[Federal Register Volume 87, Number 19 (Friday, January 28, 2022)]
[Proposed Rules]
[Pages 4528-4530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01808]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0204; FRL-9440-01-R3]


Air Plan Approval; Delaware; Revision of Regulation for Sulfur 
Content of Fuel Oil

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 
State of Delaware. This revision pertains to the reduction of the 
maximum allowable sulfur content limit for distillate fuels, from a 
current limit of 3,000 parts per million (ppm) (0.3% by weight) to 15 
ppm (0.0015% by weight) and residential fuels from a current limit of 
1.0% by weight to 0.5% by weight. This revision also adds requirements 
for sampling and testing along with certification and recordkeeping. 
Additionally, start up, shut down and malfunction provisions that were 
previously included in the Delaware SIP have been removed in this 
revision. EPA is proposing to determine that such removal corrects a 
deficiency identified in the June 12, 2015, SIP call issued to 
Delaware. This action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before February 28, 
2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2014-0204 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: Mallory Moser, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. The telephone number is 215-814-2030. 
Ms. Moser can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: On July 10, 2013, the Delaware Department of 
Natural Resources and Environmental Control (DNREC) submitted a 
revision to the Delaware SIP which comprises revisions to Title 7 of 
Delaware's Administrative Code (7 DE Admin. Code) 1108--Sulfur Dioxide 
Emissions from Fuel Burning Equipment. The revision to 7 DE Admin. Code 
1108 will reduce the amount of sulfur in fuel oils used in fuel burning 
units.\1\ The revised regulation also establishes the date of 
compliance and adds necessary record keeping and recording provisions 
to ensure compliance with the regulation. The revision removes start 
up, shut down and malfunction provisions that were previously included 
in the Delaware SIP. On August 19, 2016, EPA received a supplemental 
letter from DNREC withdrawing a portion of Section 3.0 of 7 DE Admin. 
Code 1108 from the July 10, 2013, SIP submittal subject to EPA's 
review. The portion removed from the 2013 submittal is the last 
sentence of Section 3.0 which states, ``In order to employ an emission 
control rather than sulfur content limits as a means of complying with 
this Regulation, an owner or operator of fuel burning equipment must 
demonstrate to the Department in advance that the equivalent emission 
will be achieved.'' This provision will be retained as a State 
enforceable only requirement.\2\ Delaware's August 19, 2016, letter is 
available in the docket for this

[[Page 4529]]

rulemaking and online at www.regulations.gov.
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    \1\ A ``fuel burning unit'' is defined as ``each unit, or any 
combination of units discharging to a common stack used for the 
burning of fuel or other combustible material for the primary 
purpose of utilizing the thermal energy released.'' This definition 
is included in the Delaware SIP at 40 CFR 52.420(c).
    \2\ Although this provision remains in the underlying Delaware 
regulations, because Delaware withdrew this provision from its SIP 
revision, it is not and will not be incorporated into the Delaware 
SIP. Consequently, EPA would not recognize any alternate emissions 
control approved by Delaware pursuant to this provision as a means 
of complying with the federally approved SIP.
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I. Background

