CAA section 176A. Delaware stated that EPA 
has failed to respond to those petitions despite statutory deadlines.

[[Page 72531]]

    Response 2: EPA acknowledges that Delaware previously submitted a 
CAA section 126 petition seeking emissions reductions from large 
electric generating units in a number of upwind states in order to 
reduce the contributions from their emissions to fine particulate 
matter (PM2.5) and ozone problems in Delaware. Additionally, 
EPA acknowledges that a number of states, including Delaware, submitted 
a petition under CAA section 176A requesting that the EPA add 
additional states to the OTR that was established under section 184 of 
the CAA. EPA is reviewing the petitions separately and is not acting on 
those petitions in this action. Delaware's comments are not germane to 
EPA's disapproval of the Delaware October 15, 2013 SIP revision and as 
such no further response is provided.
    Comment 3: Generally, Delaware and New Jersey noted their extensive 
efforts to regulate sources in their respective states in order to 
attain the NAAQS. As a result, commenters expressed concerns about 
economic burdens imposed on their citizens, business, and industry 
locating in both Delaware and New Jersey. More specifically, Delaware 
asserted that it is more expensive for industry to locate in its State 
versus nearby locations which EPA has classified as ``attainment/
unclassifiable'' despite evidence showing that those areas cause and 
contribute to Delaware's nonattainment status. The DSCC also noted it 
will become more expensive for new industry to locate within or to 
expand within Delaware compared to locating or expanding business in 
other areas that are attainment/unclassifiable especially as Delaware 
is small and its sources are well controlled.
    Response 3: EPA appreciates the commenters' continued efforts to 
regulate sources in their States to meet NAAQS, as well as their 
concerns with respect to economic burdens on citizens, business, and 
industry; however, this comment is not germane to EPA's current action 
disapproving Delaware's October 15, 2013 SIP revision. EPA evaluated 
Delaware's October 15, 2013 SIP revision submittal in accordance with 
requirements for NSR permitting programs in CAA sections 172 and 173 
and in 40 CFR 51.165 and found the SIP revision submittal did not meet 
those requirements as discussed in the NPR. EPA notes that the NAAQS 
for each criteria air pollutant are established to provide protection 
for the nation's public health and the environment. Additionally, EPA's 
NSR program was specifically designed to allow for responsible economic 
growth while at the same time allowing states to achieve and maintain 
the NAAQS. As the comments are not germane to the reasons for EPA's 
disapproval of this SIP, no further response is provided.
    Comment 4: Delaware discussed design values at some Delaware air 
quality monitors and stated that based in part upon EPA data, a large 
group of upwind states create the pollution that is causing Delaware's 
nonattainment and that those states should reduce their emissions in 
order for Delaware to attain and maintain the NAAQS.
    Response 4: As noted in a previous response to comment, Delaware 
currently has areas attaining the 2008 ozone NAAQS, which would 
indicate that emissions reductions have occurred and have had a 
beneficial impact on Delaware's air quality.\3\ Nonetheless, EPA 
readily acknowledges the role interstate transport of precursors to 
ozone pollution plays in the efforts of downwind areas to attain and 
maintain the NAAQS. To that end, EPA has taken a number of steps to 
ensure implementation of CAA section 110(a)(2)(D), or the ``good 
neighbor'' provision, which addresses interstate pollution, including 
the NOX (oxides of nitrogen) SIP Call, the Clean Air 
Interstate Rule (CAIR), and the Cross-State Air Pollution Rule (CSAPR). 
Most recently, EPA promulgated an update to CSAPR specifically to 
