[Federal Register Volume 82, Number 175 (Tuesday, September 12, 2017)]
[Proposed Rules]
[Pages 42767-42772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19215]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2015-0656; FRL-9967-55-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Reasonably Available Control Technology (RACT) State 
Implementation Plan (SIP) Under the 2008 Ozone National Ambient Air 
Quality Standard (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a state implementation plan (SIP) revision submitted by the 
State of Delaware. This revision pertains to reasonably available 
control technology (RACT) requirements under the 2008 8-hour ozone 
national ambient air quality standard (NAAQS). Delaware's submittal for 
RACT for the 2008 ozone NAAQS includes (1) certification that, for 
certain categories of sources, RACT controls approved by EPA into 
Delaware's SIP for previous ozone NAAQS are based on currently 
available technically and economically feasible controls and continue 
to represent RACT for 2008 8-hour ozone NAAQS implementation purposes; 
(2) the adoption of new or more stringent regulations or controls that 
represent RACT control levels for certain other categories of sources; 
and (3) a negative declaration that certain categories of sources do 
not exist in Delaware. This action is being taken under the Clean Air 
Act (CAA).

DATES: Written comments must be received on or before October 12, 2017.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2015-0656 at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to

[[Page 42768]]

make. EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e. on the web, cloud, or 
other file sharing system). For additional submission methods, please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section. For the full EPA public comment policy, information about CBI 
or multimedia submissions, and general guidance on making effective 
comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Leslie Jones Doherty, (215) 814-3409, 
or by email at [email protected].

SUPPLEMENTARY INFORMATION: On May 4, 2015, the Delaware Department of 
Natural Resources and Environmental Control (DNREC) submitted a 
revision to its SIP that addresses the requirements of RACT under the 
2008 8-hour ozone NAAQS.

I. Background

A. General

    Ozone is formed in the atmosphere by photochemical reactions 
between volatile organic compounds (VOC) and oxides of nitrogen 
(NOX) in the presence of sunlight. In order to reduce these 
ozone concentrations, the CAA requires control of VOC and 
NOX emission sources to achieve emission reductions in 
moderate or more serious nonattainment areas. Among effective control 
measures, RACT controls significantly reduce VOC and NOX 
emissions from major stationary sources.
    RACT is defined as the lowest emission limitation that a particular 
source is capable of meeting by the application of control technology 
that is reasonably available considering technological and economic 
feasibility.\1\ Section 172(c)(1) of the CAA provides that SIPs for 
nonattainment areas must include reasonably available control measures 
(RACM) for attainment of the NAAQS, including emissions reductions from 
existing sources through adoption of RACT. A major source in a 
nonattainment area is defined as any stationary source that emits or 
has the potential to emit NOX or VOC emissions above a 
certain applicability threshold that is based on the ozone 
nonattainment classification of the area: Marginal, Moderate, Serious, 
or Severe. See ``major stationary source'' in CAA sections 182(b), 
184(b) and 302. Sections 182(b)(2) and 182(f)(1) of the CAA require 
states with moderate (or worse) ozone nonattainment areas to implement 
RACT controls on all stationary sources and source categories covered 
by a control technique guideline (CTG) document issued by EPA and on 
all major sources of VOC and NOX emissions located in the 
area. EPA's CTGs establish presumptive RACT control requirements for 
various VOC source categories. The CTGs typically identify a particular 
control level that EPA recommends as being RACT. In some cases, EPA has 
issued Alternative Control Techniques guidelines (ACTs) primarily for 
NOX source categories, which in contrast to the CTGs, only 
present a range for possible control options but do not identify any 
particular option as the presumptive norm for what is RACT. Section 
183(c) of the CAA requires EPA to revise and update CTGs and ACTs as 
the Administrator determines necessary. EPA issued eleven new CTGs from 
2006 through 2008 for a total of 44 CTGs issued since November 1990. 
States are required to implement RACT for the source categories covered 
by CTGs through the SIP.
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    \1\ See December 9, 1976 memorandum from Roger Strelow, 
Assistant Administrator for Air and Waste Management, to Regional 
Administrators, ``Guidance for Determining Acceptability of SIP 
Regulations in Non-Attainment Areas.'' see also 44 FR 53761, 53762 
(September 17, 1979).
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    Pursuant to section 184(b) of the CAA, the same requirements for 
sources of NOX and VOC apply to any areas in an ozone 
transport region (OTR). A single OTR has been established under section 
184(a), comprising all or part of 12 eastern states and the District of 
Columbia.\2\ The entire State of Delaware is part of the OTR and, 
therefore, must comply with the RACT requirements in section 
184(b)(1)(B) and (2) of the CAA. Specifically, section 184(b)(1)(B) 
requires the implementation of RACT in OTR states with respect to all 
sources of VOC covered by a CTG. Additionally, section 184(b)(2) states 
that any stationary source with the potential to emit 50 tpy of VOC 
emission shall be considered a major source and requires the 
implementation of major stationary source requirements in the OTR 
states as if the area were a moderate nonattainment area. A major 
source in a nonattainment area is defined as any stationary source that 
emits or has the potential to emit NOX or VOC emissions 
above a certain applicability threshold that is based on the ozone 
nonattainment classification of the area: Marginal, Moderate, Serious, 
or Severe. See ``major stationary source'' in CAA sections 182(b) and 
184(b).
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    \2\ Only a portion of the Commonwealth of Virginia is included 
in the OTR.
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B. Delaware History