    The revision consists of an amendment to the Delaware SIP to reduce 
the maximum allowable sulfur content limit for distillate and 
residential fuels. If the SIP revision were approved, the sulfur 
content limit for distillate fuel would be lowered to 15 ppm by weight. 
The sulfur content limit for a residential fuel would be lowered to 
0.5% by weight. For any other fuel, the sulfur content would remain 
1.0% by weight. The combustion of sulfur-containing fuel oil releases 
sulfur dioxide (SO2) emissions, which contribute to the 
formation of regional haze and fine particulate matter 
(PM2.5), all of which impact the environment and human 
health. Regional haze impairs visibility through scattering and 
absorption of light. PM2.5 pollution exposure has been 
linked to a variety of health problems. In addition to improving public 
health and the environment, decreased emissions of SO2 will 
contribute to the attainment or maintenance, or both, of the 
SO2 and PM2.5 national ambient air quality 
standards (NAAQS).
    In addition, the July 10, 2013, SIP submission partially responds 
to a SIP call issued by EPA to address startup, shutdown and 
malfunction (SSM) events which are contrary to the CAA and existing EPA 
guidance.\3\ On June 12, 2015, pursuant to CAA section 110(k)(5), EPA 
finalized an action (2015 SSM SIP Action) that clarified, restated, and 
updated EPA's interpretation that SSM exemption and affirmative defense 
SIP provisions are inconsistent with CAA requirements. In the 2015 SSM 
SIP Action, EPA also issued a finding that certain SIP provisions in 36 
states (applicable in 45 statewide and local jurisdictions) are 
substantially inadequate to meet CAA requirements and thus issued a 
``SIP call'' for each of the identified SIP provisions. 80 FR 33840. 
See also 78 FR 12460 (February 22, 2013) (proposed finding for SIP 
call). Delaware was among the 36 states that received a 2015 SIP call. 
EPA established a due date, November 22, 2016, for states subject to 
the SIP call to submit corrective SIP revisions.
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    \3\ After issuing a statement in 2020 to change aspects of the 
policy articulated in the 2015 SSM SIP Action, EPA in 2021 
reinstated and reaffirmed the 2015 policy (see September 30, 2021, 
memorandum ``Withdrawal of the October 9, 2020, Memorandum 
Addressing Startup, Shutdown, and Malfunctions in State 
Implementation Plans and Implementation of the Prior Policy,'' from 
Janet McCabe, Deputy Administrator). Neither the 2020 nor 2021 
guidance memoranda affected the SSM SIP call for Delaware, and, as 
stated in the McCabe memorandum, EPA intends to implement the 2015 
SSM SIP Action, including taking this action on the SIP submittal in 
partial response to the 2015 SIP call.
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    Several provisions in the Delaware SIP were identified in the 2015 
SIP call as substantially inadequate to meet CAA requirements. This 
included 7 DE Admin. Code 1108, Section 1.2 (Sulfur Dioxide Emissions 
from Fuel Burning Equipment), which stated that ``[t]he provisions of 
this regulation shall not apply to the start-up and shutdown of 
equipment which operates continuously or in an extended steady state 
when emissions from such equipment during start-up and shutdown are 
governed by an operation permit issued pursuant to the provisions of 
2.0 of 7 DE Admin. Code 1102.'' This SIP submission from Delaware that 
is the subject of this action contains a revised version of 7 DE Admin. 
Code 1108 to delete the language identified in the 2015 SSM SIP call 
formerly at Section 1.2. That language provided impermissible 
exemptions from the low sulfur fuel oil provisions where sources 
obtained permits from Delaware.

