[Federal Register Volume 87, Number 62 (Thursday, March 31, 2022)]
[Rules and Regulations]
[Pages 18699-18702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06615]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2020-0522; FRL-9666-02-R3]


Air Plan Approval; Delaware; Amendments To Control of Volatile 
Organic Compounds Mobile Equipment Repair and Refinishing Rule 
Regulation

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). This SIP 
revision consists of the 2010 amendments to the State of Delaware's 
Mobile Equipment Repair and Refinishing (MERR) regulations to 
incorporate the Ozone Transport Commission's (OTC) 2009 Motor Vehicle 
and Mobile Equipment Non-Assembly Line Coating Operations regulations 
(MVMERR) model rule. The MVMERR rule establishes updated volatile 
organic compounds (VOC) content limits for coating and cleaning 
solvents used in vehicle refinishing and standards for coating 
application, work practices, monitoring, and recordkeeping. 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 May 2, 2022.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2020-0522. 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: Sean Silverman, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650

[[Page 18700]]

Arch Street, Philadelphia, Pennsylvania 19103. The telephone number is 
(215) 814-5511. Mr. Silverman can also be reached via electronic mail 
at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 8, 2021 (86 FR 8561), EPA published a notice of 
proposed rulemaking (NPRM) for the State of Delaware. In the NPRM, EPA 
proposed approval of a formal SIP Revision submitted on May 6, 2020 on 
behalf of the State of Delaware by DNREC.
    Ozone is formed in the atmosphere by photochemical reactions 
between VOCs and nitrogen oxides (NOX) in the presence of 
sunlight. In order to reduce these ozone concentrations, the CAA 
requires control of certain VOC and NOX emission sources to 
achieve emission reductions in ozone nonattainment areas classified as 
Moderate and above. The 2002 MERR Model Rule was developed to reduce 
VOC emissions from automotive coatings and cleaning solvents associated 
with non-assembly line refinishing or recoating of motor vehicles, 
mobile equipment, and their associated parts and components. This rule 
was originally approved by EPA into Delaware's SIP on November 22, 2002 
(67 FR 70315) as part of a regional effort to attain and maintain the 
1-hour ozone national ambient air quality standards (NAAQS).
    The OTC 2009 MVMERR Model Rule \1\ is a revision of the 2002 MERR 
Model Rule developed by the OTC. The OTC's 2009 MVMERR Model Rule is 
based upon the California Air Resources Board's (CARB) Suggested 
Control Measure (SCM) for Automotive Coatings, published October 2005. 
In order to keep Delaware's regulations up to date with the OTC's 2009 
MVMERR Model Rule, Delaware revised its regulations, found at 7 Del. 
Admin. Code 1124, Control of Volatile Organic Compound Emissions; 
Section 11.0 Mobile Equipment Repair and Refinishing (Delaware's 2010 
amended MERR rule), on September 17, 2010. Delaware then submitted 
these 2010 amendments to EPA as a SIP revision on May 6, 2020.\2\
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    \1\ The OTC 2009 MVMERR Model Rule is available online at 
https://otcair.org/document.asp?fview=modelrules and included in the 
docket for this rulemaking, available online at https://www.regulations.gov, Docket ID: EPA-R03-OAR-2020-0522.
    \2\ During a recent internal review of the Delaware SIP, DNREC 
discovered that it had never submitted the 2010 Delaware regulatory 
changes adopting the 2009 OTC MVMERR Model Rule to EPA as a SIP 
revision. DNREC therefore submitted this SIP revision in May 2020 so 
that the EPA-approved SIP would correctly reflect the Delaware 
regulations.
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II. Summary of SIP Revision and EPA Analysis

    EPA has reviewed Delaware's May 6, 2020 MERR SIP submittal in the 
context of the requirements of CAA Sections 176a and 184 (interstate 
transport commissions and control of interstate ozone air pollution 
respectively). Delaware has amended 7 Del. Admin. Code 1124 Control of 
Volatile Organic Compound Emissions Section 11.0 Mobile Equipment 
Repair and Refinishing to meet these requirements in its May 6, 2020 
MERR SIP submittal. In this action, EPA is determining that the 
submitted MERR SIP meets the above-cited requirements of the CAA.
    Other specific requirements of Delaware's May 6, 2020 submittal and 
the rationale for EPA's proposed action are explained in the NPRM, and 
will not be restated here.