    Delaware has been subject to the CAA RACT requirements as a result 
of previous ozone designations. Under the 1-hour ozone NAAQS, Kent and 
New Castle Counties in Delaware were designated part of the 
Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD severe ozone nonattainment 
area, and Sussex County was designated as a marginal ozone 
nonattainment area.
    Since the entire State of Delaware has been part of the OTR, RACT 
was implemented in Sussex County as a moderate nonattainment area. 
Therefore, all three counties were subject to RACT requirements under 
the 1-hour ozone standard. Since the early 1990's, Delaware implemented 
numerous RACT controls throughout the State to meet the CAA RACT 
requirements under the 1-hour and the 1997 8-hour ozone standards.
    Under the 1997 8-hour ozone NAAQS, the entire State of Delaware 
(Kent, New Castle and Sussex Counties) was designated as a part of the 
Philadelphia-Wilmington-Atlantic City moderate nonattainment area, and 
therefore continued to be subject to the CAA RACT requirements. See 69 
FR 23858, 23931 (April 30, 2004). Delaware revised and promulgated its 
RACT regulations and demonstrated that it complied with the CAA RACT 
requirements in a SIP revision approved by EPA on July 23, 2008 (73 FR 
42681).
    Under CAA section 109(d), EPA is required to periodically review 
and promulgate, as necessary, the ozone NAAQS to continue to protect 
human health and the environment. On March 27, 2008, EPA revised the 
1997 8-hour ozone standard to a new 0.075 ppm level (73 FR 16436). On 
May 21, 2012, EPA finalized designations for the 2008 8-hour ozone 
NAAQS (77 FR 30087). Under the 2008 8-hour ozone standard, New Castle 
County of Delaware was designated as a part of the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE marginal nonattainment area, and 
Sussex County of Delaware was designated as a stand-alone marginal 
nonattainment area (77 FR 30088). However, due to its location in the 
OTR, the entire State of Delaware is required to address the CAA RACT 
requirements for a moderate nonattainment area by submitting to EPA a 
SIP revision that demonstrates how Delaware meets RACT requirements 
under the standard. Delaware is required to implement RACT for the 2008 
ozone NAAQS on all VOC sources covered by a CTG issued by EPA, as well 
as all other major stationary sources located within the State 
boundaries with the potential to

[[Page 42769]]

emit 50 or 100 tons per year or more of VOC or NOX, 
respectively. Therefore, the RACT requirements under CAA sections 182 
and 184 apply to CTG sources, including eleven new CTG that EPA issued 
between 2006 and 2008, and any other VOC or NOX sources.

