[Federal Register Volume 84, Number 155 (Monday, August 12, 2019)]
[Rules and Regulations]
[Pages 39758-39761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17128]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2019-0010; FRL-9997-97-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Nonattainment New Source Review Requirements for 2008 8-Hour 
Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by Delaware. The revision 
is in response to EPA's February 3, 2017 Findings of Failure to Submit 
for various requirements relating to the 2008 8-hour ozone national 
ambient air quality standards (NAAQS). This SIP revision is specific to 
nonattainment new source review (NNSR) requirements. This action is 
being taken under the Clean Air Act (CAA).

DATES: This final rule is effective on September 11, 2019.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2019-0010. 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 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: Ms. Amy Johansen, Permits Branch 
(3AD10), Air and Radiation Division, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. 
The telephone number is (215) 814-2156. Ms. Johansen can also be 
reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On April 19, 2019 (84 FR 16426), EPA published a notice of proposed 
rulemaking (NPRM) for Delaware. In the NPRM, EPA proposed approval of 
Delaware's NNSR Certification for the 2008 8-hour ozone NAAQS. The 
formal SIP revision was submitted by the Department of Natural 
Resources and Environmental Control (DNREC) on

[[Page 39759]]

behalf of the state of Delaware on June 29, 2018. Specifically, 
Delaware certified that its existing NNSR program, covering the 
Delaware portion of the Philadelphia-Wilmington-Atlantic City, PA-NJ-
MD-DE (Philadelphia Area) nonattainment area (which includes New Castle 
County) and the entire Seaford, DE (Seaford Area) nonattainment area 
(which includes Sussex County) for the 2008 8-hour ozone NAAQS, is at 
least as stringent as the requirements at 40 CFR 51.165, as amended by 
the final rule titled ``Implementation of the 2008 National Ambient Air 
Quality Standards for Ozone: State Implementation Plan Requirements'' 
(SIP Requirements Rule), for ozone and its precursors.1 2 
See 80 FR 12264 (March 6, 2015). This SIP revision was in response to 
EPA's final 2008 8-hour ozone NAAQS Findings of Failure to Submit for 
NNSR requirements. See 82 FR 9158 (February 3, 2017).
---------------------------------------------------------------------------

    \1\ The SIP Requirements Rule addresses a range of nonattainment 
area SIP requirements for the 2008 8-hour ozone NAAQS, including 
requirements pertaining to attainment demonstrations, reasonable 
further progress (RFP), reasonably available control technology, 
reasonably available control measures, major new source review, 
emission inventories, and the timing of SIP submissions and of 
compliance with emission control measures in the SIP. The rule also 
revokes the 1997 ozone NAAQS and establishes anti-backsliding 
requirements.
    \2\ On February 16, 2018, the United States Court of Appeals for 
the District of Columbia Circuit (DC Cir. Court or Court) issued an 
opinion on the EPA's SIP Requirements Rule. South Coast Air Quality 
Mgmt. Dist. v. EPA, 882 F.3d 1138, 2018 U.S. App. LEXIS 3636 (DC 
Cir. Feb. 16, 2018). The DC Cir. Court found certain provisions from 
the SIP Requirements Rule to be inconsistent with the statute or 
unreasonable and vacated those provisions. Id. The Court found other 
parts of the SIP Requirements Rule reasonable and denied the 
petition for appeal on those provisions. Id.
---------------------------------------------------------------------------

