[Federal Register Volume 84, Number 129 (Friday, July 5, 2019)]
[Rules and Regulations]
[Pages 32068-32072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14360]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2018-0825; FRL-9996-07-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware; Emissions Statements Rule Certification for the 2008 Ozone
National Ambient Air Quality Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving a state
implementation plan (SIP) revision formally submitted by the State of
Delaware. Under section 182 of the Clean Air Act (CAA), states' SIPs
must require stationary sources in ozone nonattainment areas to report
annual emissions of nitrogen oxides (NOX) and volatile
organic compounds (VOC). This SIP revision provides Delaware's
certification that its existing emissions statements program satisfies
the emissions statements requirements of the CAA for the 2008 ozone
National Ambient Air Quality Standards (NAAQS). EPA is approving
Delaware's emissions statements program certification for the 2008
ozone NAAQS as a SIP revision in accordance with the requirements of
the CAA.
DATES: This final rule is effective on August 5, 2019.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2018-0825. All documents in the docket are listed on
the https://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
[[Page 32069]]
available through https://www.regulations.gov, or please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT: Sara Calcinore, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2043. Ms. Calcinore can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Under the CAA, EPA establishes NAAQS for criteria pollutants in
order to protect human health and the environment. In response to
scientific evidence linking ozone exposure to adverse health effects,
EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm)
1-hour ozone NAAQS, in 1979. See 44 FR 8202 (February 8, 1979). The CAA
requires EPA to review and reevaluate the NAAQS every five years in
order to consider updated information regarding the effects of the
criteria pollutants on human health and the environment. On July 18,
1997, EPA promulgated a revised ozone NAAQS, referred to as the 1997
ozone NAAQS, of 0.08 ppm averaged over eight hours. See 62 FR 38855.
This 8-hour ozone NAAQS was determined to be more protective of public
health than the previous 1979 1-hour ozone NAAQS. In 2008, EPA
strengthened the 8-hour ozone NAAQS from 0.08 to 0.075 ppm. The 0.075
ppm standard is referred to as the 2008 ozone NAAQS. See 73 FR 16436
(March 27, 2008).
On May 21, 2012 and June 11, 2012, EPA designated nonattainment
areas for the 2008 ozone NAAQS. 77 FR 30088 and 77 FR 34221. Effective
July 20, 2012, New Castle County and Sussex County in Delaware were
designated as marginal nonattainment for the 2008 ozone NAAQS. New
Castle County was designated as part of the Philadelphia-Wilmington-
Atlantic City, PA-NJ-MD-DE 2008 ozone NAAQS nonattainment area, which
includes the following counties: New Castle in Delaware; Cecil in
Maryland; Atlantic, Burlington, Camden, Cape May, Cumberland,
Gloucester, Mercer, Ocean, and Salem in New Jersey; and Bucks, Chester,
Delaware, Montgomery, and Philadelphia in Pennsylvania. 40 CFR 81.308,
81.321, 81.331, and 81.339. Sussex County was designated marginal
nonattainment as the Seaford 2008 ozone NAAQS nonattainment area, which
includes only Sussex County. 40 CFR 81.308.
Section 182 of the CAA identifies plan submission requirements for
ozone nonattainment areas. Specifically, section 182(a)(3)(B) requires
that states develop and submit, as a revision to their SIP, rules which
establish annual reporting requirements for certain stationary sources.
Sources that are within ozone nonattainment areas must annually report
the actual emissions of NOX and VOC to the state. However,
states may waive this reporting requirement for classes or categories
of stationary sources that emit under 25 tons per year (tpy) of
NOX or VOC if the state provides an inventory of emissions
from these classes or categories of sources as required by CAA sections
172 and 182. See CAA section 182(a)(3)(B)(ii).