C. EPA Guidance and Requirements

    EPA has provided more substantive RACT requirements through final 
implementation rules for each ozone NAAQS as well as guidance. On March 
6, 2015, EPA issued its final rule for implementing the 2008 8-hour 
ozone NAAQS (the 2008 Ozone Implementation Rule). See 80 FR 12264. This 
rule addressed, among other things, control and planning obligations as 
they apply to nonattainment areas under the 2008 8-hour ozone NAAQS, 
including RACT and RACM. In this rule, EPA specifically required that 
states meet the RACT requirements either through a certification that 
previously adopted RACT controls in their SIP revisions approved by EPA 
under a prior ozone NAAQS continue to represent adequate RACT control 
levels for attainment of the 2008 8-hour ozone NAAQS, or through the 
adoption of new or more stringent regulations or controls that 
represent RACT control levels. A certification must be accompanied by 
appropriate supporting information such as consideration of information 
received during the public comment period and consideration of new 
data. Adoption of new RACT regulations will occur when states have new 
stationary sources not covered by existing RACT regulations, or when 
new data or technical information indicates that a previously adopted 
RACT measure does not represent a newly available RACT control level. 
Additionally, states are required to submit a negative declaration if 
there are no CTG major sources of VOC and NOX emissions 
within the nonattainment area in lieu of, or in addition to, a 
certification.

II. Summary of SIP Revision

    On May 4, 2015 Delaware submitted a SIP revision to address all the 
requirements of RACT set forth by the CAA under the 2008 8-hour ozone 
NAAQS (the 2015 RACT Submission). Specifically, Delaware's 2015 RACT 
Submission includes: (1) A certification that for certain categories of 
sources previously adopted NOX and VOC RACT controls in 
Delaware's SIP that were approved by EPA under the 1979 1-hour and 1997 
8-hour ozone NAAQS are based on the currently available technically and 
economically feasible controls, and continue to represent RACT for 
implementation of the 2008 8-hour ozone NAAQS; (2) the adoption of new 
or more stringent regulations or controls that represent RACT control 
levels for certain categories of sources; and (3) a negative 
declaration that certain CTG or non-CTG major sources of VOC and 
NOX sources do not exist in Delaware.

A. VOC RACT Controls

    Delaware Air Pollution Control Regulation No. 1124 (formerly 
Regulation 24) contains Delaware's VOC RACT controls regulations for 
all VOC sources greater than 50 tpy that were implemented and approved 
into the Delaware SIP under the 1-hour and 1997 8-hour ozone NAAQS.\3\ 
Delaware is certifying that these regulations, all previously approved 
by EPA into the SIP, continue to meet the RACT requirements for the 
2008 8-hour ozone NAAQS for major stationary sources and CTG covered 
sources of VOCs. In addition, since EPA's approval of Delaware's 1997 
8-hour ozone RACT SIP revision (73 FR 42681, July 23, 2008), the 
following sections in Regulation 1124 have been updated to meet the 
requirements of EPA's CTGs: Sections 11, 12, 13, 16, 19, 20, 22, 23, 37 
and 45. All these revisions have been previously approved into 
Delaware's SIP and meet the requirements of EPA's CTGs issued up to and 
including July 20, 2014. Since EPA's approval of Delaware's 1997 8-hour 
ozone NAAQS RACT SIP revision, Delaware adopted and EPA approved for 
the Delaware SIP, three new provisions or regulations to meet RACT 
requirements. These are (1) Regulation 1124, Section 8, Handling, 
Storage, and Disposal of VOCs, (2) Regulation 1124, Section 46, Crude 
Oil Lightering Operations, and (3) Regulation 1141, section 4, 
Adhesives and Sealants. More detailed information on these provisions 
as well as a detailed summary of EPA's review can be found in the 
Technical Support Document (TSD) for this action which is available on 
line at www.regulations.gov, Docket number EPA-R03-OAR-2015-0656.
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    \3\ EPA notes that Delaware's Regulation 1124 at subsection 1.4 
contains a provision that was identified as containing inappropriate 
exemptions for startup and shutdown as well as containing 
inappropriate director's discretion provisions in EPA's rulemaking, 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; 
Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown and Malfunction,'' (EPA's SSM SIP Call). See 80 FR 33839 
(June 12, 2015). EPA provides analysis of the interplay and effects 
of the EPA's SSM SIP Call and Regulation 1124, subsection 1.4 on 
this proposed rulemaking in Section III of this rulemaking action.
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    Delaware also submitted a negative declaration that the following 
VOC CTG source categories do not exist in Delaware: Manufacture of 
pneumatic rubber tires; wood furniture manufacturing operations; 
shipbuilding and ship repair operations (surface coating); and 
fiberglass boat manufacturing materials.
    Delaware's 2015 RACT Submission also discusses Regulation 1141, 
Section 1.0, Architectural and Industrial Maintenance Coatings and 
Regulation 1141, Section 2.0, Consumer Products. These regulations, 
both previously approved by EPA into the Delaware SIP, establish VOC 
content limits in various coating materials and consumer products. 
Although these rules will assist Delaware in its efforts to attain the 
ozone standard, they are ``beyond RACT'' levels as they apply to non-
major stationary sources.