address interstate pollution with respect to the 2008 ozone NAAQS with 
tightened NOX budgets designed to achieve emission 
reductions in upwind states before the moderate area attainment date of 
July 2018. See Cross-State Air Pollution Rule Update for the 2008 Ozone 
NAAQS, Final Rule, (signed September 7, 2016, publication pending); \4\ 
Proposed Rule, 80 FR 46271 (August 8, 2015); and Notice of Data 
Availability (NODA), 80 FR 75706 (December 3, 2015). As noted above, 
however, comments regarding the interstate transport obligations of 
other states are not germane to EPA's current action disapproving 
Delaware's October 15, 2013 SIP revision.
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    \3\ Currently, the Philadelphia Area (which includes portions of 
Delaware) is meeting the 2008 ozone NAAQS of 75 ppb with preliminary 
2013-2015 AQM data showing a design value of 75 ppb. Additionally, 
on May 4, 2016, EPA made a final determination that the Seaford, DE 
Marginal nonattainment area attained the 2008 ozone NAAQS by the 
applicable attainment date of July 20, 2105 with a design value of 
74 ppb. 81 FR 26701.
    \4\ Available at https://www3.epa.gov/airmarkets/CSAPRU/Cross-State%20Air%20Pollution%20Rule%20Update%20for%20the%202008%20Ozone%20NAAQS%202060%20AS05%20FRM.pdf.
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    Comment 5: Delaware noted that EPA went against the State's 
designation recommendations and adopted smaller 2008 ozone 
nonattainment areas that include parts of Delaware but not certain 
upwind states, which triggered various provisions of the CAA in part D 
of title I, including the applicability of nonattainment NSR 
permitting, in each of the three counties in Delaware.
    Response 5: As noted in our May 26, 2015 NPR, pursuant to section 
107 of the CAA, New Castle and Sussex Counties, Delaware were 
designated by EPA for the 2008 ozone NAAQS as ``marginal'' 
nonattainment under 40 CFR part 81, while Kent County was designated as 
``unclassifiable/attainment.'' See 77 FR 30088 (May 21, 2012). New 
Castle County is a portion of the Philadelphia Area for the 2008 ozone 
NAAQS. Upon designation, a nonattainment area for ozone is required to 
meet the plan submission requirements under section 182 of the CAA (in 
subpart 2 of part D of title I of the CAA) for its nonattainment area 
classification (marginal, moderate, serious, severe, or extreme) as 
well as the general SIP planning requirements in sections 172 and 173 
of subpart 1 of part D of title I. The State of Delaware is also part 
of the OTR, as established in CAA section 184(a). Therefore, at a 
minimum, the entire State of Delaware is required to meet the plan 
submission requirements for a moderate nonattainment area 
classification as specified in CAA sections 182(b) and 184(b), 
regardless of the attainment classification for areas in the State. 
Moderate area classification plan requirements include the emissions 
offset provisions within section 173 of the CAA and within its 
implementing regulations. Delaware's comment regarding the size of the 
nonattainment area is irrelevant to whether Delaware's regulations for 
NSR emissions offsets meet CAA requirements. The time for Delaware to 
challenge EPA's ozone designations for the 2008 ozone NAAQS has passed. 
As explained in the NPR, Delaware's revisions to 7 DNREC 1125, sections 
2.5.5 and 2.5.6 on their face do not meet CAA requirements, and, thus, 
no further response is provided.
    Comment 6: Delaware asserted that EPA did not consider its October 
15, 2013 SIP revision submittal because EPA did not refer to any of it 
in the proposed disapproval. Delaware also stated its arguments in the 
comments were largely repeating information presented in the October 
15, 2013 SIP submittal. Delaware stated NSR was its only tool to 
achieve further reductions of ozone within the state as Delaware has no 
ability to regulate sources in other states.

