[Federal Register Volume 86, Number 60 (Wednesday, March 31, 2021)]
[Proposed Rules]
[Pages 16683-16685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06414]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0554; FRL-10021-57-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Delaware; Emissions Statement Certification for the 2015 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 formally submitted 
by the Delaware Department of Natural Resources and Environmental 
Control (DNREC). Under the Clean Air Act (CAA), a state's SIP must 
include an emission statement regulation that requires stationary 
sources in ozone nonattainment areas classified as marginal or above to 
report annual emissions of nitrogen oxides (NOX) and 
volatile organic compounds (VOC). This SIP revision provides Delaware's 
certification that its existing emissions statement program satisfies 
the emissions statement requirements of the CAA for the 2015 ozone 
national ambient air quality standard (NAAQS). EPA is proposing to 
approve Delaware's emissions statement program certification for the 
2015 ozone NAAQS as a SIP revision in accordance with the requirements 
of the CAA.

DATES: Written comments must be received on or before April 30, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2020-0554 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 FUTHER 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: Serena Nichols, 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-
2053. Ms. Nichols 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. 62 FR 38856. 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. See 73 FR 
16436 (March 27, 2008). In 2015, EPA further lowered the 8-hour ozone 
NAAQS from 0.075 ppm to 0.070 ppm. The 0.070 ppm standard is referred 
to as the 2015 ozone NAAQS. See 80 FR 65452 (October 26, 2015).
    On June 4, 2018 and July 25, 2018, EPA designated nonattainment 
areas for the 2015 ozone NAAQS. 83 FR 25776 and 83 FR 35136. Effective 
August 3, 2018 (83 FR 25776, June 4, 2018), New Castle County, 
Delaware, was designated as marginal nonattainment for the 2015 ozone 
NAAQS. New Castle County was designated as part of the Philadelphia-
Wilmington-Atlantic City, PA-NJ-MD-DE 2015 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. See 40 CFR 
81.308, 81.321, 81.331, and 81.339. Delaware's Kent and Sussex Counties 
were designated as attainment areas for the same 2015 Ozone NAAQS. See 
40 CFR 81.308.
    Section 182 of the CAA identifies plan submissions and requirements 
for ozone nonattainment areas. Specifically, CAA section 182(a)(3)(B) 
requires that states develop and submit, as a revision to their SIP, 
rules which establish annual emission 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 requirement for 
sources that emit under 25 tons per year (tpy) of NOX or VOC 
if the state provides an inventory of emissions from such class or 
category of sources as required by CAA sections 172 and 182. See CAA 
section 182(a)(3)(B)(ii).
    EPA published guidance on source emissions statements in a July 
1992 memorandum titled, ``Guidance on the Implementation of an Emission 
Statement Program'' \1\ and in a March 14, 2006 memorandum titled, 
``Emission Statement Requirements Under 8-hour Ozone NAAQS 
Implementation'' (2006 memorandum).\2\ In addition, on December 6, 
2018, EPA issued a final rule addressing a range of nonattainment area 
SIP requirements for the 2015 ozone NAAQS, including the emission 
statement requirements of CAA section 182(a)(3)(B) (2018 final rule). 
83 FR 62998, codified at 40 CFR part 51, subpart CC. The 2006 
memorandum clarified that the emissions statement requirement of CAA 
section 182(a)(3)(B) was applicable to all areas designated 
nonattainment

[[Page 16684]]