B. NOX RACT Controls

    Delaware's 2015 RACT Submission asserts that Delaware Air Pollution 
Control Regulation No. 1112 (formerly Regulation 12) contains 
Delaware's NOX RACT controls that were implemented and 
approved into the Delaware SIP under the 1-hour and the 1997 8-hour 
ozone NAAQS. Regulation 1112 has been in effect since 1993 and was 
approved by EPA as RACT under the 1997 8-hour ozone standard for major 
stationary sources of NOX. 66 FR 32231 (June 14, 2001). In 
Regulation 1112, Delaware's NOX RACT controls are specified 
by source groups such as fuel burning equipment based on heat input 
capacity, gas turbines and stationary internal combustion engines. In 
the 2015 RACT Submission, Delaware is certifying that Regulation 1112 
continues to represent the lowest emission limits based on currently 
available and economically feasible control technology for the source 
categories and, therefore, meets the RACT requirements for the 2008 8-
hour ozone NAAQS for major stationary source NOX controls as 
required by CAA sections 182(b)(2), 182(f), and 184(b)(2). The details 
of Regulation 1112 are contained in the TSD prepared for this 
rulemaking.
    Delaware's Regulation 1112 provides presumptive NOX 
limits for major stationary sources of NOX but also provides 
for a case-by-case RACT determination process. For case-by-case 
determinations under Regulation 1112, three (3) stationary sources 
which previously received NOX RACT determinations in 
Delaware's SIP have been shutdown and Delaware has requested EPA remove 
these RACT determinations from the SIP. These shutdown sources are (1) 
General Chemical Corporation facility's sulfuric

[[Page 42770]]

acid and inter-stage absorption system, (2) General Chemical 
Corporation facility's metallic nitrite process, and (3) SPI Polyols, 
Incorporated facility's Polyhydrate Alcohol Catalyst Regenerative 
process. Delaware requests that these three NOX RACT 
determinations be removed from Delaware's SIP as the sources of 
NOX are permanently closed. The remaining case by case RACT 
determination for CitiSteel USA, Incorporated, Electric Arc Furnace 
(EAF) rated at 150 tons per charge was approved by EPA as RACT for the 
1997 ozone NAAQS (73 FR 42681), and Delaware states that the case-by-
case NOX RACT determination continues to represent RACT 
level control for this source. Pursuant to Delaware's case by case 
authority in Regulation 1112, Delaware also proposes new limits as RACT 
for two units at the Delaware City Refinery, including the fluid-coking 
unit (FCU) and the fluid-catalytic-cracking unit (FCCU).\4\
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    \4\ Limits are federally enforceable via a consent decree 
between EPA, Delaware and Delaware City Refinery Company. See United 
States of America, et al., v. Motiva Enterprises LLC, No. H-01-0978.
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    In addition, in the 2015 RACT Submission, Delaware states it has 
implemented specific NOX controls in other regulations to 
tighten requirements for relevant subgroups contained in Regulation 
1112. Delaware asserts Regulations 1142, 1144, 1146, and 1148 contain 
additional NOX controls that have been implemented and 
previously approved into the Delaware SIP.\5\ Delaware states that 
these regulations in conjunction with the requirements from Regulation 
1112 meet the RACT requirements for the 2008 8-hour ozone NAAQS for 
these source categories. These source categories are industrial 
boilers, industrial boilers and heat processors at petroleum 
refineries, stationary generators, electric generating units (EGU), and 
combustion turbines. Regulations 1112, 1142, 1144, 1146 and 1148 all 
establish applicability, exemptions, definitions, and emission 
standards as well as requirements for compliance, monitoring, 
recordkeeping and reporting for their respective sources. Further 
details of Delaware's NOX RACT determination in the 2015 
RACT Submission for the 2008 8-hour ozone NAAQS can be found in the TSD 
prepared for this rulemaking. Delaware also submitted a negative 
declaration for cement kilns as a major source category of 
NOX emissions that does not exist in Delaware.
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    \5\ EPA notes that Delaware's Regulation 1142 at subsection 
2.3.1.6 contains a provision that was identified as containing 
inappropriate exemptions for startup and shutdown as well as 
containing an inappropriate director's discretion provision in EPA's 
SSM SIP call. 80 FR 33839. EPA provides analysis of the interplay 
and effect of EPA's SSM SIP Call and Regulation 1142, subsection 
2.3.1.6 on this proposed rulemaking in Section III of this 
rulemaking action.
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III. EPA's Evaluation of Delaware's SIP Revision