[[Page 72532]]

    Response 6: EPA does not agree with Delaware's characterization 
that EPA did not consider or evaluate the October 15, 2013 SIP revision 
submittal before publishing a NPR proposing disapproval of revisions to 
7 DNREC 1125, Requirements for Preconstruction Review, sections 2.5.5 
and 2.5.6, Emission Offset Provisions. While EPA did not cite to 
specific language or provisions within the October 15, 2013 SIP 
submission in the May 26, 2015 NPR, nothing in the CAA nor its 
implementing regulations requires EPA to cite to the SIP submittal when 
acting to approve or disapprove pursuant to section 110 of the CAA. See 
80 FR 30015. EPA reviewed and evaluated all information submitted by 
Delaware to EPA in the October 15, 2013 SIP submittal and compared that 
information and the regulations to the requirements of the CAA and its 
implementing regulations. As discussed in the NPR, EPA found that 7 
DNREC 1125, sections 2.5.5 and 2.5.6 do not meet the clear requirements 
of CAA sections 172(c)(5) and 173(c)(1) nor the federal implementing 
regulations in 40 CFR 51.165 and part 51, appendix S, section IV.D for 
offsets to come from areas with the same or higher attainment 
classifications and from areas that contribute to nonattainment in the 
area in which a source is locating.\5\ Additionally, as noted in the 
NPR, EPA proposed to disapprove the Delaware SIP revision because 
Delaware's regulations attempt to exercise authorities that are 
reserved solely for EPA in CAA section 107 by treating certain upwind 
areas as ozone nonattainment areas regardless of EPA's classification 
of those areas for attainment of the ozone NAAQS. EPA is required to 
fully consider a SIP revision submittal upon making a decision to 
approve or disapprove a SIP submittal revision. Here, EPA considered 
Delaware's submission but found the regulations clearly inconsistent 
with CAA requirements in part D of title I of the CAA for offset 
provisions. Regarding Delaware's comment about needing NSR to reach 
attainment, the CAA provides many tools to assist states with attaining 
and maintaining the NAAQS. EPA appreciates Delaware's in-state 
implementation efforts, and EPA will continue to work with other states 
to address interstate transport of emissions through SIPs and other 
federal programs.
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    \5\ 40 CFR 51.165(a)(3)(ii)(F) requires that ``[p]rocedures 
relating to the permissible location of offsetting emissions shall 
be followed which are at least as stringent as those set out in 40 
CFR part 51 appendix S section IV.D.''
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    Comment 7: Delaware asserted that EPA erroneously concluded that 
Delaware's revised regulation does not comply with the requirements in 
CAA sections 172(c)(5) and 173(c)(1) and the implementing regulations 
in 40 CFR 51.165 and part 51, appendix S. Delaware stated that CAA 
section 116 allows states to adopt rules that are not exactly the same 
as the federal regulations, as long as they are not less stringent. 
Delaware argues its regulations in 7 DNREC 1125, sections 2.5.5 and 
2.5.6 are more stringent than EPA's requirements in CAA 172 and 173 and 
in the implementing regulations based on emission reductions, 
environmental outcomes, and environmentally beneficial economic growth. 
Delaware further asserted the actual application of its regulations for 
offsets results in greater reductions of criteria pollution than would 
be the case if EPA's rules were applied.
    In agreement with Delaware's stringency assertions, New Jersey 
stated that EPA has no published guidance on procedures for 
demonstrating that state-specific provisions are at least as stringent 
as federal provisions. New Jersey asserts that a demonstration that the 
implementation of state provisions results in air quality benefit over 
a federal provision that is designed to ensure new source emissions are 
controlled, that more offsetting emissions reductions will be obtained, 
and that there will be more progress towards achievement of the NAAQS 
is a reasonable basis to conclude that the state provision is at least 
as stringent as the federal provisions.
    Response 7: EPA disagrees that Delaware has established regulations 
in 7 DNREC 1125, sections 2.5.5 and 2.5.6 that are more stringent than 
the federal requirements for offsets in CAA section 173 and 40 CFR 
51.165 based on the alleged greater emission reductions potential 
offered by Delaware's revisions. While EPA may not have specific 
guidance on procedures for demonstrating that state-specific provisions 
are at least as stringent as federal provisions, neither Delaware nor 
New Jersey provided a compelling argument as to why the changes in 
Delaware's emission offset provisions are more beneficial to air 
quality and more stringent. In summary, Delaware provided an example 
from applying the current federally required (SIP) offset requirements 
of a theoretical source which could locate in Delaware, where lowest 
achievable emission rate (LAER) applies, which would need to acquire 
emission offsets from local emitters at a high cost because offsets are 
scarce. Delaware posits that such a source might thus choose to locate 
instead in an attainment area in another state, which would 
presumptively not otherwise require LAER (and presumptively not require 
similar emission reductions as Delaware does) to avoid buying offsets 
and would then potentially contribute its emissions to Delaware's 
nonattainment. Under that scenario, Delaware foresees higher emission 
of ozone precursors to impact the State. Delaware claimed that under 
its revised regulation (7 DNREC 1125, sections 2.5.5 and 2.5.6)) such a 
source could still locate in Delaware, apply LAER resulting in lower 
emissions, and could obtain emission offsets from West Virginia at a 
much lower cost because emission offsets are more affordable per ton in 
some upwind states and Delaware asserts that EPA's 1997 ozone NAAQS 
modeling demonstrates that West Virginia emissions contribute to 
Delaware's nonattainment. Delaware relies on this example to support 
its argument that its revised regulation for offsets could produce 
greater reduction in ozone precursors and correspondingly be more 
stringent than federal requirements (because such a hypothetical source 
would apply LAER as well as buying offsets if locating in Delaware with 
this revised regulation versus locating outside Delaware and neither 
installing LAER nor purchasing offsets if federal rules for offsets 
were applied). While EPA acknowledges that Delaware's hypothetical 
example could plausibly result in the emissions reductions Delaware 
claims, Delaware has not provided any evidence, argument, or facts to 
support the contention that its revised regulation 7 DNREC 1125, as 
presently written, would consistently result in greater reductions 
impacting Delaware. It is equally plausible such sources could locate 
in Delaware and purchase offsets within Delaware providing greater 
reductions reducing ozone within Delaware as Delaware sources do impact 
the State most directly. See 80 FR 46271 (EPA's NODA). Delaware has not 
provided any evidence that its expanded offset program would always 
yield greater ozone reduction within the State versus reductions 
achieved from applying the federal offset requirements. While emissions 
reductions from offsets obtained from upwind sources pursuant to 
Delaware's revised regulation 7 DNREC 1125 may be equivalent in raw 
tons to offsets obtained within Delaware, Delaware provided no evidence 
that emission reductions from an upwind state would provide greater 
ozone reducing benefits within Delaware especially if offsets are