for the 1997 ozone NAAQS and classified as marginal or above under 
subpart 2, part D, title I of the CAA. Per EPA's 2018 final rule, the 
emissions statement requirement also applies to all areas designated 
nonattainment for the 2015 ozone NAAQS. 83 FR 62998, 63023 (December 6, 
2018).
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    \1\ July 1992 memorandum titled, ``Guidance on the 
Implementation of an Emission Statement Program'' is available 
online at https://www.epa.gov/sites/production/files/2015-09/documents/emission_statement_program_zypdf.pdf. Docket ID: EPA-R03-
QAR-2020-0554.
    \2\ March 14, 2006 memorandum titled, ``Emission Statement 
Requirements Under 8-hour Ozone NAAQS Implementation'' is available 
online at https://www.epa.gov/sites/production/files/2015-07/documents/8hourozone_naaqs_031406.pdf, Docket ID: EPA-R03-OAR-2020-
0554.
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    According to the preamble to EPA's 2018 final rule, most areas that 
are required to have an emissions statement program for the 2015 ozone 
NAAQS already have one in place due to a nonattainment designation for 
an earlier ozone NAAQS. 83 FR 62998, 63001 (December 6, 2018). EPA's 
2018 final rule states that, ``Many air agencies already have 
regulations in place to address certain nonattainment area planning 
requirements due to nonattainment designations for a prior ozone NAAQS. 
Air agencies should review any existing regulation that was previously 
approved by the EPA to determine whether it is sufficient to fulfill 
obligations triggered by the revised ozone NAAQS.'' Id. In cases where 
an existing emissions statement rule is still adequate to meet the 
emissions statement requirement under the 2015 ozone NAAQS, states may 
provide the rationale for that determination to EPA in a written 
statement for approval into the SIP to meet the requirements of CAA 
section 182(a)(3)(B). 83 FR 62998, 63002 (December 6, 2018). In this 
statement, states should identify how the emissions statement 
requirements of CAA section 182(a)(3)(B) are met by their existing 
emissions statement rule. Id. In summary, Delaware can submit, as a 
formal revision to its SIP, a statement certifying that the State's 
existing emissions statement program satisfies the requirements of CAA 
section 182(a)(3)(B) and covers the State's portion of the 
Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment area 
for the 2015 ozone NAAQS.

II. Summary of SIP Revision and EPA Analysis

    On August 3, 2020, Delaware, through DNREC, submitted as a formal 
SIP revision, a statement certifying that Delaware's existing SIP-
approved emissions statement program satisfies the emissions statements 
requirements for the 2015 ozone NAAQS and is at least as stringent as 
the requirements of CAA section 182(a)(3)(B). The provisions that 
implement Delaware's emissions statements program are under 7 DE 
Administrative Code 1117 Section 7.0 Emission Statement and were 
approved by EPA into the Delaware SIP on April 29, 1996 (61 FR 7415, 
February 28, 1996). See 40 CFR 52.420(c). Table 1 summarizes Delaware's 
emissions statements provisions and the corresponding CAA section 
182(a)(3)(B) requirements.

    Table 1--Delaware Emissions Statements Provisions and CAA Section
                        182(a)(3)(B) Requirements
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      CAA Section 182(a)(3)(B) \3\        7 DE Administrative Code 1117
              requirement                    Section 7.0 requirement
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182(a)(3)(B)(i)--For marginal            7 DE Admin Code 1117 Section
 nonattainment areas, the State shall     7.1--Emissions statements
 submit a SIP revision to require that    requirements apply to all
 the owner or operator of each            stationary sources located in
 stationary source of NOX or VOC          an ozone nonattainment area
 provide the State with a statement for   that emit NOX or VOC. This
 classes or categories of sources         would include marginal and
 showing the actual emissions of NOX      above non-attainment areas.
 and VOC from that source.
                                         7 DE Admin Code 1117 Section
                                          7.2--Emissions statements are
                                          required to include the
                                          following information: Source
                                          identification information,
                                          operating data, actual
                                          emissions data, control
                                          equipment information, and
                                          process rate information.
182(a)(3)(B)(i)--Emissions statements    7 DE Admin Code 1117 Section
 are required to be submitted annually.   7.3--subject sources must
                                          submit to DNREC their annual
                                          emissions statements by April
                                          30 for the preceding calendar
                                          year. DNREC may require more
                                          frequent emissions statements
                                          if required by EPA or if more
                                          frequent analysis of data is
                                          necessary to implement the
                                          requirements of Title 7,
                                          Chapter 60. Environmental
                                          Control of the Delaware Code
                                          (7 Del.C. Chapter 60).
182(a)(3)(B)(i)--Emissions statements    7 DE Admin Code 1117 Section
 shall contain a certification that the   7.2--Each emissions statement
 information contained in the statement   shall include a certification
 is accurate to the best knowledge of     of the data to ensure that the
 the individual certifying the            information contained in the
 statement.                               statement is accurate to the
                                          best knowledge of the
                                          individual certifying the
                                          statement, who shall be an
                                          official of the facility and
                                          will take legal responsibility
                                          for the emissions statement's
                                          accuracy.
182(a)(3)(B)(ii)--The State may waive    7 DE Admin Code 1117 Section
 the requirements for emissions           7.1--DNREC may, with EPA
 statements for any class or category     approval, waive the emissions
 of stationary sources which emit less    statements requirements for
 than 25 tpy of NOX or VOC if the State   classes or categories of
 provides an inventory of emissions       stationary sources with
 from such class or category of sources   facility-wide actual emissions
 as required by CAA section 172 and 182.  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.
------------------------------------------------------------------------