A. RACT

    EPA has reviewed Delaware's 2015 RACT Submission and finds 
Delaware's certification of the RACT regulations for major sources of 
VOC and NOX previously approved by EPA for the 1-hour and 
1997 8-hour ozone NAAQS continue to represent RACT control level for 
the source categories.\6\ EPA also finds that Delaware's SIP implements 
RACT with respect to all sources of VOCs covered by a CTG issued prior 
to July 20, 2014 and all major stationary sources of VOC and 
NOX covered by Delaware's regulations and case-by-case RACT. 
EPA accepts Delaware's negative declarations for VOC sources as there 
are no applicable sources of cement kilns in the State. EPA finds that 
Delaware's major stationary source VOC and NOX regulations 
represent the lowest emission limits based on currently available and 
economically feasible control technology for these source categories. 
EPA's review of this material indicates that Delaware's 2015 RACT 
Submission meets the RACT requirements for the 2008 8-hour ozone NAAQS 
for applicable CTG source categories and major stationary sources of 
VOC and NOX to address sections 182(b), 182(f) and 184(b)(2) 
of the CAA.
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    \6\ As noted above, two of Delaware's regulations which Delaware 
relies upon as RACT for the 2008 ozone NAAQS were involved in EPA's 
SSM SIP Call, Delaware's Regulation 1142 (subsection 1.4) and 
Regulation 1142 (subsection 2.3.1.6). These regulations contain 
provisions that were identified as containing inappropriate 
exemptions for startup and shutdown as well as containing 
inappropriate director's discretion provisions in EPA's SSM SIP 
call. 80 FR 33839. EPA's analysis of the impact and effect of EPA's 
SSM SIP Call and Regulations 1124 (subsection 1.4) and 1142 
(subsection 2.3.1.6) on this proposed rulemaking is provided in this 
Section III of this rulemaking action.
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    With respect to the previous case by case RACT determinations 
submitted by Delaware and approved by EPA for the Delaware SIP, the CAA 
section 110(l) states ``The Administrator shall not approve a revision 
of a plan if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress (RFP) 
or any applicable requirement of the CAA.'' EPA finds that the removal 
of the emission limits for (1) the Polyhydrate Alcohol Catalyst 
Regenerative process SPI Polyols, Incorporated, (2) the sulfuric acid 
process and inter-stage absorption system at General Chemical 
Corporation and (3) the metallic nitrite process at General Chemical 
Corporation from the Delaware SIP will not interfere with attainment of 
any NAAQS or with RFP or any applicable requirement of the CAA because 
these sources have permanently shutdown and thus emissions have been 
completely eliminated. EPA finds the NOX RACT determination 
for CitiSteel USA, Incorporated, Electric Arc Furnace (EAF) continues 
to represent the lowest emission limitation that is reasonably 
available considering technological and economic feasibility for this 
source. With respect to the FCU and FCCU at the Delaware City Refinery 
Company, EPA finds that the emission limits, compliance requirements 
and recordkeeping and reporting requirements established by Delaware 
represent RACT level of control for these units. Further details of 
EPA's review and rationale for proposing to approve these SIP revisions 
can be found in the TSD prepared for this rulemaking.

B. RACT and the EPA Startup, Shutdown, and Maintenance (SSM) SIP Call

    In the 2015 RACT Submission, Delaware is certifying that Regulation 
1124, Control of Volatile Organic Compound Emissions, and Regulation 
1142, Control of Nitrogen Oxide Emissions from Industrial Boilers and 
Process Heaters at Petroleum Refineries, contain RACT levels of control 
for meeting the 2008 8-hour ozone NAAQS requirements for certain major 
sources of NOX and VOC. On May 22, 2015, the EPA 
Administrator signed a final action, EPA's SSM SIP Call (formally, the 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction''). 80 FR 33839. With regard to the Delaware SIP, seven 
Delaware regulations including Regulation 1124, Control of Volatile 
Organic Compound Emissions, section 1.4; and Regulation 1142, Control 
of Nitrogen Oxide Emissions from Industrial Boilers and Process Heaters 
at Petroleum Refineries, section 2.3.1.6 were cited as giving the State 
discretion to create exemptions allowing excess emissions during 
startup and shutdown and were thus inconsistent with EPA policy as 
expressed in the EPA's SSM SIP Call and the requirements of the