On March 6, 2015, EPA issued a final rule addressing a range of
nonattainment area SIP requirements for the 2008 ozone NAAQS, including
the emissions statements requirement of CAA section 182(a)(3)(B) (2015
final rule). 80 FR 12264. Per the preamble to EPA's 2015 final rule,
the source emissions statements requirement applies to all areas
designated nonattainment for the 2008 ozone NAAQS. See 80 FR 12264,
12291. The preamble to EPA's 2015 final rule also states that most
areas that are required to have an emissions statements program for the
2008 ozone NAAQS already have a program in place due to a nonattainment
designation for an earlier ozone NAAQS. Id. The preamble to EPA's 2015
final rule states that, ``If an area has a previously approved
emissions statement rule in force for the 1997 ozone NAAQS or the 1-
hour ozone NAAQS that covers all portions of the nonattainment area for
the 2008 ozone NAAQS, such rule should be sufficient for purposes of
the emissions statement requirement for the 2008 ozone NAAQS.'' Id. In
cases where an existing emissions statements rule is still adequate to
meet the emissions statements requirement under the 2008 ozone NAAQS,
states may provide the rationale for that determination to EPA in a
written statement for approval in the SIP to meet the requirements of
CAA section 182(a)(3)(B). Id. In this statement, states should identify
how the emissions statements requirement of CAA section 182(a)(3)(B)
are met by their existing emissions statement rule. Id.
In summary, Delaware is required to submit, as a formal revision to
its SIP, a statement certifying that Delaware's existing emissions
statements program satisfies the requirements of CAA section
182(a)(3)(B) and covers Delaware's portions of the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE 2008 ozone NAAQS nonattainment
area (i.e. New Castle County) and the Seaford 2008 ozone NAAQS
nonattainment area (i.e. Sussex County).
II. Summary of SIP Revision and EPA Analysis
On June 29, 2018, the State of Delaware, through the Delaware
Department of Natural Resources and Environmental Control (DNREC),
submitted, as a formal revision to its SIP, a statement certifying that
Delaware's existing SIP-approved emissions statements program under 7
DE Administrative Code 1117 Section 7.0 satisfies the emissions
statements requirement for the 2008 ozone NAAQS.
On April 9, 2019 (84 FR 14075), EPA published a notice of proposed
rulemaking (NPRM) for the State of Delaware. In the NPRM, EPA proposed
to approve, as a SIP revision, Delaware's June 29, 2018 emissions
statements certification as satisfying the requirements of CAA section
182(a)(3)(B) for the 2008 ozone NAAQS. The rationale for EPA's proposed
action can be found in the April 9, 2019 NPRM and will not be restated
here.
III. Public Comments and EPA Response
EPA received comments on the April 9, 2019 NPRM from three
anonymous commenters. EPA received a comment on April 11, 2019 that was
supportive of EPA's proposed action; EPA is not responding to that
comment. The other two comments and EPA's responses are discussed
below. The comments EPA received are included in the docket for this
action, available online at www.regulations.gov, Docket ID: EPA-R03-
OAR-2018-0825.
Commenter 1: On April 9, 2019, EPA received an anonymous comment on
the NPRM. The commenter emphasizes the importance of emissions
reporting of NOX and VOC in ozone nonattainment areas. The
commenter expresses concern regarding states' ability to waive the
emissions reporting requirement ``if they emit under 25 tons per year
of NOX and/or VOC.'' The commenter states that the purpose
of emissions reporting is to understand the total amount of emissions
in a state ``no matter how little they emit'' and suggests that this
would assist with the identification and resolution of air quality
problems. The commenter also expresses concern that if a state has
waived the emissions statements requirements and emissions in a state
are low at the beginning of the year and
[[Page 32070]]
then increase, it would take a year to identify the increase in
emissions which may delay potential actions by EPA.
EPA Response: Section 182(a)(3)(B)(ii) of the CAA permits states to
waive the emissions statements requirement of CAA section
183(a)(3)(B)(i) for any class or category of stationary sources which
emit less than 25 tpy of NOX or VOC if the state provides an
inventory of emissions from these classes or categories of sources as
required by CAA sections 172 and 182. As discussed in the NPRM, Section
7.1 of Delaware's emissions statements provisions under 7 DE
Administrative Code 1117 Section 7.0 states that Delaware may, with EPA
approval, ``waive the emissions statements requirements for classes or
categories of stationary sources with facility-wide actual emissions of
less than 25 tpy of NOX or VOCs if the class or category is
included in the base year and periodic ozone SIP emission inventories,
and the actual emissions were calculated using EPA-approved emission
factors or other methods acceptable to the EPA.'' This is consistent
with CAA section 182(a)(3)(B)(ii) and is more stringent than the
requirements of the CAA as it requires EPA approval to waive the
emissions statements requirement. Therefore, EPA continues to find that
Delaware's emissions statements provisions under 7 DE Administrative
Code 1117 Section 7.0 meet the requirements of CAA section
182(a)(3)(B)(ii) for the 2008 ozone NAAQS.