    On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 
0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under 
EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone NAAQS is 
attained when the three-year average of the annual fourth-highest daily 
maximum 8-hour average ambient air quality ozone concentration is less 
than or equal to 0.075 ppm.
    Upon promulgation of a new or revised NAAQS, the CAA requires EPA 
to designate as nonattainment any area that is violating the NAAQS 
based on the three most recent years of ambient air quality data at the 
conclusion of the designation process. The Seaford and Philadelphia 
Areas were classified as marginal nonattainment for the 2008 8-hour 
ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2008-2010 
ambient air quality data. See 77 FR 30088. On March 6, 2015, EPA issued 
the final SIP Requirements Rule, which establishes the requirements 
that state, tribal, and local air quality management agencies must meet 
as they develop implementation plans for areas where air quality 
exceeds the 2008 8-hour ozone NAAQS. See 80 FR 12264. Areas that were 
designated as marginal ozone nonattainment areas were required to 
attain the 2008 8-hour ozone NAAQS no later than July 20, 2015, based 
on 2012-2014 monitoring data. See 40 CFR 51.1103. The Seaford Area 
attained the 2008 8-hour ozone NAAQS by July 20, 2015 and the EPA 
Administrator signed a final Determination of Attainment (DOA) on April 
11, 2016. See 81 FR 26697 (May 4, 2016). The Philadelphia Area did not 
attain the 2008 8-hour ozone NAAQS by July 20, 2015; however, the area 
did meet the CAA section 181(a)(5) criteria, as interpreted in 40 CFR 
51.1107, for a one-year attainment date extension. Id. Therefore, in 
same rulemaking action, the EPA Administrator signed a final rule 
extending the Philadelphia Area 8-hour ozone NAAQS attainment date from 
July 20, 2015 to July 20, 2016. Id.\3\
---------------------------------------------------------------------------

    \3\ On November 2, 2017, EPA approved a DOA for the 2008 8-hour 
ozone NAAQS for Philadelphia Area. This action was based on 
complete, certified, and quality assured ambient air quality 
monitoring data for the 2013-2015 monitoring period. See 82 FR 
50814. It should be noted that a DOA does not alleviate the need for 
Delaware to certify that their existing SIP approved NNSR program is 
as stringent as the requirements at 40 CFR 51.165, as NNSR applies 
in nonattainment areas until an area has been redesignated to 
attainment.
---------------------------------------------------------------------------

    Based on initial nonattainment designations for the 2008 8-hour 
ozone NAAQS, as well as the March 6, 2015 final SIP Requirements Rule, 
Delaware was required to develop a SIP revision addressing certain CAA 
requirements for the Seaford and Philadelphia Areas, and submit to EPA 
a NNSR Certification SIP or SIP revision no later than 36 months after 
the effective date of the areas designations for the 2008 8-hour ozone 
NAAQS (i.e., July 20, 2015).\4\ See 80 FR 12264 (March 6, 2015). EPA is 
approving Delaware's June 29, 2018 NNSR Certification SIP revision for 
the 2008 8-hour ozone NAAQS.
---------------------------------------------------------------------------

    \4\ Neither Delaware's obligation to submit the NNSR 
Certification SIP nor the requirements governing that submission 
were affected by the D.C. Circuit's February 16, 2018 decision on 
portions of the SIP Requirements Rule in South Coast Air Quality 
Mgmt. Dist. v. EPA.
---------------------------------------------------------------------------

II. Summary of SIP Revision and EPA Analysis

    This rulemaking action is specific to Delaware's NNSR requirements. 
NNSR is a preconstruction review permit program that applies to new 
major stationary sources or major modifications at existing sources 
located in a nonattainment area. The specific NNSR requirements for the 
2008 8-hour ozone NAAQS are located in 40 CFR 51.160 through 165.
    Delaware's SIP approved NNSR program, established in Title 7 
Delaware Administrative Code (DE Admin Code) 1125 (Requirements for 
Preconstruction Review), apply to the construction and modification of 
major stationary sources in nonattainment areas. In its June 29, 2018 
SIP revision, Delaware certified that the version of Title 7 DE Admin 
Code Section 1125 approved in the SIP is at least as stringent as the 
Federal NNSR requirements for the Seaford and Philadelphia Areas.
    In addition, on February 3, 2017, EPA found that 15 states and the 
District of Columbia failed to submit SIP revisions in a timely manner 
to satisfy certain requirements for the 2008 8-hour ozone NAAQS that 
apply to nonattainment areas and/or states in the Ozone Transport 
Region (OTR). See 82 FR 9158. As explained in that rulemaking action, 
consistent with the CAA and EPA regulations, these Findings of Failure 
to Submit established certain deadlines for the imposition of 
sanctions, if a state does not submit a timely SIP revision addressing 
the requirements for which the finding is being made, and for the EPA 
to promulgate a Federal implementation plan (FIP) to address any 
outstanding SIP requirements.
    EPA found, inter alia, that Delaware failed to submit SIP revisions 
in a timely manner to satisfy NNSR requirements for the Seaford and 
Philadelphia Areas. Delaware submitted its June 29, 2018 SIP revision 
to address the specific NNSR requirements for the 2008 8-hour ozone 
NAAQS, located in 40 CFR 51.160 through 165, as well as its obligations 
under EPA's February 3, 2017 Findings of Failure to Submit. EPA's 
analysis of how this SIP revision addresses the NNSR requirements for 
the 2008 8-hour ozone NAAQS and the Findings of Failure to Submit was 
discussed in the NPRM and will not be restated here.