[[Page 42771]]

CAA. Delaware's 2015 RACT Submission was sent to EPA on May 4, 2015, 
prior to promulgation of EPA's SSM SIP Call.
    In 2016, Delaware revised Regulations 1124 and 1142, with a State 
effective date of January 11, 2017, to remove the provisions identified 
by EPA in EPA's SSM SIP Call as being substantially inadequate and 
inconsistent with the CAA. Subsequently, on November 21, 2016, Delaware 
submitted a SIP revision to address EPA's SSM SIP Call for six of the 
seven Delaware regulations mentioned in the SSM SIP Call, including the 
portions affecting Regulation 1124 (subsection 1.4) and Regulation 1142 
(subsection 2.3.1.6). Delaware's November 21, 2016 SSM SIP revision 
will be dealt with in a separate rulemaking action.
    Challenges to EPA's SSM SIP Call are now pending before the United 
States Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit), in consolidated Case No. 15-1239 captioned Environmental 
Committee of the Florida Electric Power Coordinating Group, Inc. v. EPA 
(consolidated). Within the context of that litigation, the EPA has 
informed the D.C. Circuit that ``EPA intends to closely review the SSM 
Action, and the prior positions taken by the Agency with respect to the 
SSM Action may not necessarily reflect its ultimate conclusions after 
that review is complete.'' Case No. 15-1239, Document #1671681 
(available in the docket for this rulemaking action). In a July 24, 
2017 Status Report, EPA again told the D.C. Circuit that it ``is 
continuing to review the SSM Action to determine whether the Agency 
will reconsider all or part of the SSM Action, and/or grant the State 
of Texas' administrative petition for reconsideration in whole or in 
part.'' Because our review of the Delaware 2015 RACT Submission 
necessarily includes our review of two regulations, Regulation 1124 and 
1142, which are directly impacted by the SSM SIP Call, EPA would 
therefore necessarily have to apply the substance of the SSM SIP Call 
which (1) is currently the subject of litigation in the D.C. Circuit 
and (2) is under review by the EPA with the result of that review 
uncertain either in terms of the substance or the date it will 
conclude. EPA is still actively reviewing the SSM SIP Call. Therefore, 
EPA is proposing to approve the 2015 RACT Submission under two 
alternative bases. EPA plans to take final action on the 2015 RACT 
Submission adopting the basis that is consistent with the Agency's 
final position on the SSM SIP Call along with appropriate consideration 
of public comments received.
    One alternative basis for EPA's proposed approval of Delaware's 
2015 RACT Submission assumes that EPA will change its position and 
related SSM Guidance outlined in the SSM SIP Call in such a way that 
EPA would withdraw the SSM SIP Call as to Delaware Regulations 1124 and 
1142.\7\ Based on this assumed EPA withdrawal of Delaware's portion of 
the EPA's SSM SIP Call, EPA proposes to find that Delaware's 2015 RACT 
Submission, including Delaware's Regulations 1124 and 1142 as presently 
included in the Delaware SIP, is fully consistent with Clean Air Act 
requirements.
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    \7\ This alternative basis for proposed approval assumes that 
EPA has changed its SSM Guidance and withdrawn the SSM SIP Call as 
to Delaware Regulations 1124 and 1142. However, neither of those 
actions are being effectuated here. Therefore, EPA does not consider 
those issues open for public comment as part of this rulemaking 
action. Any comments filed on this rulemaking that relate to the 
possibility of EPA changing the SSM Guidance generally or a possible 
withdrawal of EPA's SSM SIP Call as to Delaware Regulations 1124 and 
1142 will be considered outside the scope of this rulemaking, which 
is limited to EPA's proposed action on Delaware's 2015 RACT 
Submission.
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    Under the other alternative rationale, EPA assumes that EPA's 
position (and related guidance) outlined in the SSM SIP Call will not 
change in such a way that EPA would withdraw the SSM SIP Call as to 
Delaware Regulations 1124 and 1142. Accordingly, EPA is proposing to 
approve the 2015 RACT Submission as addressing RACT requirements for 
the 2008 ozone NAAQS because EPA intends to propose approval and take 
final rulemaking action approving the revised versions of Regulations 
1124 and 1142 as revised in Delaware's response to the SSM SIP Call. 
This basis for proposed approval of the 2015 RACT Submission is based 
upon EPA approving Delaware's revisions to Regulations 1124 and 1142 
prior to finalizing our action on the 2015 RACT Submission.\8\ By 
taking such final rulemaking action approving the versions of 
Regulations 1124 and 1142 prior to EPA taking final rulemaking action 
on this 2015 RACT Submission, the regulations Delaware relies upon for 
NOX and VOC RACT would no longer include any provisions 
identified in EPA's SSM SIP Call.
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    \8\ However, EPA notes that we cannot prejudge a final approval 
on the SSM SIP Call submission. If EPA were to change direction 
based on comments received on proposed rulemaking to approve that 
SIP submission, we would not be able to approve the SSM SIP Call 
submission, and therefore we would not be able to give final 
approval to the 2015 RACT Submission.
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    EPA is taking public comment on our proposed alternatives discussed 
herein for approval for Delaware's 2015 RACT Submission for the 
NOX and VOC RACT for 2008 ozone NAAQS.