In addition, EPA disagrees with the commenter that permitting
states to waive the emissions statements requirement for classes or
categories of sources that emit less than 25 tpy of NOX or
VOC will prevent EPA from obtaining data regarding a state's total
emissions of NOX and VOC or delay EPA in identifying
increases in emissions. As stated previously, states are required by
CAA section 182(a)(3)(B) to have an emissions reporting program (also
referred to as an ``emissions statements'' program) requiring sources
located in ozone nonattainment areas that emit 25 tpy or more of
NOX or VOC to annually report actual emissions to the State
(emphasis added). The emissions statements requirement of CAA section
182(a)(3)(B) is separate from the requirements for the state to submit
emissions data to EPA. States are required to submit emissions data to
EPA under the Air Emissions Reporting Rule (AERR). 40 CFR, part 51,
subpart A.\1\ The AERR requires states to submit to EPA complete and
comprehensive data on emissions from certain point, nonpoint, onroad,
and nonroad sources triennially. In addition, the AERR requires annual
reporting for larger, Type A, point sources.\2\ Pursuant to 40 CFR
51.20, all anthropogenic stationary sources must be included in the
emission inventory as either point or nonpoint sources; if a facility's
emissions are too low to be considered a ``point source'', the
emissions must be reported as nonpoint sources.\3\ Therefore, the AERR
provides for the reporting of complete and comprehensive data on a
state's total emissions of NOX and VOC by the state to EPA.
While states may use data submitted by sources through their emissions
statements program to satisfy the AERR, the AERR is separate from the
emissions statements requirement of CAA section 182(a)(3)(B).
Therefore, the waiving of a class or category of source from a state's
emissions statements program does not affect the state's obligation to
report emissions from these sources to EPA under the AERR.
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\1\ For more information on the AERR, see ``Emissions Inventory
Guidance for Implementation of Ozone and Particulate Matter National
Ambient Air Quality Standards (NAAQS) and Regional Haze
Regulations,'' May 2017, included in the docket for this rulemaking
available online at https://www.regulations.gov, Docket ID: EPA-R03-
OAR-2018-0825.
\2\ The emission thresholds by pollutant for treatment of point
sources can be found in Table 1 of Appendix A of the AERR at 40 CFR,
part 51, subpart A.
\3\ Pursuant to 40 CFR 51.15(b), sources on tribal lands are
excluded from the AERR.
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In addition, pursuant to CAA section 182(a)(3)(B)(ii), states may
only waive the emissions statements requirement for any class or
category of sources that emit less than 25 tpy of NOX or VOC
if the state includes that class or category of sources in the base
year and periodic inventories required by CAA section 172(c)(3),
182(a)(1), and 182(a)(3)(A) and emissions are calculated using emission
factors established by EPA or other methods acceptable to EPA (emphasis
added).\4\ EPA uses the emissions data submitted by the states under
the AERR to build the National Emissions Inventory (NEI), which in turn
may be used by the states for their base year and periodic emission
inventories.\5\ A state's waiver of the emissions statements
requirement for a class or category of sources that emit less than 25
tpy of NOX or VOC does not waive the requirement for the
sources to be captured in the state's emissions inventory. Sources will
be captured as either point or nonpoint sources in the emission
inventories regardless of whether a state has waived them from their
emissions statements program. Therefore, EPA will still have
comprehensive data on emissions in a state that meets the emissions
inventory requirements of the CAA. Regarding the concern about data not
being submitted regularly enough, CAA section 182(a)(3)(B) only
requires that ``[s]ubsequent statements shall be submitted at least
every year thereafter.'' Therefore, Delaware's requirement for sources
to submit emissions statements annually complies with the requirements
of the CAA.
