[Federal Register Volume 86, Number 55 (Wednesday, March 24, 2021)]
[Proposed Rules]
[Pages 15634-15636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05759]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2021-0069; FRL-10021-35-Region 3]


Air Plan Approval; Delaware; Nonattainment New Source Review 
Requirements for 2015 8-Hour Ozone National Ambient Air Quality 
Standard

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 
Delaware Department of Natural Resources and Environmental Control 
(DNREC). This SIP revision will fulfill Delaware's nonattainment new 
source review (NNSR) SIP element requirement for the 2015 8-hour ozone 
National Ambient Air Quality Standard (NAAQS). This action is being 
taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before April 23, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2021-0069 at https://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 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 https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Amy Johansen, Permits Branch (3AD10),

[[Page 15635]]

Air & 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: On August 3, 2020, DNREC submitted on behalf 
of the state of Delaware a formal SIP revision, requesting EPA's 
approval of its NNSR Certification for the 2015 8-hour ozone NAAQS. 
Delaware is certifying 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) for the 2015 8-hour ozone NAAQS, is at least as stringent as 
the requirements at 40 Code of Federal Regulations (CFR) 51.165, as 
amended by the final rule titled ``Implementation of the 2015 National 
Ambient Air Quality Standards for Ozone: Nonattainment Area State 
Implementation Plan Requirements'' (SIP Requirements Rule), for ozone 
and its precursors. See 83 FR 62998 (December 6, 2018).

I. Background

    On October 1, 2015, EPA promulgated a revised 8-hour ozone NAAQS of 
0.070 parts per million (ppm). 80 FR 65292 (October 26, 2015). Under 
EPA's regulations at 40 CFR 50.19, the 2015 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 0.070 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 Philadelphia Area was 
classified as marginal nonattainment for the 2015 8-hour ozone NAAQS on 
June 4, 2018 (effective August 3, 2018) using 2014-2016 ambient air 
quality data. 83 FR 25776. On December 6, 2018, 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 
2015 8-hour ozone NAAQS. 83 FR 62998 (December 6, 2018). Areas that 
were designated as marginal ozone nonattainment areas are required to 
attain the 2015 8-hour ozone NAAQS no later than August 3, 2021. 40 CFR 
51.1303 and 83 FR 10376 (March 9, 2018).
    Based on initial nonattainment designations for the 2015 8-hour 
ozone NAAQS, as well as the December 6, 2018 final SIP Requirements 
Rule, Delaware was required to develop a SIP revision addressing 
specific CAA requirements for the Philadelphia Area, and submit to EPA 
a NNSR Certification SIP or SIP revision no later than 36 months after 
the effective date of area designations for the 2015 8-hour ozone NAAQS 
(i.e., August 3, 2021). See 83 FR 62998 (December 6, 2018). In this 
action, EPA is only proposing to approve Delaware's August 3, 2020 NNSR 
Certification SIP revision.\1\ EPA's analysis of how this SIP revision 
addresses the NNSR requirements for the 2015 8-hour ozone NAAQS is 
provided in Section II of this rulemaking action.
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    \1\ In addition to certifying its NNSR program, DNREC's August 
3, 2020 SIP submittal contains information certifying its Emission 
Statement Program and requirements for reasonable available control 
technology (RACT). While DNREC's submittal contains information 
regarding these other requirements, each requirement was submitted 
as standalone SIP revisions for separate EPA action.
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II. Summary of SIP Revision and EPA Analysis