III. Public Comments and EPA Response

    EPA received two sets of comments on the April 19, 2019 NPRM. See 
84 FR 16426. One set of comments was in support of EPA's proposed 
rulemaking action. With respect to the second set of comments, only one 
comment is relevant to this action and requires a response. A summary 
of the comment and EPA's response is discussed in this Section. A copy 
of the comments can be found in the docket for this rulemaking action.

[[Page 39760]]

    Comment: The commenter makes note that volatile organic compounds 
(VOC) are defined as those in 40 CFR 51.100(s), but that Delaware's 
regulations don't include the correct version of what is being defined 
as a VOC. The commenter references EPA's February 12, 2019 NPRM, where 
EPA is approving Delaware's definition change of VOC. The commenter 
also notes suggests that EPA should wait until Delaware's regulations 
match the requirements in 40 CFR 51.165 exactly before approving this 
NNSR submission and suggests EPA to look at Delaware's regulation 1125. 
Lastly, the commenter notes that changes have also been made to the 
rules governing the Prevention of Significant Deterioration (PSD) 
program and related modeling requirements.
    EPA Response: Delaware's certification applies to its NNSR program, 
not to its PSD program. The commenter's concerns related to PSD and 
related modeling are not relevant to EPA's action to approve Delaware's 
NNSR certification, and as such do not warrant consideration in the 
final rule.
    EPA finalized its approval of the NPRM that the commenter referred 
to in their comments. In that February 12, 2019 rulemaking action, EPA 
proposed approval of Delaware's revision to Section 2 of 7 DE Admin 
Code 1101, where the state updated its definition of VOC to conform to 
EPA's current definition of VOC in 40 CFR 51.100(s). EPA finalized 
approval of that action on May 31, 2019. See 84 FR 25183.
    EPA disagrees with the commenter's assertion that EPA should wait 
until Delaware's regulations match 40 CFR 51.165 exactly until it 
approves this rulemaking action. Delaware evaluated the necessary 
regulations for this rulemaking action and certified in its June 29, 
2018 SIP revision that its existing Federally-approved NNSR program is 
at least as stringent as the Federal NNSR requirements found at 40 CFR 
51.165, and based on EPA's analysis of that SIP revision, EPA agrees 
with Delaware and is moving forward to approve this rulemaking action.

IV. Final Action

    EPA is approving Delaware's June 29, 2018 SIP revision addressing 
the NNSR requirements for the 2008 ozone NAAQS for the Seaford and 
Philadelphia Areas. EPA has concluded that Delaware's submission 
fulfills the 40 CFR 51.1114 revisions requirement, meets the 
requirements of CAA sections 110 and 172 and the minimum SIP 
requirements of 40 CFR 51.165, as well as its obligations under EPA's 
February 3, 2017 Findings of Failure to Submit. See 82 FR 9158.

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 October 11, 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 pertaining to Delaware's NNSR program and the 2008 
8-hour 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: July 29, 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:


[[Page 39761]]


     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 ``2008 8-Hour Ozone Certification for Nonattainment New Source 
Review (NNSR)'' at the end of the table to read as follows:


Sec.  52.420   Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
  Name of non-regulatory SIP     Applicable geographic       State                               Additional
           revision                      area           submittal date  EPA approval date       explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
2008 8-Hour Ozone               Delaware portion of         06/29/2018  8/12/2019,
 Certification for               the Philadelphia-                       [insert Federal
 Nonattainment New Source        Wilmington-Atlantic                     Register
 Review (NNSR).                  City, nonattainment                     citation].
                                 area and the Seaford,
                                 Delaware
                                 nonattainment area.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2019-17128 Filed 8-9-19; 8:45 am]
 BILLING CODE 6560-50-P