[Federal Register Volume 84, Number 25 (Wednesday, February 6, 2019)]
[Rules and Regulations]
[Pages 2060-2063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01113]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0492; FRL-9989-03-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Interstate Transport Requirements for the 2010 1-Hour Sulfur 
Dioxide Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the 
remaining portions of a state implementation plan (SIP) revision 
submitted by the State of Delaware. This revision addresses the 
infrastructure requirement for interstate transport of pollution with 
respect to the 2010 1-hour sulfur dioxide (SO2) national 
ambient air quality standard (NAAQS). This action is being taken under 
the Clean Air Act (CAA).

DATES: This final rule is effective on March 8, 2019.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2013-0492. All documents in the docket are listed on 
the http://www.regulations.gov website. Although listed in the index, 
some 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: Joseph Schulingkamp, (215) 814-2021, 
or by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On May 29, 2013, Delaware submitted, through the Delaware 
Department of Natural Resources and Environmental Control (DNREC), a 
revision to its SIP to satisfy the infrastructure requirements of 
section 110(a)(2) of the CAA for the 2010 1-hour SO2 NAAQS, 
including the interstate transport requirements of section 
110(a)(2)(D)(i)(I). On January 22, 2014 (79 FR 3506), EPA approved 
Delaware's infrastructure SIP submittal for the 2010 1-hour 
SO2 NAAQS for all applicable elements of section 110(a)(2) 
with the exception of 110(a)(2)(D)(i)(I). On August 8, 2018 (83 FR 
39035), EPA published a notice of proposed rulemaking (NPRM) approving 
the portion of Delaware's SIP addressing the interstate transport 
requirements of section 110(a)(2)(D)(i)(I) for the 2010 1-hour 
SO2 NAAQS. For more information on SO2 pollution, 
EPA's infrastructure requirements, and interstate transport 
requirements, see Section I of the August 8, 2018 NPRM.

II. Summary of SIP Revision and EPA's Analysis

    The portions of Delaware's May 29, 2013 SIP submittal addressing 
interstate transport (for section 110(a)(2)(D)(i)(I)) discuss how 
Delaware does not significantly contribute with respect to the 2010 1-
hour SO2 NAAQS to nonattainment in, or interfere with 
maintenance in, any other state and discusses prevailing wind direction 
in the region. Delaware described in its submittal several existing 
SIP-approved measures and other federally enforceable source-specific 
measures, pursuant to permitting requirements under the CAA, that apply 
to SO2 sources within the State.
    After evaluating the information on emissions, monitoring data, and 
meteorological data, EPA concluded that the level of SO2 
emissions in Delaware is primarily due to point sources, which have 
substantially and permanently reduced SO2 emissions in the 
past five years. Additionally, the historical and recent data from 
SO2 monitors in close proximity to Delaware's borders 
support the conclusion that emissions from point sources in Delaware 
have been substantially reduced and are not impacting neighboring 
states. Based on this information, EPA agreed with Delaware's general 
conclusion that the existing Delaware SIP is adequate to prevent 
sources in Delaware from significantly contributing to nonattainment or 
interfering with maintenance in another state with respect to the 2010 
1-hour SO2 NAAQS. A detailed summary of EPA's review and 
rationale for our approval of this SIP revision as meeting CAA section 
110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS may be 
found in EPA's technical support document (TSD) (docket number: EPA-
R03-OAR-2013-0492) and will not be restated here.

[[Page 2061]]