III. EPA's Response to Comments Received

    EPA received five sets of comments in response to the NPRM that are 
available in the docket for this action. Of these five sets of 
comments, one was outside of the scope of this rulemaking, and another 
was supportive, neither of which require a response by EPA. EPA 
provides summaries of the three sets of significant adverse comments 
and our responses below.
    Comment 1: One commenter claims that the DE MERR Rule should be 
disapproved due to rounding error that results from converting the 
regulatory VOC limits from pounds per gallon (lb/gal) to grams per 
liter (gm/l) and vice versa. The commenter uses the example that 
converting ``5.5 pounds per gallon to grams per liter we get 659.045 
grams per liter'' and converting ``660 grams per liter to pounds per 
gallon we get 5.50797 pounds per gallon.'' The commenter goes on to say 
``allowing these fractional amounts to be rounded off EPA is deceiving 
the public and allowing harmful VOC compounds to be emitted into the 
atmosphere. EPA can't allow duel [sic] limits in different units unless 
those units of measure are exactly equal.''
    Response 1: EPA does not agree that the SIP revision should be 
disapproved due to minor discrepancies that arise in table 11-1 which 
converts imperial units to metric units. The SIP revision explicitly 
defines the VOC Coating Regulatory content in equation 11-1 and states 
that units are in gm/l. Furthermore, certain EPA regulations also give 
limits in both imperial and metric units. Examples can be found in 
EPA's New Source Performance Standards (Standards of Performance for 
Electric Utility Steam Generating Units, 40 CFR part 60 subpart Da) and 
National Emissions Standards for Hazardous Air Pollutants (Surface 
Coating of Metal Furniture: National Emission Standards for Hazardous 
Air Pollutants, 40 CFR part 63 subpart RRRR). In these examples and in 
this SIP revision, these limits would be better conceived of as a limit 
defined by a range of possible compliant concentrations with any 
concentrations within the range (whether measured in imperial or SI 
units) representing compliance, rather than ``duel [sic] limits.'' 
However, in all cases the limits in Delaware's MERR are more stringent 
than the corresponding limits in the current SIP. This SIP revision is 
therefore approvable because it increases the stringency of the 
Delaware SIP.
    Comment 2: The commenter asserts that EPA cannot approve the DE 
MERR rule on grounds that it ``has yet to approve previous fixes to the 
same rule which address impermissible Startup Shutdowns and 
Malfunctions as detailed in EPA's 2015 SIP call.'' The commenter 
asserts that ``EPA must address the impermissible exceptions detailed 
in the SIP call for Rule 1124 before it adds new rules to the SIP 
otherwise these new rules can just be ignored in the same way. . . .''
    Response 2: The commenter asserts that EPA must resolve issues 
relating to Startup, Shutdown, and Malfunction (SSM) as described in 
the 2015 SIP call (80 FR 33840, June 12, 2015) before it can modify 
regulations pertaining to Delaware's MERR. The commenter correctly 
notes that an SSM provision subject to the 2015 SIP call is contained 
in Title 7 of the Delaware Administrative Code, Regulation 1124 
(Control of Volatile Organic Compound Emissions), Section 1.0 (General 
Provisions), subsection 1.4. 7 Del. Admin. Code Section 1124-1.4. This 
SSM subsection is not addressed in this rule. This rule pertains solely 
to revisions to Delaware Code section 11.0 (and its various 
subsections), and comprises SIP-strengthening changes to Delaware's 
rules that pertain to ``Mobile Equipment Repair and Refinishing.'' 
Revisions to address the SSM provision in 7 Del. Admin. Code Section 
1124-1.4 have been submitted to EPA and will be addressed in a separate 
action.
    It is worth noting the commenter does not articulate any reason why 
EPA must address the SSM provision before EPA can act on this SIP 
revision beyond drawing an analogy to hypothetical traffic regulations, 
and EPA does not know of any policy or legal reason why