[[Page 72533]]

obtained from upwind states a great distance from Delaware such as 
Wisconsin (a state included within the revised regulation).
    EPA is required by CAA section 110(k) and (l) to evaluate proposed 
SIP revisions for compliance with the CAA and its implementing 
regulations. While states may adopt regulations that differ from 
federal requirements as long as they are as stringent per CAA section 
116, Delaware made no such demonstration that its regulations are as 
stringent as EPA's requirements nor provide any greater ozone reducing 
benefit. In addition, Delaware's regulations at 7 DNREC 1125, sections 
2.5.5 and 2.5.6 do not meet and are not equivalent to federal 
requirements for offsets. As discussed in detail in the NPR, Delaware's 
submittal does not on its face comport with the requirements of CAA 
sections 172(c)(5) and 173(c)(1) and the implementing regulations in 40 
CFR 51.165 and part 51, appendix S. Delaware's regulations allow the 
acquisition of offsets from areas that may not be of the same or higher 
nonattainment status and may not be from areas found to contribute to a 
violation of the 2008 ozone NAAQS in Delaware.
    Comment 8: Delaware stated its regulations allow the State to 
determine that offsets can be acquired in areas that EPA has previously 
determined significantly contribute to Delaware's nonattainment in 
modeling for CSAPR for the 1997 ozone standard, thus allowing 
economically-beneficial growth and additional reductions to out-of-
state impacts on Delaware's air quality. Delaware asserted EPA's 
regulations for offsets deter environmentally beneficial economic 
growth in Delaware and result in more emissions impacts on Delaware.
    Response 8: As stated previously in response to a prior comment, 
EPA's NSR program was designed to allow for responsible economic growth 
while at the same time allowing states to achieve and maintain the 
NAAQS. As stated in the NPR, Delaware's October 15, 2013 SIP revision 
seeks to expand the geographical area in which owners and operators of 
new or modified major stationary sources may obtain emissions offsets, 
regardless of the area's attainment classification for the ozone NAAQS 
and without specific requirements that the area ``contribute to 
violation'' of the ozone NAAQS in the area in which a new or modified 
source is locating or located. The contribution data calculated to 
support the promulgation of CSAPR evaluated whether emissions from an 
entire state, and from all source categories, would contribute to 
projected nonattainment in downwind states, but the air quality 
modeling did not separately evaluate contribution from nonattainment 
areas in upwind states to downwind air quality problems. Thus, 
regardless of the levels of contribution calculated from other states 
to air quality in Delaware, the State's regulations do not satisfy the 
minimum statutory criteria for demonstrating that emissions offsets (1) 
are obtained from another nonattainment area of equal or higher 
classification than the area in which the source is located, and (2) 
that emissions from such other nonattainment area contribute to a 
violation of the NAAQS in the nonattainment area where the new or 
modified source is locating or located. Moreover, contrary to 
Delaware's assertions, its regulations allow acquisition of offsets 
from more states than just states that Delaware contends contribute to 
ozone nonattainment in Delaware for the 1997 or 2008 ozone NAAQS based 
on modeling conducted to support CSAPR. Even if some of the states 
Delaware identified as contributing to its nonattainment for prior 
ozone NAAQS, Delaware's regulations allow acquisition of offsets from 
those states without requiring that the areas in which offsets may be 
attained in those states to have the same or higher attainment 
classification. In addition, the CSAPR modeling Delaware cites in its 
comments was conducted in 2011 and does not consider subsequent changes 
in emissions or contributions from sources in upwind states. As the 
modeling is not based on current emissions or contribution levels from 
other states, it cannot be used to meet the requirement for showing 
contribution to nonattainment in Delaware at the time a source would be 
seeking offsets for a NSR permit required under 7 DNREC 1125. EPA is 
disapproving this SIP revision for two reasons: (1) Delaware's 
emissions offset provision language does not comport with the specific 
requirements under CAA sections 172(c)(5) and 173(c)(1) or the federal 
implementing regulations in 40 CFR 51.165 and appendix S; and, (2) 
Delaware lacks legal authority to designate an area as nonattainment 
under CAA section 107(c) and (d). As stated previously, the economic 
impacts are not relevant to whether Delaware's regulations meet CAA 
requirements, and, thus, EPA provides no further response to that 
issue.
    Comment 9: Delaware asserted that EPA incorrectly concluded that 
Delaware's SIP revision submittal did not include any information 
supporting Delaware's determination that emissions in the area 
specified in the regulation ``contribute to a violation'' for the 2008 
ozone NAAQS. CAA section 173(c)(1) requires that all emissions offsets 
must come from an area which contributes to a violation of the NAAQS 
where the source seeking a permit is located. Delaware pointed to EPA 
modeling that supported the CSAPR for the 1997 ozone NAAQS of 80 ppb 
and in its evaluation asserted that there are minimal differences 
between the 1997 and 2008 ozone NAAQS modeling. Delaware claimed it 
evaluated EPA's 1997 modeling based on a threshold of 0.75 ppb, which 
is 1 percent of the 2008 ozone NAAQS. The State notes that the level of 
the ozone NAAQS standards have no bearing on the actual location of 
emissions and the movement of the air, concluding that the 1997 
modeling is pertinent and reliable.
    Response 9: EPA disagrees with Delaware's hybrid use of EPA's CSAPR 
modeling conducted to evaluate interstate transport for the 1997 ozone 
NAAQS to support its revised rule language in 7 DNREC 1125 sections 
2.5.5 and 2.5.6. As discussed earlier, the CSAPR modeling for 
evaluating interstate transport with respect to the 1997 standard does 
not consider present-day, current emission levels or contributions from 
sources throughout the country. Moreover, the CSAPR modeling was also 
not completed for a source-specific situation where, among other 
things, a source needs to show that the particular emission offsets it 
is obtaining contribute to a violation of the NAAQS in the 
nonattainment area where the major new or modified source is currently 
seeking to locate. Thus, Delaware cannot rely on this older modeling 
which used emissions data prior to 2011 to support a ``contribution'' 
argument for a source seeking to use offsets for a NSR permit in the 
future. Finally, even if the CSAPR modeling data was a relevant metric 
by which to evaluate contribution for purposes of obtaining offsets, as 
noted above, the Delaware regulations do not constrain sources to only 
acquiring offsets from those states identified as impacting Delaware in 
the modeling analysis or otherwise comply with the statutory 
requirement that such offsets be obtained from an area with the same or 
higher attainment classification.
    Accordingly, Delaware's reliance on EPA's CSAPR modeling is 
insufficient to support approval of its offset regulations, as the 
State does not take into account the complexities that a full modeling 
analysis requires to make the demonstration required by the statute; 
does not consider present day emissions