III. Response to Comments

    EPA received three sets of comments on the August 8, 2018 NPRM. Two 
of those sets lacked the required specificity to Delaware's SIP 
submissions and the interstate transport requirements of CAA section 
110(a)(2)(D)(i)(I); EPA provides no response to these comments because 
they fall outside the scope of our action. EPA did receive one relevant 
set of comments; those comments and EPA's responses are discussed in 
this section of this rulemaking action.
    Comment: The commenter first stated that the SIP must consider 
SO2 emissions from refineries and their interstate impacts, 
including emissions from the Delaware City Refinery. The commenter also 
stated that consideration must include actual emissions as well as 
permitted emissions including emissions permitted during startup, 
shutdown, and malfunction.
    Response: EPA agrees with the commenter that the Delaware SIP 
should consider SO2 emissions from emission sources in 
Delaware. However, as stated in the NPRM and the TSD in greater detail, 
EPA has considered emissions from the Delaware City Refinery, as well 
as emissions from 33 other facilities in Delaware that produce over one 
ton per year (tpy) of SO2. See Table 2 of EPA's TSD. EPA 
considered actual emissions from the two most recent National Emissions 
Inventory (NEI) years (the 2011 NEI version 2 and 2014 NEI version 2) 
as well as the most recent year of data submitted to EPA's Emissions 
Inventory System (EIS) (the 2015 EIS). In comparing these data sets, 
EPA was able to evaluate the universe of sources in Delaware that are 
likely to be responsible for SO2 emissions potentially 
contributing to interstate transport to downwind areas and states. In 
addition, by evaluating the actual emissions data reported to EPA, the 
Agency has considered emissions from any startup, shutdown, or 
malfunction events to the greatest extent possible; the process by 
which states submit data to the NEI system requires states to include 
emissions related to these events. Thus, EPA did consider actual 
emissions, including emissions that may have been from startup, 
shutdown, or malfunction events when evaluating Delaware's SIP revision 
to address interstate transport.
    In addition, the commenter has not provided any specific 
information that any source, or its emissions, were not included in 
EPA's analysis or that any source listed in Table 2 of EPA's TSD has 
substantially higher emissions than what was indicated in Table 2 of 
EPA's TSD. EPA's assessment of Delaware's satisfaction of all 
applicable requirements under CAA section 110(a)(2)(D)(i)(I) for the 
2010 SO2 NAAQS was reasonably informed in part by evaluating 
the downwind impacts of emissions from these sources. After reviewing 
this information on emissions, monitoring data, and meteorological 
data, EPA determined that Delaware does not significantly cause or 
contribute to nonattainment or interfere with maintenance of the NAAQS 
in downwind states.
    Comment: The commenter claimed it is arbitrary to assume that 
short-term emissions are equal to long-term emission limits. The 
commenter claimed it is arbitrary to assume that hourly emissions are 
never higher than the thirty-day or longer averaging time because there 
is no basis for this assumption. The commenter further claimed sources 
almost always exceed their long-term emission limits during shorter 
periods of time.
    Response: EPA agrees with the commenter as a general matter that 
short-term emissions on an hourly basis could be higher than longer-
term hourly emissions on a rolling average, and that a source just 
meeting its long-term limit could potentially have short-term emissions 
above the level of that limit. In designations and in review of 
attainment demonstrations, EPA gives appropriate recognition to this 
reality. See ``Guidance for 1-Hour SO2 Nonattainment Area 
SIP Submissions'' (April 23, 2014), available at https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf. However, this potential for 
short term emissions to be higher on an hourly basis and not affect 
compliance with longer term limits does not affect EPA's conclusion 
regarding the adequacy of Delaware's SIP for interstate transport 
relative to the 1-hour SO2 NAAQS, because the analysis in no 
way relies on an assumption that short-term emissions remain at or 
below long-term emission limits. In the NPRM and TSD, EPA did not rely 
on evaluations of short-term or long-term emission limits to support 
the conclusion that Delaware does not significantly cause or contribute 
to nonattainment or interfere with maintenance of the NAAQS in downwind 
states, nor did the Agency make any statements or conclusions regarding 
short-term or long-term emission limits, or the relationship between 
such limits and Delaware not significantly contributing to 
nonattainment or maintenance issues in other states.\1\ Similarly, 
EPA's proposed approval of the interstate transport SIP did not rely on 
any evaluation of hourly emissions or comparisons with thirty-day or 
longer averaging times, nor did EPA make any assumptions regarding 
these topics. EPA assessed annual emissions data in order to determine 
the scope of review necessary as a way to narrow Delaware's universe of 
sources likely to be responsible for SO2 emissions 
potentially contributing to interstate transport. After determining 
that 62% of Delaware's emissions are from point sources, EPA next 
focused on individual facilities which emitted above one tpy. EPA chose 
one tpy as the emissions threshold for consideration for interstate 
transport because Delaware's universe of point sources was manageable 
enough to evaluate at this low threshold; this does not preclude EPA 
from choosing a different threshold in the future or for evaluating 
interstate transport in a different state. With regards to the 
commenter's claims about sources ``almost always'' exceeding their 
long-term emission limits during shorter periods of time, the commenter 
did not provide any evidence about any of the 33 named sources 
evaluated by EPA in the TSD to support such a claim.
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    \1\ EPA notes that short-term limits were utilized in modeling 
performed during the designations process for the Anne Arundel, 
Maryland nonattainment area. However, EPA did not rely on that 
modeling for any purposes related to evaluating significant 
contribution to nonattainment or interference with maintenance of 
the 2010 SO2 NAAQS. As further described in the July 7, 
2018 TSD and NPRM for this action, based on wind direction, 
distance, and emissions from Delaware, EPA believes it is unlikely 
for Delaware's emissions to significantly contribute or interfere 
with maintenance of the 2010 SO2 NAAQS.
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    Comment: The commenter asserted that, for sources with no emission 
limits such as flares, EPA's analysis must be based on a mass balance 
calculation of maximum emissions and be based on the flares not 
operating unless there is a SIP provision with adequate monitoring 
which requires the flares to ignite every time the stack is in service.
    Response: In the NPRM and TSD, EPA did not make any claims or 
conclusions regarding emissions from flares, calculating maximum 
emissions, or any other topic regarding sources with no emission 
limits. EPA's evaluation regarding Delaware's emissions and whether the 
SIP adequately addressed obligations in CAA section 110(a)(2)(D)(i)(I) 
was based on facility-wide actual emissions reported to EPA in both the 
NEI system and EIS. As such, the commenter's assertion that EPA's 
analysis must be based on a mass balance calculation of maximum