[[Page 18701]]

we need to await resolution of an SSM provision contained in a 
different subsection of the same regulatory chapter prior to taking 
action on these SIP-strengthening measures.
    The updates to the MERR rule in 7 Del. Admin. Code Section 1124-11 
contain no SSM provisions or changes relating to SSM. Nothing in 7 Del. 
Admin. Code Section 1124-11 was subject to the 2015 SIP call cited by 
the commenter. Furthermore, the approval of the MERR provisions in 7 
Del. Admin. Code Section 1124-11 will be SIP strengthening independent 
of the outcome of action pertaining to 7 Del. Admin. Code Section 1124-
1.4. The new SIP strengthening requirements Delaware added to section 
11 include reduced VOC coating contents, specifications for the type of 
equipment that can be used for application techniques and the addition 
of requirements to document the manufacturer and VOC content of 
coatings. EPA believes that delaying the federal enforceability of 
these benefits through SIP approval of the MERR rule revisions will 
delay potential environmental benefits of having the strengthened 
provisions in the SIP. EPA therefore does not view this comment as a 
basis to alter the proposed action and is finalizing approval of the 
MERR as a revision to the Delaware SIP.
    Comment 3: The commenter asserts EPA cannot approve this SIP 
because this regulation will increase the cost for businesses in 
Delaware resulting from ``increased chemical use by some companies that 
are not located in Delaware, thereby driving up costs for Delaware 
businesses, which must bear the cost of treating the chemicals . . .'' 
The commenter goes on to suggest that the resulting cost outweighs the 
benefits.
    Response 3: EPA disagrees that the MERR SIP Revision should be 
disapproved based on the reasons given by the commenter. Although the 
commenter speculates that the SIP revision will result in ``increased 
chemical use by some companies that are not located in Delaware, 
thereby driving up costs for Delaware businesses, which must bear the 
cost of treating the chemicals'' the commenter does not offer any 
factual support for or data to back up this assertion. Comments that 
are no more than broad assertions that an agency ``got it wrong'' do 
not provide a basis for EPA to change its decision. See, e.g., 
International Fabricare Institute v. E.P.A., 972 F.2d 384 (D.C. Cir. 
1992). Furthermore, this SIP revision in no way impacts treatment of 
materials, so the mechanism suggested by the commenter for driving up 
costs is unrelated to the revisions as written. Therefore, EPA 
disagrees with the commenter that this comment provides a basis for 
disapproving this SIP Revision.

IV. Final Action

    EPA is approving the 2010 amended MERR rule as a revision to the 
Delaware SIP. EPA has determined that Delaware's 2010 amended MERR rule 
is consistent with the requirements and limits in the 2009 OTC MVMERR 
Model Rule. Therefore, its approval into the Delaware SIP would result 
in the VOC reductions in the 2010 amended MERR rule becoming federally 
enforceable and strengthen the SIP.

V. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of revisions to 
7 Del Admin. Code 1124 Control of Volatile Organic Compound Emissions 
Section 11.0 Mobile Equipment Repair and Refinishing described in the 
amendments to 40 CFR part 52 set forth below. 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). Therefore, these materials have 
been approved by EPA for inclusion in the SIP, have been incorporated 
by reference by EPA into that plan, are fully federally enforceable 
under sections 110 and 113 of the CAA as of the effective date of the 
final rule of EPA's approval, and will be incorporated by reference in 
the next update to the SIP compilation.\3\
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    \3\ 62 FR 27968 (May 22, 1997).
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VI. 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

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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 May 31, 2022. 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 revisions to 7 Del. Admin. Code 1124 
Control of Volatile Organic Compound Emissions Section 11.0 Mobile 
Equipment Repair and Refinishing 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: March 23, 2022.
Diana Esher,
Acting Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 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 (c) is amended by revising 
the entry ``Section 11.0'' under ``1124 Control of Volatile Organic 
Compound Emissions'' to read as follows:


Sec.  52.420   Identification of plan.

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    (c) * * *

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                                                                State
 State regulation  (7 DNREC 1100)       Title/subject         effective      EPA approval date      Additional
                                                                date                                explanation
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                               1124 Control of Volatile Organic Compound Emissions
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                                                  * * * * * * *
Section 11.0......................  Mobile Equipment           10/11/2010  3/31/2022, [insert
                                     Repair and                             Federal Register
                                     Refinishing.                           citation].
 
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[FR Doc. 2022-06615 Filed 3-30-22; 8:45 am]
BILLING CODE 6560-50-P