[Federal Register Volume 86, Number 91 (Thursday, May 13, 2021)]
[Rules and Regulations]
[Pages 26179-26181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10039]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2021-0069; FRL-10023-62-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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the Delaware Department 
of Natural Resources and Environmental Control (DNREC). The revision 
fulfills Delaware's nonattainment new source review (NNSR) SIP element 
requirement for the 2015 8-hour ozone National Ambient Air Quality 
Standard (NAAQS). EPA is approving these revisions to the Delaware SIP 
in accordance with the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on June 14, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2021-0069. 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: Amy Johansen, Permits Branch (3AD10), 
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:

I. Background

    On March 24, 2021 (86 FR 15634), EPA published a notice of proposed 
rulemaking (NPRM) for the State of Delaware. In the NPRM, EPA proposed 
approval of Delaware's certification 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). The formal SIP revision was submitted by Delaware 
on August 3, 2020.

II. Summary of SIP Revision and EPA Analysis

    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.\1\ 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 
for NNSR.
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    \1\ 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 
submittal, and they were not discussed in this rule.\2\
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    \2\ 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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[[Page 26180]]

    Other specific requirements and the rationale for EPA's proposed 
action are explained in the NPRM and will not be restated here. One 
supportive comment was received for this action, which can be found in 
Docket ID Number EPA-R03-OAR-2021-0069.

III. Final Action

    For the reasons stated in the NPRM, EPA has concluded that 
Delaware's submission fulfills the 40 CFR 51.1114 revision 
requirements, meets the requirements of CAA sections 110 and 172 and 
the minimum SIP requirements of 40 CFR 51.165. EPA is approving 
Delaware's August 3, 2020 SIP revision addressing the NNSR requirements 
for the 2015 8-hour ozone NAAQS for the Philadelphia Area to the 
Delaware SIP.

IV. 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);
     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 July 12, 2021. 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 2015 
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, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: May 7, 2021.
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 an 
entry for ``2015 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) * * *

[[Page 26181]]



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  Name of non-regulatory SIP       Applicable     State submittal    EPA approval
           revision              geographic area        date             date           Additional explanation
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                                                  * * * * * * *
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2015 8-Hour Ozone               Delaware portion        08/03/20   5/13/21, [Insert
 Certification for               of the                             Federal
 Nonattainment New Source        Philadelphia-                      Register
 Review (NNSR).                  Wilmington-                        citation].
                                 Atlantic City
                                 nonattainment
                                 area (which
                                 includes New
                                 Castle County).
 
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[FR Doc. 2021-10039 Filed 5-12-21; 8:45 am]
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