[[Page 2062]]

emissions and be based on the flare not operating is not pertinent to 
EPA's analysis of Delaware's sources or the adequacy of Delaware's SIP 
in meeting obligations in 110(a)(2)(D)(i)(I). Thus, no further response 
is provided.
    Comment: Lastly, the commenter stated that it is arbitrary for EPA 
to rely on prevailing winds as the 2010 SO2 NAAQS is a 1-
hour standard. The commenter states that the meteorology in roughly 
99.95% of hours in any given year would be irrelevant because the form 
of the NAAQS is the 4th high daily maximum one-hour value. The 
commenter further stated that, unless EPA has evidence in the record 
that the winds traveled in the same direction as the prevailing winds 
99.95% of the year, the use of prevailing winds is irrelevant to the 
question of whether sources in Delaware significantly contribute to, or 
interfere with the maintenance of, the NAAQS in New Jersey.
    Response: EPA disagrees with the commenter's assertion that it is 
arbitrary for EPA to rely on prevailing winds as part of the weight of 
evidence assessment of whether Delaware's SIP satisfies the interstate 
transport requirements for the 2010 SO2 NAAQS. EPA believes 
the central tendency of the distribution of wind directions being away 
from a receptor location as indicated by a wind rose, and the frequency 
of winds being in the direction of a receptor location, can be useful 
factors in determining the likelihood of SO2 emissions 
transporting beyond Delaware's borders. Furthermore, EPA's use of wind 
rose information is only one of many factors considered in the EPA's 
weight of evidence analysis and is not the sole factor in determining 
whether Delaware significantly contributes to nonattainment or 
interferes with maintenance of the NAAQS in downwind states. In 
addition to wind rose information, EPA evaluated the distances between 
sources in Delaware and the borders with other states, currently 
available ambient monitoring data, permanent and enforceable reductions 
from facilities in Delaware, and SIP-approved programs that limit any 
future increases in emissions from sources in Delaware (such as 
nonattainment new source review and prevention of significant 
deterioration permitting programs) and implementation of nationally 
applicable Federal rules (such as 40 CFR part 63, subparts DDDDD and 
JJJJJJ, collectively ``EPA's ICI Boilers and Heaters NESHAP 
Rules'').\2\
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    \2\ Because EPA's consideration of wind rose information is only 
one of many factors used in evaluating Delaware's transport SIP for 
the 1-hour SO2 NAAQS, our evaluation of wind rose 
information has no implications for how wind rose information may be 
used or considered in any other EPA action. The technical utility or 
importance of wind rose information in another action will depend on 
the specific technical circumstances and related CAA requirements.
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IV. Final Action

    EPA is approving the remaining portions of the May 29, 2013 SIP 
revision that address interstate transport for the 2010 1-hour 
SO2 NAAQS as these portions meet the requirements in CAA 
section 110 and specifically in 110(a)(2)(D)(i)(I). EPA is approving 
these portions of the May 29, 2013 SIP submission as a revision to the 
Delaware SIP.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 8, 2019. 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, addressing Delaware's interstate transport 
requirements for the 2010 1-hour SO2 NAAQS, may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

[[Page 2063]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: December 28, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart I--Delaware

0
2. In Sec.  52.420, the table in paragraph (e) is amended by revising 
the entry for ``Section 110(a)(2) Infrastructure Requirements for the 
2010 SO2 NAAQS'' and adding a second entry directly beneath 
that entry for ``Section 110(a)(2) Infrastructure Requirements for the 
2010 SO2 NAAQS'' to read as follows:


Sec.  52.420   Identification of plan.

* * * * *
    (e) * * *

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                                                                State
    Name of non-regulatory SIP            Applicable          submittal              EPA approval  date                   Additional  explanation
             revision                  geographic  area         date
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                                                                      * * * * * * *
Section 110(a)(2) Infrastructure    Statewide............       5/29/2013  1/22/2014, 79 FR 3506.................  Docket #: 2013-0492. This action
 Requirements for the 2010 SO2                                                                                      addresses the following CAA elements
 NAAQS.                                                                                                             of section 110(a)(2): A, B, C,
                                                                                                                    D(i)(II), D(ii), E, F, G, H, J, K,
                                                                                                                    L, and M.
Section 110(a)(2) Infrastructure    Statewide............       5/29/2013  2/6/2019, [Insert Federal Register      Docket #: 2013-0492. This action
 Requirements for the 2010 SO2                                              citation].                              addresses CAA section
 NAAQS.                                                                                                             110(a)(2)(D)(i)(I) (prongs 1 and 2)
 
                                                                      * * * * * * *
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[FR Doc. 2019-01113 Filed 2-5-19; 8:45 am]
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