[[Page 72534]]

and contributions from states where a potential new source may seek 
offsets; and, does not meet the CAA requirements for an owner or 
operator of a source requiring emission offsets as discussed in the NPR 
and previous response to comments.
    Comment 10: Delaware believes EPA erroneously concluded that 
Delaware is trying to exercise authorities reserved for EPA under CAA 
section 107(c) and (d) by treating certain areas as ozone nonattainment 
areas regardless of EPA's classification of those states for attainment 
of the ozone NAAQS and is therefore disapproving the SIP revision 
because it's not in accordance with provisions of the CAA. Delaware 
asserted that EPA misinterpreted its actions because CAA section 107(c) 
and (d) are provisions in which EPA designates an area as nonattainment 
(in doing so imposing substantive nonattainment requirements on that 
area) and Delaware's revisions to its offset regulation do not impose 
any such planning requirements on any other state. According to 
Delaware, its regulations only identify ``other areas as areas where 
Delaware sources can obtain emissions offsets, and which is the area 
that Delaware demonstrated is more stringent than the minimum area 
defined in the underlying federal requirements.''
    Response 10: As noted in the NPR, EPA disagrees with Delaware's 
attempt to treat entire states as an area of equal or higher 
nonattainment classification for the ozone NAAQS, regardless of their 
designation by EPA under CAA section 107, in an effort to allow sources 
to obtain emission offsets from those states. Delaware's SIP revision 
submittal of 7 DNREC 1125 sections 2.5.5 and 2.5.6 does not meet the 
requirements in CAA section 173(c), 40 CFR 51.165(a)(3)(ii)(F) and 
appendix S, section IV.D.1, because the identified sections allow 
emissions offsets to be used from areas not designated by EPA pursuant 
to CAA section 107 as an area of equal or higher nonattainment 
classification for any ozone NAAQS and do not address contribution 
requirements in the CAA and its implementing regulations. In an attempt 
to broaden where sources can obtain emissions offsets, Delaware 
essentially created a large multi-state area in which sources locating 
in Delaware can automatically obtain emission offsets, without fully 
evaluating the impacts on air quality. This action circumvents the 
basic requirements of CAA section 173(c), 40 CFR 51.165(a)(3)(ii)(F) 
and appendix S, section IV.D.1. The use of emissions offsets under a 
state's NSR permit program should be evaluated on a case-by-case basis 
whereby the major new or modified source ensures that offsets obtained 
from one source, in a nonattainment area of equal or higher 
nonattainment classification, are actually contributing to a violation 
of the NAAQS in the nonattainment area where the major new or modified 
source is locating. Delaware's attempts to treat more states as 
nonattainment areas equal to Delaware's attainment classifications 
regardless of how EPA has designated these other states is not in 
accordance with the requirements of the CAA and the federal 
implementing regulations, as EPA stated previously. Delaware cannot 
avoid this improper exercise of designation authority under CAA 107 
merely by saying its regulation treating areas as nonattainment does 
not impose SIP planning obligations on these other states. Thus, EPA 
disagrees with Delaware's argument it did not usurp authority under CAA 
107 because Delaware's regulation attempts to exercise authorities that 
are reserved solely for EPA in CAA section 107 by treating certain 
upwind areas as ozone ``nonattainment areas'' to meet the requirement 
of ``equal or higher nonattainment classification'' for emission offset 
purposes regardless of EPA's classification of those areas for 
attainment of the ozone NAAQS.
    Comment 11: Delaware asserted that the state areas specified in its 
revised regulation (7 DNREC 1125) are the primary cause of its ozone 
problem and there is no substantive difference between the areas 
indicated by Delaware and the areas EPA has designated as marginal 
nonattainment for ozone as those areas still contribute to Delaware's 
ozone issues. As an example, Delaware stated that EPA designated Queen 
Anne's County, Maryland, as ``attainment/unclassifiable'' rather than 
``moderate nonattainment'' even though reductions in ozone precursors 
in that area would assist Delaware with attaining the NAAQS, because 
the area is directly upwind of Sussex County, Delaware. Delaware also 
stated that the only purpose of emission offsets is to reduce pollution 
that impacts the nonattainment area and that there is no practical 
reason not to accept reductions in these areas that directly impact and 
cause Delaware's nonattainment problem with ozone.
    Response 11: EPA appreciates Delaware's interest in regulating 
sources in other states in order to meet the ozone NAAQS, so long as it 
is done in accordance with the CAA; however, this comment is not 
relevant to EPA's current action disapproving Delaware's October 15, 
2013 SIP revision. CAA section 173(c) specifies offset requirements for 
owners and operators of new or modified major stationary sources. 
Specifically, section 173(c)(1) requires that: ``the owner or operator 
of a new or modified major source may comply with any offset 
requirement in effect under this part for increased emissions of any 
air pollutant only by obtaining emission reductions of such air 
pollutant from the same source or other sources in the same 
nonattainment area, except that the State may allow the owner or 
operator of a source to obtain such emission reductions in another 
nonattainment area if (A) the other area has an equal or higher 
nonattainment classification than the area in which the source is 
located and (B) emissions from such other area contribute to a 
violation of the national ambient air quality standard in the 
nonattainment area in which the source is located (emphasis added).''
    The CAA clearly establishes two separate criteria to permit a 
source to obtain offsets in ``another nonattainment area.'' Delaware's 
example of Queen Anne's County, Maryland, is inconsistent with the CAA 
as the County is not even ``another nonattainment area'', much less a 
nonattainment area that ``has an equal or higher nonattainment 
classification than the area in which the source is located.'' Delaware 
and other states can allow owners and operators to obtain emissions 
offsets from any other nonattainment area, so long as the applicable 
CAA requirements are met. Delaware cannot authorize owners and 
operators of a source in the State to obtain emission offsets from any 
area where Delaware decides it would attain some emissions reduction 
benefit as it is in direct conflict with the clear requirements in the 
CAA.
    Comment 12: Delaware questioned EPA's legal rationale that a 
disapproval of Delaware's SIP submission would not trigger a federal 
implementation plan (FIP) obligation. Delaware amended its Regulation 
1125, effective September 11, 2013, by replacing Regulation 1125 
section 2.5.5 and adding a sentence to section 2.5.6 to effectuate the 
modification to the offset provision. As the prior regulation which EPA 
had approved for the SIP is no longer in place, Delaware stated it did 
not understand EPA's legal rational to not issue a FIP.
    Response 12: As previously noted in the NPR, under CAA section 
179(a)(2), final disapproval pursuant to CAA section 110(k) of a 
submission that addresses a requirement of a part D plan (CAA sections 
171-193), starts a