    This rulemaking 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.\2\ The specific NNSR requirements for the 
ozone NAAQS are codified at 40 CFR 51.160-165.
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    \2\ See CAA sections 172(c)(5), 173 and 182.
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    The minimum SIP requirements for NNSR permitting programs for the 
2015 8-hour ozone NAAQS are set forth in 40 CFR 51.165. These NNSR 
program requirements include those promulgated in the ``Phase 2 Rule'' 
implementing the 1997 8-hour ozone NAAQS (70 FR 71611 (November 29, 
2005)), the 2008 Ozone NAAQS SIP implementation Rule (80 FR 12264, 
March 6, 2015) and the 2015 SIP Requirements Rule (83 FR 62998, 
December 6, 2018). Under the Phase 2 Rule, the SIP for each ozone 
nonattainment area must contain NNSR provisions that: Set major source 
thresholds for oxides of nitrogen (NOX) and volatile organic 
compounds (VOC) pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1) and (2); 
classify physical changes as a major source if the change would 
constitute a major source by itself pursuant to 40 CFR 
51.165(a)(1)(iv)(A)(3); consider any significant net emissions increase 
of NOX as a significant net emissions increase for ozone 
pursuant to 40 CFR 51.165(a)(1)(v)(E); consider certain increases of 
VOC emissions in extreme ozone nonattainment areas as a significant net 
emissions increase and a major modification for ozone pursuant to 40 
CFR 51.165(a)(1)(v)(F); set significant emissions rates for VOC and 
NOX as ozone precursors pursuant to 40 CFR 
51.165(a)(1)(x)(A)-(C) and (E); contain provisions for emissions 
reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)-(2); 
provide that the requirements applicable to VOC also apply to 
NOX pursuant to 40 CFR 51.165(a)(8); and set offset ratios 
for VOC and NOX pursuant to 40 CFR 51.165(a)(9).
    Delaware's SIP approved NNSR program, established in Title 7 
Delaware Administrative Code (DE Admin Code) 1125 (Requirements for 
Preconstruction Review), applies to the construction and modification 
of major stationary sources in nonattainment areas. In its August 3, 
2020 SIP revision, Delaware certifies 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 Philadelphia Area.\3\ EPA last 
approved Delaware's major NNSR program as being consistent with Federal 
NNSR requirements on August 12, 2019. 84 FR 39758 (August 12, 2019). In 
that action, EPA approved DNREC's 2008 Ozone Certification SIP 
revision, which is analogous to EPA's proposed approval of this action. 
Since EPA's August 12, 2019 approval, DNREC has made one change to its 
regulations (related to EPA's modeling guidance), which EPA approved 
into DNREC's SIP on May 1, 2020. 85 FR 25307. Approval of that action, 
which revised Prevention of Significant Deterioration (PSD) provisions, 
does not impact DNREC's certification or EPA's proposed approval of 
DNREC's August 3, 2020 SIP submittal.
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    \3\ On October 20, 2016, EPA disapproved a proposed SIP revision 
that sought to include additional ERC provisions, adopted by 
Delaware on December 11, 2016, into the Delaware SIP, specifically, 
7 DE Admin Code 1125 Sections 2.5.5 and 2.5.6. 81 FR 72529. Since 
EPA disapproved these provisions, the previously approved provisions 
that EPA approved into Delaware's SIP on October 2, 2012 remain 
applicable Federal requirements. 77 FR 60053.
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    Delaware has chosen not to include certain optional NNSR provisions 
that EPA could approve, pertaining to emissions change of VOC in 
extreme nonattainment areas and emission reduction credits. Delaware's 
choice not to include these provisions does not affect EPA's 
determination regarding the approvability of its August 3, 2020

[[Page 15636]]

submittal, and they will not be discussed in this rulemaking.\4\
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    \4\ DNREC provided information regarding anti-backsliding in its 
August 3, 2020 SIP submittal to EPA, which was not a requirement of 
EPA's 2015 Ozone SIP Requirements Rule. See 83 FR 62998 (December 6, 
2018). EPA noted in the 2015 Ozone SIP Requirements Rule that it 
would address anti-backsliding in a future rulemaking action; 
therefore, EPA will not be acting on anything related to anti-
backsliding in this action.
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III. Proposed Action

    EPA's review of this material indicates that Delaware's submission 
fulfills the 40 CFR 51.1114 revision requirement, meets the 
requirements of CAA sections 110 and 172 and the minimum SIP 
requirements of 40 CFR 51.165. EPA is proposing to approve the 
Delaware's SIP revision addressing the NNSR requirements for the 2015 
8-hour ozone NAAQS for the Philadelphia Area, which was submitted on 
August 3, 2020. EPA is soliciting public comments on the issues 
discussed in this document. These comments will be considered before 
taking final action.

IV. 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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, approving Delaware's 20015 8-hour 
ozone NAAQS Certification SIP revision for NNSR, 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, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate Matter, Transportation, Volatile organic compounds.

    Dated: March 15, 2021
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2021-05759 Filed 3-23-21; 8:45 am]
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