    EPA's review of Delaware's submittal finds Delaware's existing, 
SIP-approved emissions statement provisions under 7 DE Administrative 
Code 1117 Section 7.0 satisfy the emission statement requirements of 
CAA section 182(a)(3)(B) for stationary sources located in marginal or 
above nonattainment areas in Delaware, including such sources in New 
Castle County, for the 2015 ozone NAAQS. Pursuant to CAA section 
182(a)(3)(B)(i), Delaware must require annual emissions statements from 
stationary sources of NOX or VOC located in marginal 
nonattainment areas. These emissions statements must be certified by an 
official of the facility. As shown in Table 1, 7 DE Administrative Code 
1117 Section 7.1 requires that all stationary sources of NOX 
and VOC located in an ozone nonattainment area submit emissions 
statements to DNREC, except for those with actual emissions of less 
than 25 tpy of NOX or VOC as permitted by CAA section 
182(a)(3)(B). EPA finds Section 7.1 satisfies the requirements of CAA 
section 182(a)(3)(B)(i) as it requires

[[Page 16685]]

that stationary sources located in ozone nonattainment areas in the 
State, including Delaware's marginal nonattainment areas for the 2008 
ozone NAAQS, submit emission statements. In addition, 7 DE 
Administrative Code 1117 Section 7.2 requires emissions statements be 
certified by and official of the facility and Section 7.3 requires 
emissions statements be submitted annually on April 30. EPA proposes to 
determine that these provisions satisfy the requirements of CAA section 
182(a)(3)(B)(i) for the 2015 ozone NAQQS as they require emissions 
statements be certified and submitted annually.
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    \3\ Section 182 of the CAA sets out a graduated control program 
for ozone nonattainment areas. Section 182(a) sets out requirements 
applicable in marginal ozone nonattainment areas, which are also 
applicable by sections 182 (b), (c), (d), and (e) to all other ozone 
nonattainment areas. See 2015 memorandum titled ``Emission Statement 
Requirement Under 8-hour Ozone NAAQS Implementation,'' available 
online at https://www.epa.gov/sites/production/files/2015-07/documents/8hourozone_naaqs_031406.pdf, Docket ID: EPA-R03-OAR-2020-
0554.
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    EPA also proposes to determine that Delaware's emissions thresholds 
for stationary sources that are required to submit an emissions 
statement meet the threshold requirements of CAA section 
182(a)(3)(B)(ii). As discussed previously, pursuant to CAA section 
182(a)(3)(B)(ii), states may waive emissions statements requirements 
for classes or categories of stationary sources that emit less than 25 
tpy of NOX or VOC if the state provides an inventory of 
emissions from such classes or categories of sources as required by CAA 
section 172 and 182. As shown in Table 1, 7 DE Administrative Code 1117 
Section 7.1 waives, with EPA approval, the requirement for emissions 
statements for classes or categories of stationary sources with 
facility-wide actual emissions of less than 25 tpy of NOX or 
VOC if the class or category is included in the base year and periodic 
ozone emission inventories. Delaware does provide emissions inventories 
that include stationary sources in nonattainment areas that emit less 
than 25 tpy of NOX or VOC, as required by CAA sections 
172(c)(3) and 182(b)(3)(B)(ii). Therefore, EPA finds the emissions 
thresholds of 7 DE Administrative Code 1117 Section 7.1 are consistent 
with CAA section 182(a)(3)(B)(ii).
    EPA has determined that the SIP-approved provisions under 7 DE 
Administrative Code 1117 Section 7.0 satisfy the requirements of CAA 
section 182(a)(3)(B) for the 2015 ozone NAAQS. Therefore, EPA is 
proposing to approve, as a SIP revision, the State of Delaware's, 
August 3, 2020 emissions statements certification for the 2015 ozone 
NAAQS as approvable under CAA section 182(a)(3)(B).

III. Proposed Action

    EPA is proposing to approve, as a SIP revision, the State of 
Delaware's August 3, 2020 emissions statements certification for the 
2015 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 2015 ozone NAAQS. 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 EPA 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because it is not a significant regulatory 
action 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 proposed rulemaking, in which EPA is proposing 
approval of Delaware's certification that its existing emission 
statement program satisfies the emission statement requirements of the 
CAA for the 2015 ozone NAAQS, 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, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: March 24, 2021.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2021-06414 Filed 3-30-21; 8:45 am]
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