[[Page 72535]]

sanction clock. Under CAA section 110(c)(1)(A), EPA also has an 
obligation to promulgate a FIP where EPA finds the SIP does not meet 
CAA criteria under CAA section 110(k)(1). Delaware's SIP revision 
addresses a part D Plan requirement for a NSR permitting program, but 
Delaware presently has a fully-approved NSR permit program in the 
approved Delaware SIP. See 77 FR 60053 (October 2, 2012). Even though 
Delaware's underlying State regulation is now different, the approved 
Delaware SIP contained in 40 CFR 52.420 still contains the previously-
approved NSR program and will continue to do so until EPA approves a 
SIP revision either replacing the program or removing it without 
replacement (neither of which has occurred). Thus, at this time, there 
is no deficiency in Delaware's SIP with regards to NSR permitting, and 
Delaware's approved SIP continues to meet CAA NSR criteria. Therefore, 
as a result of this final action to disapprove Delaware's October 15, 
2013 SIP revision, no sanctions under CAA section 179 will be 
triggered, and EPA has no obligation to promulgate a FIP under CAA 
section 110(c). As stated in the NPR, EPA expects Delaware to implement 
the EPA-approved NSR permitting program contained in the SIP, including 
the offsets requirements in the previously-approved version of 
Regulation 1125, and to revise its State provisions at section 2.0 of 
Regulation 1125 accordingly to address CAA 173(c)(1), 40 CFR 51.165, 
and part 51, appendix S, section IV.D for offsets.\6\
---------------------------------------------------------------------------