IV. Proposed Action

    EPA is proposing to approve Delaware's 2015 RACT Submission on the 
basis that Delaware has met the RACT requirements under the 2008 8-hour 
ozone NAAQS per sections 182(b), 182(f) and 184(b)(2) for the reasons 
explained in this notice, including our position relating to the SSM 
SIP Call and the related provisions within Regulations 1124 and 1142 
presently in the Delaware SIP. EPA finds that Delaware's 2015 RACT 
Submission demonstrates that the State has adopted air pollution 
control strategies that represent RACT for the purposes of compliance 
with the 2008 8-hour ozone standard for all major stationary sources of 
VOC and NOX. EPA finds that Delaware's SIP implements RACT 
with respect to all sources of VOCs covered by a CTG issued prior to 
July 20, 2014 as well as represents RACT for all CTG VOC and 
NOX major stationary sources of. EPA is proposing to approve 
source specific NOX RACT determinations for two (2) units at 
the Delaware City Refinery Company. EPA is proposing to remove, in 
accordance with section 110 of the CAA, three (3) source specific 
NOX RACT determinations for prior ozone NAAQS from 
Delaware's SIP as the three processes at both facilities have 
permanently shutdown--one determination for SPI Polyols, Incorporated 
and two determinations for General Chemical Corporation. Delaware's SIP 
revision is based on a combination of (1) certification that for 
certain categories of sources previously adopted RACT controls in 
Delaware's SIP that were approved by EPA under the 1-hour ozone NAAQS 
and 1997 8-hour ozone NAAQS are based on currently available 
technically and economically feasible controls, and that they continue 
to represent RACT for the 2008 8-hour standard implementation purposes; 
(2) the adoption of new or more stringent regulations or controls into 
the Delaware SIP that represent RACT control levels for certain 
categories of sources; and (3) the negative declaration that certain 
CTG or other major sources of VOC and NOX emissions do not 
exist within Delaware. EPA is soliciting public comments on the issues 
discussed in this document relevant to RACT requirements for Delaware 
for the 2008 ozone NAAQS. These comments will be considered before 
taking final action.

V. Incorporation by Reference

    In this proposed rule, EPA is proposing to include in a final EPA 
rule

[[Page 42772]]

regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference source-specific RACT determinations under the 2008 8-hour 
ozone NAAQS for certain major sources of NOX and VOC 
emissions. EPA has made, and will continue to make, these materials 
generally available through http://www.regulations.gov and/or at the 
EPA Region III Office (please contact the person identified in the For 
Further Information Contact section of this preamble for more 
information).

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule, Delaware's 2008 8-hour ozone RACT 
SIP revision does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
is not approved to apply in Indian country located in the state, and 
EPA notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: August 30, 2017.
John Armstead,
Acting Regional Administrator, Region III.
[FR Doc. 2017-19215 Filed 9-11-17; 8:45 am]
 BILLING CODE 6560-50-P