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\4\ See ``Draft Guidance on the Implementation of an Emission
Statement Program'', July 1992, included in the docket for this
rulemaking available online at https://www.regulations.gov, Docket
ID: EPA-R03-OAR-2018-0825.
\5\ The NEI is a comprehensive and detailed estimate of air
emissions of criteria pollutants, criteria precursors, and hazardous
air pollutants from air emissions sources. The NEI is released every
three years based primarily upon data provided by State, Local, and
Tribal air agencies for sources in their jurisdictions and
supplemented by data developed by EPA.
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Commenter 2: EPA received an anonymous comment on April 19, 2019
inquiring how EPA's proposed action in the April 9, 2019 NPRM will
affect corporations incorporated in Delaware and if these corporations
will be required to change their business practices as a result of this
rulemaking.
EPA Response: EPA's approval of Delaware's emissions statements
certification for the 2008 ozone NAAQS will not change the existing
emission statement requirements for corporations incorporated in
Delaware. EPA's April 9, 2019 NPRM proposed to approve, as a SIP
revision, Delaware's certification that the State's existing, SIP-
approved emissions statements provisions under 7 DE Administrative Code
1117 Section 7.0 continue to satisfy the emissions statements
requirements of CAA section 182(a)(3)(B) for the 2008 ozone NAAQS.
Delaware's existing emissions statements provisions were first approved
by EPA into the Delaware SIP on April 29, 1996 (61 FR 7415) for a
previous NAAQS and are therefore already effective. EPA's NPRM only
proposed to find that these existing, unchanged provisions continue to
satisfy the requirements of CAA section 182(a)(3)(B) for the 2008 ozone
NAAQS. Because Delaware's emissions statement requirements are
unchanged, this SIP approval will not add any additional requirements
for sources in Delaware. Therefore, EPA's approval of Delaware's
emissions statements certification for the 2008 ozone NAAQS will not
change the previously applicable emissions statement requirements for
emission sources located in Delaware and therefore will not likely
cause sources in Delaware to change their business practices. To the
extent that the commenter is asking whether
[[Page 32071]]
companies incorporated in Delaware but with facilities outside of
Delaware that emit NOX or VOC will be affected by Delaware's
emission statement regulation, the answer is no. Sources outside of
Delaware will be required to report their emissions of NOX
and VOC according to the regulations of the state in which that source
is located.
IV. Final Action
EPA is approving, as a SIP revision, the State of Delaware's June
29, 2018 emissions statements certification for the 2008 ozone NAAQS as
approvable under CAA section 182(a)(3)(B). Delaware's emissions
statements certification certifies that Delaware's existing SIP-
approved emissions statements program under 7 DE Administrative Code
1117 Section 7.0 satisfies the requirements of CAA section 182(a)(3)(B)
for the 2008 ozone NAAQS.
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 September 3, 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 approving Delaware's emissions statements
certification for the 2008 ozone NAAQS may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: June 24, 2019.
Diana Esher,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart I-- Delaware
0
2. In Sec. 52.420, the table in paragraph (e) is amended by adding the
entry ``Emissions Statements Rule Certification for the 2008 Ozone
NAAQS'' at the end of the table to read as follows:
Sec. 52.420 Identification of plan.
* * * * *
(e) * * *
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State
Name of non-regulatory SIP Applicable geographic submittal EPA approval date Additional
revision area date explanation
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* * * * * * *
Emissions Statements Rule Delaware's portions of 06/29/2018 07/05/2019, Certification that
Certification for the 2008 the Philadelphia- [Insert Federal Delaware's SIP-
Ozone NAAQS. Wilmington-Atlantic Register approved regulations
City, PA-NJ-MD-DE citation]. under 7 DE
2008 ozone NAAQS Administrative Code
nonattainment area 1117 Section 7.0
(i.e. New Castle Emission Statement
County) and the meet the emissions
Seaford 2008 ozone statements
NAAQS nonattainment requirements of CAA
area (i.e. Sussex section 182(a)(3)(B)
County). for the 2008 ozone
NAAQS.
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[FR Doc. 2019-14360 Filed 7-3-19; 8:45 am]
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