    \6\ EPA approved Regulation 1125 for the Delaware SIP on October 
2, 2012 (77 FR 60053) including the emission offset requirements 
that address requirements in CAA 173(c)(1), 40 CFR 51.165, and part 
51, appendix S, section IV.D. The State effective date of this 
version of Regulation 1125 was February 11, 2012, and it is this 
version of Regulation 1125 that EPA expects Delaware to implement.
---------------------------------------------------------------------------

    Comment 13: Multiple comments were made in support of Delaware's 
proposed SIP revision, urging EPA to approve Delaware's SIP revision 
submittal, noting that it would encourage upwind states to reduce their 
emissions and help states attain and maintain the federal 75 ppb ozone 
NAAQS.
    Response 13: EPA appreciates the commenter's support for Delaware 
and the interest in improving air quality by reducing emissions from 
upwind states; however, all states are required to have regulations in 
place that meet the specific requirements of the CAA and federal 
implementing regulations, as noted in our responses to comments and in 
the NPR. EPA is disapproving Delaware's October 15, 2013 SIP revision 
submittal because it does not meet the requirements of the CAA and 
federal implementing regulations. Those requirements will not be 
restated here. See 80 FR 30015. While EPA appreciates Delaware's 
interest in securing upwind emission reductions, such concerns are not 
relevant to our review of Delaware's regulations regarding acquisition 
of offsets.
    Comment 14: New Jersey asserted that expanding the geographical 
area for offsets is good for air quality as it encourages reductions in 
upwind emissions. New Jersey further noted that federal requirements 
for offsets encourage a transported pollution burden on downwind states 
to get worse and that new or modified major sources in New Jersey and 
Delaware are required to install controls that represent LAER 
technology and seek offsets from limited areas while sources in upwind 
states would not be held accountable for their pollution transported to 
downwind states. New Jersey asserted that EPA should allow sources to 
obtain offsets from upwind states that trigger nonattainment and the 
offset requirements in downwind states based on if the upwind state 
significantly contributes to the downwind nonattainment, giving New 
Jersey and Delaware a broader geographic area from which to obtain 
emissions offsets, while removing emissions offsets from being used by 
sources located in upwind states, making more offsets available for 
economic growth in New Jersey and Delaware.
    Response 14: EPA appreciates New Jersey's comments and its interest 
in securing upwind reductions in ozone precursors as well as reductions 
in ozone precursors within New Jersey and Delaware. EPA has explained 
in the NPR and in prior responses to comment why Delaware's regulations 
for offsets do not meet federal NSR requirements in the CAA and its 
implementing regulations. While upwind reductions and additional 
availability of offsets within Delaware are important concerns, they 
are not relevant criteria for whether Delaware's regulations address 
CAA NSR requirements. Thus, EPA provides no further response to these 
comments.
    Comment 15: New Jersey commented that current air monitoring data 
shows that New Jersey and Delaware are in nonattainment and/or have 
maintenance issues with the 75 ppb ozone NAAQS and New Jersey also has 
one site in the northern New Jersey multi-state nonattainment area that 
cannot attain the 84 ppb ozone NAAQS; therefore, New Jersey states it 
is imperative that downwind states be able to reduce the amount of 
offsets available in upwind states.
    Response 15: EPA appreciates New Jersey's concern with attaining 
and maintaining old and new ozone NAAQS and has recently promulgated 
the CSAPR Update Rule specifically to address interstate transport with 
respect to the 2008 ozone NAAQS with tightened ozone-season 
NOX budgets designed to achieve emission reductions in 
upwind states. In response to New Jersey's concern with attaining and 
maintaining the ozone standards since publication of the NPR on May 26, 
2015, we note that the Philadelphia Area is meeting the 2008 ozone 
NAAQS of 75 ppb with preliminary 2013-2015 AQM data showing a design 
value of 75 ppb. Additionally, on May 4, 2016, EPA made a final 
determination that the Seaford, DE marginal nonattainment area attained 
the 2008 ozone NAAQS by the applicable attainment date of July 20, 2015 
with a design value of 74 ppb. See 81 FR 26701. EPA is working with the 
states to address transport of ozone pollution so downwind states can 
attain and maintain the ozone NAAQS.
    Comment 16: DSCC referenced EPA's recently promulgated CSAPR, 
effective January 1, 2015, noting that Delaware is not considered an 
upwind contributor to downwind states, and, thus, is not even subject 
to CSAPR.
    Response 16: EPA thanks DSCC for its comment with respect to CSAPR 
applicability. While DSCC's characterization of CSAPR applicability in 
Delaware may be accurate, this comment is not relevant to EPA's 
disapproval of Delaware's October 15, 2013 SIP revision submittal 
revising 7 DNREC 1125, sections 2.5.5 and 2.5.6. It is noted that while 
emission sources in Delaware are not subject to the requirements of 
CSAPR, the State of Delaware is expected to experience improved air 
quality as a result of its full implementation.
    Comment 17: DSCC commented that, in 2008, EPA designated portions 
of Delaware as marginal nonattainment for ground-level ozone, which 
triggers nonattainment provisions of the CAA. DSCC claims Delaware is 
left with a requirement to attain, but no ability to regulate the out-
of-state sources that cause its nonattainment problems.
    Response 17: EPA agrees with DSCC's comment that in 2008 EPA 
designated portions of Delaware as marginal nonattainment for ozone, 
specifically as noted in the NPR disapproving Delaware's October 15, 
2013 SIP submittal revising 7 DNREC 1125, sections 2.5.5 and 2.5.6 and 
again in