II. Summary of SIP Revision and EPA Analysis

    This SIP revision amends 7 DE Admin. Code 1108 sections 1.0 through 
3.0 and adds sections 4.0 and 5.0. The amendments to section 1.0 
(General provisions) remove language related to the start-up and 
shutdown of equipment and provide clarity to existing language 
pertaining to the fact that catalyst regeneration only applies to 
catalyst regeneration in fluid catalytic cracking operations.
    The amendments to section 2.0 (Limit on Sulfur Content of Fuel): 
(1) Remove language related to oil sampling methods and sulfur 
concentrations of residual and distillate fuels; (2) establish a 
compliance date of July 1, 2016, such that no person shall offer for 
sale, sell, deliver, or purchase any fuel having a sulfur content 
greater than the applicable limits established within the regulations, 
when such fuel is intended for use in any fuel burning equipment; (3) 
lower sulfur content in residual fuel from 1% by weight to 0.5% by 
weight; (4) lower sulfur content in distillate fuel from 3,000 ppm to 
15 ppm; and (5) establish a transitional period through June 30, 2017, 
for distillate fuel stored, offered for sale, sold, delivered, 
purchased, and used in Delaware prior to July 1, 2016, having a sulfur 
content greater than the limits specified within this regulation.\4\
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    \4\ These provisions address the Mid-Atlantic/Northeast 
Visibility Union (MANE-VU) regional haze strategy. See 79 FR 25506.
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    The amendments to section 3.0 (Emission Control in Lieu of Sulfur 
Content Limits of 2.0 of This Regulation) remove language and add 
clarifying language related to any fuel burning equipment employing 
emission controls of SO2 such that fuel burning equipment 
with controls achieving equal or better reductions are not subject to 
fuel sulfur limits.
    Section 4.0 (Sampling and Testing Methods and Requirements): (1) 
Establishes sampling and testing requirements for oil samples using 
standard American Society for Testing and Materials (ASTM) methods ASTM 
D4057-06; (2) establishes sampling and testing requirements for sulfur 
concentrations of residual and distillate fuels using the standard ASTM 
method D2622-10; and (3) allows the use of any alternative method found 
in 40 Code of Federal Regulations (CFR) 80.580 and/or approved by EPA 
and DNREC, to provide flexibility.
    Section 5.0 (Recordkeeping and Reporting) establishes certification 
and recordkeeping requirements for any person subjected to limits on 
sulfur content of fuel, when selling or delivering any fuel oil to be 
used in Delaware.
    In addition, this SIP revision removes section 1.2, which EPA 
determined in its June 12, 2015, SSM SIP Action to be substantially 
inadequate to meet CAA requirements and, therefore, SIP called pursuant 
to CAA section 110(k)(5). The provision was one of several that were 
identified as inadequate from the Delaware SIP because they 
impermissibly provide exemptions from otherwise applicable emissions 
limitations during periods of startup and shutdown.\5\
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    \5\ The Delaware specific portion of the 2015 SIP Call can be 
found at 80 FR 33960 (June 12, 2015).
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    This proposed SIP revision to implement low sulfur fuel oil 
provisions is expected to reduce regional haze and visibility 
impairment in Delaware. Additionally, decreased emissions of 
SO2 will contribute to the attainment, maintenance, or both, 
of the SO2 and PM2.5 NAAQS in Delaware and the 
surrounding areas.

III. Proposed Action

    Delaware's SIP revision, which incorporate amendments made to 7 DE 
Admin. Code 1108, will lower the maximum allowable sulfur content limit 
combusted or sold in Delaware and aid in reducing SO2 
emissions. These emissions are a cause of regional haze and reducing 
them will help Delaware and the surroundings areas to attain and 
maintain the SO2 and PM2.5 NAAQS.

[[Page 4530]]

EPA has determined that this SIP revision meets the requirements of the 
CAA. Therefore, EPA is proposing to approve the July 10, 2013, SIP 
revision which sets sulfur limits for combustion and sale in Delaware, 
as amended by Delaware on August 19, 2016. EPA is soliciting public 
comment on the issues discussed in this document. These comments will 
be considered before taking final action.
    In addition, based on Delaware's removal of the language in section 
1.2, which EPA identified in the 2015 SSM SIP Action as an 
impermissible SSM exemption provision, EPA proposes to find that this 
SIP revision adequately addresses the specific deficiency that EPA 
identified in the 2015 SSM SIP Action with respect to section 1.2 of 
the Delaware SIP. If EPA were to finalize approval of the SIP revision 
and finalize the finding that this SIP revision adequately addresses 
the SIP call, the SIP call for section 1.2 of the Delaware SIP would be 
resolved. The remaining portions of the SIP call issued to Delaware in 
2015 would remain in effect pending future EPA action.

IV. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference of the state 
rules being approved. In accordance with requirements of 1 CFR 51.5, 
EPA is thus proposing to incorporate by reference Delaware's Sulfur 
Dioxide Emissions from Fuel Burning Equipment requirements as described 
in 7 DE Admin. Code 1108, not including the last sentence of section 
3.0, which Delaware withdrew from this SIP revision. EPA has made, and 
will continue to make, these materials generally available through 
https://www.regulations.gov and at the EPA Region III Office (please 
contact the person identified in the For Further Information Contact 
section of this preamble for more information).

V. 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, regarding fuel oil sulfur limits 
for combustion and sale in the State of Delaware, 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, Particulate matter, Regional Haze, Sulfur oxides.

    Dated: January 13, 2022.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2022-01808 Filed 1-27-22; 8:45 am]
BILLING CODE 6560-50-P