[[Page 72536]]

these responses to comment. While EPA appreciates DSCC's concerns, such 
concerns are not relevant to our disapproval of Delaware's regulations 
regarding acquisition of offsets. Transport of ozone precursors from 
one state to another is being addressed by states and EPA under other 
provisions of the CAA.

IV. Final Action

    Pursuant to CAA section 110(k)(3), EPA is disapproving Delaware's 
October 15, 2013 SIP revision consisting of revisions to DNREC's 
regulations related to nonattainment NSR preconstruction permit program 
requirements for emission offsets in the State of Delaware. 
Specifically, Delaware's revised Regulation 1125 which Delaware 
submitted as a SIP revision sought to expand the geographical area in 
which owners and operators of new or modified major stationary sources 
may obtain emissions offsets, regardless of the area's attainment 
classification for the ozone NAAQS and without specific requirements 
that the area ``contribute to violation'' of the ozone NAAQS in the 
area in which a new or modified source is locating or located. EPA is 
disapproving this SIP revision for two reasons: (1) Delaware's proposed 
emissions offset provision language does not comport with the specific 
requirements under CAA sections 172(c)(5) and 173(c)(1) or the federal 
implementing regulations in 40 CFR 51.165 and appendix S; and, (2) 
Delaware lacks legal authority to designate an area as nonattainment 
under CAA section 107(c) and (d).

VI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because this action does not impose additional requirements 
beyond those imposed by state law.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities beyond those 
imposed by state law.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
state, local, or tribal governments, or to the private sector, will 
result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175, because the SIP EPA is disapproving would not 
apply on any Indian reservation land or in any other area where the EPA 
or an Indian tribe has demonstrated that a tribe has jurisdiction, and 
will not impose substantial direct costs on tribal governments or 
preempt tribal law. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not impose additional 
requirements beyond those imposed by state law.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. The EPA 
believes that this action is not subject to the requirements of section 
12(d) of the NTTAA because application of those requirements would be 
inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    The EPA lacks the discretionary authority to address environmental 
justice in this rulemaking.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

L. 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 December 19, 2016. 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 disapproval of the Air Quality 
Management portion of Delaware's Administrative Code, which revises the 
regulations related to nonattainment NSR preconstruction permit program 
requirements for emission offsets may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: September 30, 2016.
Shawn M. Garvin,
Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

[[Page 72537]]

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 (c) is amended under the 
heading ``1125 Requirements for Preconstruction Review'' by revising 
the entry for ``Section 2.0'' to read as follows:


Sec.  52.420  Identification of plan.

* * * * *
    (c) * * *

                            EPA-Approved Regulations and Statutes in the Delaware SIP
----------------------------------------------------------------------------------------------------------------
                                                            State
 State regulation  (7 DNREC 1100)      Title/subject      effective     EPA approval date        Additional
                                                             date                                explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                  1125 Requirements for Preconstruction Review
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 2.0......................  Emission Offset           2/11/12  10/2/12, 77 FR 60053  Added Section 2.2.5,
                                    Provisions (EOP)                                         2.4.3.3 and 2.5.7.
                                    including sections
                                    1.0 through 3.16.4.
                                   Sections 2.5.5 and      9/11/2013  10/20/2016 [Insert    Disapproval. See 40
                                    2.5.6.                             Federal Register      CFR 52.433(a).
                                                                       citation].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

0
3. Add Sec.  52.433 to read as follows:


Sec.  52.433  Nonattainment new source review.

    (a) Disapproval. EPA is disapproving Delaware's October 15, 2013 
submittal of revisions to 7 DNREC 1125, sections 2.5.5 and 2.5.6 
because it does not meet Clean Air Act (CAA) requirements which 
establish the criteria under which the owner or operator of a new or 
modified major stationary source must obtain the required emission 
offsets for the nonattainment new source review (NSR) preconstruction 
permitting program and because Delaware exercises authorities that are 
reserved for EPA under section 107 of the CAA. Delaware's Federally-
approved nonattainment NSR preconstruction program in 7 DNREC 1125, 
sections 1.0 through 3.16.4, effective in Delaware on February 11, 
2012, was fully-approved by EPA on October 2, 2012 and continues to 
apply.
    (b) [Reserved]

[FR Doc. 2016-24657 Filed 10-19-16; 8:45 am]
 BILLING CODE 6560-50-P